Wagner v. Shinseki

Wagner v. Shinseki, 733 F.3d 1343 (Fed. Cir. Oct. 24, 2013)
Filing a supplemental Equal Access to Justice Act (EAJA) application does not abate the finality of a previously filed EAJA application for which judgment and mandate have already been entered. A pending request for supplemental EAJA fees is separate from the underlying application for EAJA fees.

In this case, the appellant won a remand from the CAVC and filed an EAJA application. The government conceded that the appellant was a prevailing party, but contested the amount. The CAVC granted the fee application, but reduced the fee in response to the government’s challenge.

The appellant then filed a supplemental EAJA application. Before ruling on the supplemental application, the CAVC entered judgment on the initial award. The Court revoked judgment the next day, with no explanation. The appellant moved the Court to enter judgment and the Court denied the motion. That same day, the Court denied the supplemental EAJA application.

The appellant appealed this decision to the Federal Circuit, which reversed, holding that because Mr. Wagner was partially successful in defending the initial EAJA application, he was entitled to a commensurate supplemental fee. The CAVC subsequently granted Mr. Wagner’s supplemental EAJA application and entered judgment – but the judgment order did not explicitly say whether it applied to both the initial and/or supplemental EAJA applications.

Mr. Wagner then filed a second supplemental application, this time for his successful appeal to the Federal Circuit. Nine months later, Mr. Wagner had yet to receive any payment on his initial or supplemental EAJA applications. He filed a motion for judgment with the CAVC. The Court granted his second supplemental EAJA application, reducing his fees by 41.5 fewer hours than he had requested. The Court denied the motion for judgment because it stated that the Secretary opposed the motion and the Court would not “circumvent his appellate rights.”

Mr. Wagner appealed the CAVC’s refusal to order the government to promptly pay his initial and first supplemental EAJA applications. The Federal Circuit concluded that the CAVC “relied on an incorrect view of the law” in denying the appellant’s motion for judgment on the initial and first supplemental EAJA applications. The Federal Circuit found that the CAVC’s sole explanation for its decision – to not “circumvent [the Secretary’s] appellate rights” – was erroneous because the Secretary did not appeal the CAVC’s decisions regarding the initial and first supplemental EAJA awards.

The government also argued that the timing provision of the EAJA itself precluded entry of judgment on a fee application if a supplemental application was pending. The Federal Circuit rejected this argument, finding that the EAJA’s timing requirement is satisfied when an initial application is filed within 30 days of the merits judgment and that this timing provision does not apply to supplemental EAJA applications. The Federal Circuit noted that nothing in the EAJA supports long delays in issuing enforceable judgments for payments – and that the prompt payment of attorney’s fees “plays the particularly important role in the veterans’ adjudicatory system of ensuring that litigants will not be deterred from seeking review of, or defending against, unjustified governmental action because of the expense involved.” *10 (internal quotation marks omitted).