Robert L. Smith appealed multiple Board denials to the Veterans Court and succeeded on one claim. He then sought EAJA fees, including 18 hours his appellate counsel spent initially reviewing a 9,389-page record before identifying and briefing issues. The Veterans Court reduced those hours on the theory that, because Smith prevailed on only one of seven issues, the record-review time had to be apportioned between successful and unsuccessful claims.

The Federal Circuit reversed that fee reduction. The court held that the Veterans Court misconstrued 28 U.S.C. § 2412 by treating partial success as requiring an automatic reduction in the time spent on the initial record review. Relying on EAJA principles and Hensley, the court explained that counsel’s initial review is often indispensable to any appeal and may be reasonably expended even if the review ultimately uncovers both winning and losing theories. The proper inquiry is whether the time was reasonably necessary for the successful appeal, not whether the appeal later succeeded on every issue raised.

The court therefore remanded for an increased EAJA award reflecting the full compensable record-review time. The decision matters because it limits mechanical apportionment of EAJA fees and supports compensation for the baseline work required to evaluate a veterans record before appellate briefing.

EAJA fees may include reasonable attorney time spent on initial review of the full administrative record when that review is necessary to prepare a successful appeal, and such time is not automatically reducible merely because the appellant prevailed on fewer than all issues.

EAJA fee requests should be defended on the ground that initial record review is a necessary, case-wide appellate task; courts should ask whether the work was reasonably expended, not whether it can be divided by the number of successful issues.

It prevents an overly mechanical reduction of EAJA fees in partially successful veterans appeals and ensures counsel can be compensated for the essential work of reviewing a large record before issue selection. That helps preserve meaningful appellate representation in the Veterans Court system.

Automatic apportionment of EAJA fees based on partial success rather than reasonable necessity of the work.

An attorney reviews a 10,000-page Record Before the Agency to determine which issues to brief. If the veteran prevails on one of several issues, the government should not automatically demand a proportional haircut to all record-review hours simply because some later-briefed issues failed.

Use this case to argue that initial record review is recoverable EAJA time when it was reasonably necessary to identify and prepare successful appellate issues, even in mixed-result cases. It is especially useful to oppose fee reductions that rely on issue-count formulas or simplistic success ratios.

Hensley v. Eckerhart, Comm’r v. Jean, Patrick v. Shinseki, Wagner v. Shinseki, Elcyzyn v. Brown, Vazquez-Flores v. Shinseki, Cline v. Shinseki