United States Court of Appeals
for the Federal Circuit
CLARA SUE PADGETT,
ERIC K. SHINSEKI, SECRETARY OF VETERANS
[End Page 2010-7081]
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 02-2259.
Decided: June 30, 2011
ERIC A. SHUMSKY, Sidley Austin, LLP, of Washington,
DC, argued for claimant-appellant. With him on the brief
were TARA MIKKILINENI and ANAND H. DAS. Of counsel on
the brief were BARTON F. STICHMAN and LOUIS J. GEORGE,
National Veterans Legal Services Program, of Washing-
MARTIN F. HOCKEY, JR., Assistant Director, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
respondent-appellee. With him on the brief were TONY
PADGETT v. DVA 2
WEST, Assistant Attorney General, JEANNE E. DAVIDSON,
Director, KIRK T. MANHARDT, Assistant Director, and
MEREDYTH COHEN HAVASY, Trial Attorney. Of counsel
was SAMEER P. YARAWADEKAR, Attorney. Of counsel on
the brief were MICHAEL J. TIMINSKI, Deputy Assistant
General Counsel, and MARTIN J. SENDEK, Attorney,
United States Department of Veteran Affairs, of Wash-
Before GAJARSA, MAYER, and O?MALLEY, Circuit Judges.
MAYER, Circuit Judge.
Clara Sue Padgett (?Mrs. Padgett?) appeals from a fi-
nal order of the United States Court of Appeals for Veter-
ans Claims (?Veterans Court?) denying, in part, her
application for an award of attorney fees and expenses
under the Equal Access to Justice Act (?EAJA?), 28 U.S.C.
Â§ 2412. See Padgett v. Shinseki, 23 Vet. App. 306
(?EAJA Decision?). Because we conclude that the Veter-
ans Court erred in refusing to award Mrs. Padgett fees for
attorney time expended following the death of her hus-
band, Barney O. Padgett (?Padgett?), we reverse and
Padgett served on active duty in the United States
Army from January 1943 until July 1945. He served in
Europe, Africa, and the Middle East, and was awarded,
among other commendations, the Bronze Star and the
Purple Heart. In August 1945, Padgett was awarded
disability benefits for a left knee injury he incurred while
in the Army. In March 1993, he filed a claim seeking service-connected benefits for a right hip injury, but his
claim was denied by a Department of Veterans Affairs
Regional Office (?RO?). In 1995, however, the Board of
3 PADGETT v. DVA
Veterans? Appeals (?board?) remanded the case to the RO
On remand, the RO again denied Padgett's claim, and
the board again reversed and remanded. Ultimately, in
December 1999, the board affirmed the RO's third denial
of Padgett's claim, concluding that his hip disability ?was
not incurred, directly or presumptively, in service? and
was ?not proximately due to or the result of [his] service-
connected left knee disability.?
In 2001, the Veterans Court vacated the board's deci- sion and remanded for reconsideration. See Padgett v.
Principi, No. 00-659, 2001 U.S. App. Vet. Claims LEXIS
339 (Mar. 26, 2001). On remand, the board denied
Padgett's claim, but a panel of the Veterans Court again
vacated the board's decision. See Padgett v. Principi, 18 Vet. App. 188
, 195-96 (2004). Both Padgett and the
Secretary of Veterans Affairs petitioned the court for en
banc review, which was granted on September 14, 2004.
On April 19, 2005, the Veterans Court issued an en banc
opinion reversing the board's decision to deny Padgett?s
claim for service connection. Padgett v. Nicholson, 19 Vet.
App. 133 (2005) (en banc) (?En Banc Decision?). The court
determined that the board's analysis of the issue of secon-
dary service connection?whether Padgett's hip disability
was aggravated by his service-connected left knee in-
jury?was ?simply not plausible in light of the record
viewed in its entirety.? Id. at 150 (citations and internal
quotation marks omitted). In the court's view, ?[t]he only
plausible resolution of the key factual issue on the record
in this case is that Mr. Padgett's right-hip disability was
aggravated by his service-connected left-knee disability.?
Id. Having resolved the issue of secondary service connec-
tion in Padgett's favor, the court remanded the case for an
assignment of a disability rating and a determination of
an effective date for the award of disability benefits. Id.
PADGETT v. DVA 4
The court also vacated and remanded on the question of
direct service connection, concluding that the board had
erred in rejecting the opinions of two physicians who submitted statements indicating that Padgett had injured
his right hip while on active duty. Id. at 151-52.
Shortly after the En Banc Decision issued, Padgett?s
attorney informed the Veterans Court that Padgett had
died on November 3, 2004. Soon thereafter, the Secretary
moved to recall the En Banc Decision and to dismiss
Padgett's appeal as moot. Mrs. Padgett opposed the
Secretary's motion and requested that she be substituted
for her husband on appeal in order to preserve the court?s
judgment granting her husband service connection. On
September 7, 2005, the Veterans Court (1) withdrew its
En Banc Decision; (2) dismissed Padgett's appeal as moot;
(3) vacated the underlying board decision; and (4) denied
Mrs. Padgett's motion to be substituted. Padgett v.
Nicholson, 19 Vet. App. 334
, 336 (2005) (?Withdrawal
On appeal, this court reversed. Relying upon a long
line of Supreme Court authority, we concluded that
Padgett's death did not moot the case because it had been
fully briefed and submitted to the Veterans Court prior to
his death. Padgett v. Nicholson, 473 F.3d 1364
(Fed. Cir. 2007) (?Padgett I?). We explained that ?[w]here
a party dies after his case is submitted, but before the
opinion issues, and the case would otherwise be rendered
moot, the Supreme Court has consistently entered judg-
ment nunc pro tunc to the date of the party's death.? Id.
We concluded, moreover, that Mrs. Padgett should be
allowed to substitute on her husband's appeal given ?[t]he
continuing relevance and preclusive effect? that the
adjudication of his claim had on her own claim for accrued
5 PADGETT v. DVA
benefits. 1 Id. at 1370. We explained that if the En Banc
Decision were withdrawn, the board's prior decision
denying Padgett benefits would be reinstated and ?would
adversely affect [Mrs. Padgett's own claim for accrued
benefits] in the same way it adversely impacted Padgett?s
claim at the time he filed his notice of appeal.? Padgett I,
473 F.3d at 1370.
In June 2006, while the appeal to this court was pend-
ing, Mrs. Padgett filed her own claim for accrued benefits.
The RO denied her claim, however, pointing to the board?s
previous decision denying Padgett's claim for service
connection. After Padgett I required the Veterans Court
to reinstate its En Banc Decision, however, the Secretary
instructed the RO to conduct a ?special review? of Mrs.
Padgett's accrued benefits claim. The RO thereafter
reversed its earlier decision and awarded Mrs. Padgett
accrued benefits. Relying upon the En Banc Decision, the
RO concluded that (1) it had erred in rejecting the opin-
ions of two physicians who had submitted statements
indicating that Padgett had injured his hip while on
active duty; and (2) its denial of Padgett's claim for direct service connection had been ?clearly and unmistakably
On July 8, 2008, on remand from this court, the Vet-
erans Court reinstated its En Banc Decision awarding
Padgett service connection nunc pro tunc to the day before
he died. Padgett v. Peake, 22 Vet. App. 159
, 167-68 (2008)
(?Nunc Pro Tunc Decision?). The court, however, denied
Mrs. Padgett's motion to substitute on her husband?s
claim. Id. at 163-64. In the court's view, Mrs. Padgett
1 Accrued benefits? are benefits that are ?due and
unpaid? to the veteran at the time of his death. 38 U.S.C.
Â§ 5121(a). A surviving spouse, or other appropriate
beneficiary, can receive these accrued benefits after a
veteran's death. Id.
PADGETT v. DVA 6
was deprived of standing to be substituted on her hus-
band's claim when the RO granted her application for
accrued benefits. Id. at 164.
On October 27, 2008, Mrs. Padgett filed an applica-
tion seeking $87,802.17 in attorney fees and expenses
under the EAJA as well as a motion to substitute for
purposes of pursuing the EAJA application on her hus-
band's behalf. The Secretary opposed the motion to substitute, noting that Mrs. Padgett had been denied substitution on her husband's claim following the Secre-
tary's decision to award her accrued benefits. On Febru-
ary 3, 2009, the Veterans Court issued an order asking
Mrs. Padgett to ?provide information as to whether she
[was] the executor or personal representative of
[Padgett?s] estate.? In response, Mrs. Padgett informed
the court that she was named the personal representative
of her husband's estate pursuant to his last will and
testament. The Veterans Court subsequently granted
Mrs. Padgett's motion to be substituted for purposes of
the EAJA proceedings, explaining that ?[a]lthough Mrs.
Padgett was denied substitution in the underlying merits
case, her status as the personal representative of her
deceased husband's estate gives her standing to be substi-
tuted in an EAJA action.?
On December 16, 2009, the Veterans Court granted,
in part, Mrs. Padgett's application for attorney fees.
EAJA Decision, 23 Vet. App. at 312-13. The court deter-
mined that Mrs. Padgett had the right, as the representa-
tive of Padgett's estate, to recover fees for attorney hours
expended on his claim prior to his death. It concluded,
however, that she had no right to recover fees for attorney
work performed after her husband's death, explaining
that she was deprived of ?standing? to substitute on
Padgett's claim when the DVA decided to award her
accrued benefits. Id. at 313.
7 PADGETT v. DVA
Mrs. Padgett filed a motion seeking full court review
of the Veterans Court's order, but this motion was denied
on March 4, 2010. She then appealed to this court.
We have jurisdiction over appeals from the Veterans
Court under 38 U.S.C. Â§ 7292. Interpretation of the EAJA
is a question of law, subject to de novo review. Kelly v.
Nicholson, 463 F.3d 1349
, 1352 (Fed. Cir. 2006).
Although the present case has a long and tortuous
history, the issue presented on appeal is a straightfor-
ward one: Can the surviving spouse of a deceased veteran,
who serves as the personal representative of his estate,
obtain fees under the EAJA 2 for attorney hours expended
following the veteran's death? We conclude that she can.
Pursuant to the EAJA, a ?prevailing party? in litiga-
tion against the government is entitled to recover reason-
able attorney fees and expenses unless the court finds the
position of the United States in the underlying litigation
was ?substantially justified.? 28 U.S.C. Â§ 2412(d)(1)(A).
The Veterans Court determined that Padgett was a
2 In relevant part, the EAJA provides:
Except as otherwise specifically provided by stat-
ute, a court shall award to a prevailing party
other than the United States fees and other ex-
penses, in addition to any costs awarded pursuant
to subsection (a), incurred by that party in any
civil action (other than cases sounding in tort), in-
cluding proceedings for judicial review of agency
action, brought by or against the United States in
any court having jurisdiction of that action, unless
the court finds that the position of the United
States was substantially justified or that special
circumstances make an award unjust.
28 U.S.C. Â§ 2412(d)(1)(A).
PADGETT v. DVA 8
?prevailing party? for purposes of the EAJA and that the
government's position in the underlying litigation was not
?substantially justified.? EAJA Decision, 23 Vet. App. at
309-12. It further determined that Mrs. Padgett, who had
been appointed the personal representative of her hus-
band's estate, had standing to seek an award of EAJA fees
on the estate's behalf. Id. at 310, 313. The court there-
fore granted Mrs. Padgett an EAJA award of $27,866.67
for 201 attorney hours expended on her husband's claim
prior to his death. Id. at 313. The court concluded,
however, that Mrs. Padgett could not recover approxi-
mately $60,000 in attorney fees incurred following her
husband's death, explaining that ?because Mrs. Padgett
has standing in this matter only as [the] representative of
her husband's estate . . . she is not entitled to an EAJA
award for the work and expenses expended after her
husband's death . . . .? Id.
Mrs. Padgett contends that the Veterans Court erred
in denying attorney fees for work performed following her
husband's death. She argues that ?[t]he Veterans Court
erroneously presupposed that no work done after a vet-
eran has died can be in support of the veteran's own claim
for benefits.? She asserts, moreover, that the decision to
deny attorney fees for time expended following her hus-
band's death ?is irreconcilable with [the] EAJA's remedial
purpose? and ?imposes a limitation on [the] EAJA that is
neither derived from the statute nor supported by [Fed-
eral Circuit precedent].?
We agree. The government points to nothing in the
text of the EAJA or its legislative history to support a per se rule denying recovery for attorney fees incurred after a
claimant's death. We reject the government's argument
that ?any litigation following [a] veteran's death inher-
ently cannot be litigation in pursuit of the veteran's own
claim for benefits.? Where, as here, litigation following a
9 PADGETT v. DVA
veteran's death is required to obtain a nunc pro tunc
judgment on his claim for service connection, attorney
hours devoted to such litigation are directly related to the
Following a veteran's death, certain specified survi-
vors have the right to recover the benefits that were due
and payable to him at the time of his death. See 38 U.S.C.
Â§ 5121(a); Phillips v. Shinseki, 581 F.3d 1358
, 1363 (Fed.
Cir. 2009). Although the survivor's claim is dependent on
the deceased veteran's claim, the survivor must file a separate application for accrued benefits. See 38 U.S.C.
Â§ 5121(c). Thus, while a survivor's claim for accrued
benefits is ?derivative of the veteran's claim for service
connection, it is nevertheless a separate claim based on a separate statutory entitlement to benefits.? Hyatt v.
Shinseki, 566 F.3d 1364
, 1367 (Fed. Cir. 2009) (citations
and internal quotation marks omitted).
Simply because a veteran's surviving spouse must
pursue her own separate claim for accrued benefits follow-
ing the veteran's death, however, does not mean that any
litigation following a veteran's death relates only to the survivor?s, rather than the veteran?s, claim. Where a
veteran's entitlement to a nunc pro tunc judgment is in
dispute, litigation on that judgment will necessarily
continue after his death. Indeed, the history of the pre- sent case illustrates that litigation on a veteran's claim
for service connection can continue long after he has died.
In March 1993, Padgett filed a claim seeking service-
connected benefits for a right hip disability. The DVA
repeatedly denied his claim, but in April 2005 an en banc
panel of the Veterans Court awarded him service connec-
tion after concluding that the board's previous denials of
his claim were ?simply not plausible in light of the record
viewed in its entirety.? En Banc Decision, 19 Vet. App. at
150 (citations and internal quotation marks omitted).
PADGETT v. DVA 10
Soon after its judgment issued, however, the Veterans
Court learned that Padgett had died during the pendency
of his appeal. The court thereafter withdrew its En Banc
Decision, dismissed Padgett's appeal as moot, and denied
Mrs. Padgett's motion to be substituted on her husband?s
On appeal, this court reversed, concluding that the
Veterans Court should not have withdrawn its decision,
but should instead have reissued that decision nunc pro
tunc to the date of Padgett's death. 3 Padgett I, 473 F.3d
at 1367-68. We explained that ?[w]here a party dies after
his case is submitted, but before the opinion issues, and
the case would otherwise be rendered moot, the Supreme
Court has consistently entered judgment nunc pro tunc to
the date of the party's death.? Id. at 1367. We further
concluded that the Veterans Court erred in denying Mrs.
Padgett's motion to be substituted on her husband?s
3 A judgment that is issued nunc pro tunc (which
literally means ?now for then?) assigns an earlier effective
date to a judgment than its actual date of issuance. Such
a judgment is generally used to correct the timing of a
judgment where its issuance has been delayed through no
fault on the part of the litigants:
[T]he rule established by the general concurrence
of the American and English courts is, that where
the delay in rendering a judgment or a decree
arises from the act of the court, that is, where the
delay has been caused either for its convenience,
or by the multiplicity or press of business, either
the intricacy of the questions involved, or of any
other cause not attributable to the laches of the
parties, the judgment or the decree may be en-
tered retrospectively, as of a time when it should
or might have been entered up.
Mitchell v. Overman, 103 U.S. 62
, 64-65 (1881); see
Padgett I, 473 F.3d at 1367.
11 PADGETT v. DVA
appeal. 4 Id. at 1371-72. Because of ?[t]he continuing
relevance and preclusive effect that the issues in
Padgett's appeal? had for her accrued benefits claim, Mrs.
Padgett had standing to be substituted on her husband?s
appeal. Id. at 1370.
Although Mrs. Padgett had standing to be substituted
on Padgett's appeal, there was no question that it was his
claim, not hers, that was being litigated. 5 Our holding
4 In 2008, after our decision in Padgett I, Congress
enacted legislation that expressly allows an accrued
benefits claimant to be substituted on a deceased vet-
If a claimant dies while a claim for any benefit
under a law administered by the Secretary, or an
appeal of a decision with respect to such a claim,
is pending, a living person who would be eligible
to receive accrued benefits due to the claimant
under section 5121(a) of this title may, not later
than one year after the date of the death of such
claimant, file a request to be substituted as the
claimant for the purposes of processing the claim
38 U.S.C. Â§ 5121A(a)(1).
This provision only applies in cases in which the vet-
eran died after October 10, 2008. See Veterans? Benefits
Improvement Act of 2008, Pub. L. No. 110-389, 122 Stat.
5 It has sometimes been asserted that ?a veteran?s
claim dies when he does,? but this proposition ?is too
broadly stated.? Withdrawal Order, 19 Vet. App. at 338
(Kasold, J., dissenting). A veteran's claim ?dies? when he
does in that the veteran's entitlement to disability bene-
fits ends when he dies. See Haines v. West, 154 F.3d 1298
, 1300 (Fed. Cir. 1998) (?By statute, a veteran?s
entitlement to payment of disability compensation termi-
nates on the last day of the month preceding the veteran?s
death.?). Furthermore, the veteran's estate has no right
PADGETT v. DVA 12
was that ?entering Padgett's judgment? on a nunc pro tunc
basis was consistent with the statutes governing the
jurisdiction of the Veterans Court. Id. at 1368 (emphasis
added). Indeed, litigation on Padgett's claim was not fully
resolved until July 8, 2008?nearly four years after he
died?when the Veterans Court entered a nunc pro tunc
judgment on that claim. See Nunc Pro Tunc Decision, 22
Vet. App. at 168.
By necessity, a veteran's successor in interest must
litigate to obtain a nunc pro tunc judgment on his behalf.
See Phillips, 581 F.3d at 1365 (allowing the daughter of a
deceased veteran to be substituted on her father's claim
to obtain disability payments that were due and unpaid to
the veteran at the time of his death. See Richard v. West,
161 F.3d 719
, 722-23 (Fed. Cir. 1998). Rather, as noted
previously, it is the accrued benefits claimant?typically
the surviving spouse?who has the right to any benefits
that were due when the veteran died. See 38 U.S.C.
Under certain circumstances, however, a veteran?s
claim can survive his death. Where, as here, a veteran
dies after his case has been submitted to the Veterans
Court, but before the court has entered judgment on his
claim, a qualified accrued benefits claimant can substitute
on appeal in order to obtain a judgment on the veteran?s
claim. Phillips, 581 F.3d at 1363-66; Padgett I, 473 F.3d
at 1367-70. In such situations, the veteran's claim sur-
vives his death for purposes of allowing litigation on it to
be fully resolved, thereby permitting the accrued benefits
claimant to rely on any judgment entered on the veteran?s
claim in pursuing his or her own application for accrued
benefits. See Padgett I, 473 F.3d at 1369 (emphasizing
that an accrued benefits claim ?derives from the veteran's service-connection claim? and ?incorporates any prior
adjudications of the service-connection issue on claims
brought by the veteran? (citations and internal quotation
13 PADGETT v. DVA
for disability compensation). This does not mean, how-
ever, that the veteran's own claim is not being litigated
following his death or that a veteran's estate should be
precluded from recovering fees for litigation undertaken
on his behalf. Here, litigation following Padgett's death
was a prerequisite to obtaining a nunc pro tunc judgment
on his claim and we see no reason that his estate should
be precluded from recovering reasonable attorney fees for
hours expended during this litigation. Courts routinely
allow estates to recover fees and expenses under fee- shifting statutes such as the EAJA. 6 See Phillips, 581
F.3d at 1368 (explaining that ?there is no need for the
representative of an estate to have a separate [accrued
benefits] claim in order to prosecute the deceased claim-
ant's EAJA claim?); see also Smalbein ex rel Smalbein v.
City of Daytona Beach, 353 F.3d 901
, 903-08 (11th Cir.
2003); Geissal ex. rel. Geissal v. Moore Med. Corp., 338 F.3d 926
, 935-36 (8th Cir. 2003); Estate of Woll v. United
States, 44 F.3d 464
, 467-68 (7th Cir. 1994).
Most of the attorney fees that were denied by the Vet-
erans Court relate to attorney hours devoted to the first
appeal to this court. The government's arguments as to
why such fees are not recoverable are internally inconsis-
tent. The government acknowledges that Padgett was a
?prevailing party? for purposes of obtaining an EAJA
award. Padgett prevailed, however, only as a result of
litigation occurring after his death. As discussed previ-
ously, although the En Banc Decision awarded Padgett service connection, the Veterans Court vacated that
6 In Phillips, we allowed the daughter of a deceased
veteran, who was the representative of his estate but who
was not herself an accrued benefits claimant, to pursue an
EAJA application on behalf of her father's estate. 581
F.3d at 1368.
PADGETT v. DVA 14
decision when it learned of his death. It was only because
of the successful appeal to this court, see Padgett I, 473
F.3d at 1367-70, that the En Banc Decision was rein- stated and Padgett became a ?prevailing party.? Thus, on
the one hand, the government concedes that Padgett was
a prevailing party as a result of the Padgett I appeal. On
the other hand, it argues that no fees can be recovered for
attorney time expended on that appeal because ?any
litigation following the veteran's death inherently cannot
be litigation in pursuit of the veteran's own claim for
benefits.? The government provides no satisfactory ex-
planation, however, for how an appeal that is necessary to
establish a veteran's status as a prevailing party could
possibly be litigation that is ?inherently? unrelated to that
We likewise reject the government's argument that
this court has no jurisdiction over this appeal because it
involves only a factual determination regarding the
?reasonableness? of Mrs. Padgett's fee request. There is
no dispute that this court lacks authority to review chal-
lenges to factual determinations made in veterans? cases.
See 38 U.S.C. Â§ 7292(d)(2). Whether the EAJA permits
the award of attorney fees for time expended pursuing a
nunc pro tunc judgment following a veteran's death,
however, is a question of statutory interpretation that
falls squarely within the scope of our appellate jurisdic-
tion. Id. Â§ 7292(d)(1).
Accordingly, the order of the United States Court of
Appeals for Veterans Claims is reversed and the case is
remanded for further proceedings consistent with this
15 PADGETT v. DVA
Appellant shall have her costs.
REVERSED AND REMANDED