Parrott v. Shulkin ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
PAULA PARROTT,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2016-1450
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-3209, Chief Judge Lawrence B.
Hagel.
______________________
Decided: March 13, 2017
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
ALBERT S. IAROSSI, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent-appellee. Also
represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., CLAUDIA M. BURKE; BRIAN D. GRIFFIN,
DEREK SCADDEN, Office of General Counsel, United States
Department of Veterans Affairs, Washington, D.C.
______________________
2 PARROTT v. SHULKIN
Before HUGHES, SCHALL, and STOLL, Circuit Judges.
SCHALL, Circuit Judge.
Paula Parrott appeals the decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) in Parrott v. McDonald, No. 14-3209(E), 2015 WL
5948165 (Vet. App. Oct. 14, 2015). In that decision, the
Veterans Court awarded Ms. Parrott $4,050 in attorney
fees and expenses under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d) (2012). On appeal, Ms.
Parrott argues that, in arriving at its award of attorney
fees, the Veterans Court misinterpreted EAJA. As a
result, she contends, the court adopted an incorrect ap-
proach for determining the cost of living adjustment to be
used in calculating her attorney’s hourly rate. She also
contends that the court then abused its discretion by not
allowing her to resubmit her EAJA application using the
approach the court had adopted.
For the reasons set forth below, we hold that the Vet-
erans Court did not err with respect to its cost of living
adjustment determination. We also hold that we lack
jurisdiction to address Ms. Parrott’s contention that the
court abused its discretion in not allowing her to resubmit
her EAJA application. The decision of the Veterans Court
is therefore affirmed.
BACKGROUND
I.
The pertinent facts are not in dispute. On August 4,
2014, the Board of Veterans Appeals (“Board”) denied Ms.
Parrott’s claims for benefits on account of her veteran
husband’s esophageal adenocarcinoma, with liver and
peritoneal metastasis, and his ensuing death. Subse-
quently, on May 19, 2015, the Veterans Court vacated the
Board’s decision and remanded the case to the Board for
further development and readjudication. Order, Parrott
v. McDonald, No. 14-3209 (Vet. App. May 19, 2015).
PARROTT v. SHULKIN 3
Following the court’s decision, Ms. Parrott timely filed for
attorney fees and expenses under EAJA.
II.
In relevant part, EAJA provides as follows:
Except as otherwise specifically provided by
statute, a court shall award to a prevailing party
other than the United States fees and other ex-
penses . . . , incurred by that party in any civil ac-
tion . . . , including proceedings for judicial review
of agency action, brought by or against the United
States in any court having jurisdiction of that ac-
tion, 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. § 2412(d)(1)(A).
In the proceedings below, the Secretary agreed that
Ms. Parrott was a prevailing party and that his position
in the underlying litigation was not substantially justi-
fied. In addition, the Secretary did not contend that there
were any special circumstances that made an award to
Ms. Parrott unjust. Thus, the sole issue before the Veter-
ans Court was whether Ms. Parrott was entitled to the
amount of fees and expenses she claimed. In her EAJA
application, Ms. Parrott sought to recover attorney fees in
the amount of $7,169.21 and $50.00 in expenses (repre-
senting the filing fee in the Veterans Court).
EAJA states that “attorney fees shall not be awarded
in excess of $125 per hour unless the court determines
that an increase in the cost of living . . . justifies a higher
fee.” 28 U.S.C. § 2412(d)(2)(A); see also Levernier Constr.,
Inc. v. United States, 947 F.2d 497, 503 (Fed. Cir. 1991)
(“[T]he court may adjust the statutory cap governing the
rate of attorneys fees upward to account for an increase in
the cost of living.”). When a court makes an upward
adjustment in the cap governing the rate of attorney fees,
4 PARROTT v. SHULKIN
it usually calculates the adjustment using either the
national Consumer Price Index (“CPI”) for Urban Con-
sumers or a local CPI. See Thangaraja v. Gonzales, 428
F.3d 870, 876–77 (9th Cir. 2005) (calculating hourly rate
adjustments using the national CPI); Mannino v. West, 12
Vet. App. 242, 243 (1999) (calculating hourly rate adjust-
ments using a local CPI); see also Sprinkle v. Colvin, 777
F.3d 421, 427–28 & n.2 (7th Cir. 2015) (collecting cases).
For convenience, we refer to these two methodologies,
respectively, as the “national CPI approach” and the “local
CPI approach.” The national CPI approach generally
focuses on the national scope of the statutory cap and the
ease of computation. See Jawad v. Barnhart, 370 F.
Supp. 2d 1077, 1085–88 (S.D. Cal. 2005) (adopting the
national CPI approach due to EAJA’s countrywide cap
and pragmatic concerns with using local indices). The
local CPI approach typically focuses on where an attorney
works and has his or her office. See Mannino, 12 Vet.
App. at 243 (reasoning that upward cost of living adjust-
ments should account for “the actual CPI increase where
the attorney works”).
Ms. Parrott’s claim for attorney fees of $7,169.21 was
based on 37.4 alleged hours of work by her attorney at an
hourly billing rate of $191.69. 1 To arrive at this rate, Ms.
1 Calculating an attorney’s hourly rate usually in-
volves identifying a single, representative date on which
the attorney’s services were rendered—often called the
“midpoint” date—and then using the midpoint date to
determine the cost of living adjustment. See Chiu v.
United States, 948 F.3d 711, 722 n.10 (Fed. Cir. 1991); see
also Elcyzyn v. Brown, 7 Vet. App. 170, 181 (1994). Before
the Veterans Court, Ms. Parrott agreed to modify the
midpoint date of her CPI calculation from January 2015
to May 2015, thereby reducing the hourly rate requested
for her attorney to $190.19. Parrott, 2015 WL 5948165,
PARROTT v. SHULKIN 5
Parrott calculated a CPI adjustment using the CPI for
Washington, D.C. Ms. Parrott stated that her attorney,
Chris Attig, had his principal office in Dallas, Texas, but
also maintained offices in Little Rock, Arkansas, and San
Francisco, California, and that he worked on her case in
all three offices. Ms. Parrott argued that, although only
“a very small portion of work” in the case was performed
in Washington, D.C., J.A. 62, using the Washington, D.C.
CPI was consistent with the Veterans Court’s decision in
Mannino. According to Ms. Parrott, applying the Wash-
ington, D.C. CPI “fulfill[ed] the intent of Mannino (apply-
ing the local cost-of-living increase actually experienced
by an EAJA applicant represented by a Firm where work
was performed nationally, but always before the Court in
Washington, DC) . . . .” J.A. 68. Ms. Parrott declined to
provide, as alternatives, either four separate billing rates
based upon the CPIs for Dallas, Little Rock, San Francis-
co, and Washington, D.C., or a billing rate based solely
upon the CPI for Dallas. J.A. 62.
Responding to Ms. Parrott’s application, the Secretary
acknowledged that an adjustment of the $125 statutorily-
capped rate was appropriate. J.A. 29–30. He argued,
though, that the adjustment should be calculated using
the CPI for Dallas, Texas, where Mr. Attig had his princi-
pal office. This approach resulted in an hourly billing
rate of $183.74. J.A. 42.
III.
The Veterans Court declined to follow either Ms. Par-
rott’s or the Secretary’s approach, concluding that neither
the CPI for Washington, D.C., nor the CPI for Dallas,
Texas, was appropriate. “Rather,” the court stated, “the
at *1 n.1 (citing J.A. 61 n.2). In her appeal, Ms. Parrott
seeks the original hourly rate of $191.69. See Appellant
Opening Br. 19; Appellant Reply Br. 3.
6 PARROTT v. SHULKIN
fairer course is to use the cost of living actually experi-
enced by Mrs. Parrott’s attorney where the legal services
were performed.” Parrott, 2015 WL 5948165, at *3 (in-
ternal quotation marks and alterations omitted) (quoting
Porter v. Astrue, 999 F. Supp. 2d 35, 39 (D.D.C. 2013)).
Starting from that premise, the court reasoned that the
approach most consistent with Mannino was to use the
local CPI to calculate the hourly rate for each of the three
locations in which Mr. Attig performed work—Dallas,
Little Rock, and San Francisco—and then to review Mr.
Attig’s itemized billing statement and apportion each of
the forty-two billing entries listed to each of his firm’s
offices where work was performed. Id.
Noting that the burden was on Ms. Parrott “to show
the reasonableness of the fees requested,” id. (citing Blum
v. Stenson, 465 U.S. 886, 897 (1984)), the Veterans Court
stated that Ms. Parrott had failed to carry that burden:
To grant the fees requested by Mrs. Parrott,
the Court would have to make a determination
that it is reasonable for an attorney appearing be-
fore this Court of national practice to request fees
at the Washington, D.C., metropolitan area hourly
rate for services performed in locations outside of
the Washington, D.C., metropolitan area. Mrs.
Parrott has failed to meet her burden of showing
the reasonableness of the fees she requested.
Id. at *4.
As seen, the Veterans Court determined that the cor-
rect approach for determining Mr. Attig’s fee was to use
the local CPI to calculate the hourly rate for each of the
three locations in which Mr. Attig performed work and to
then review Mr. Attig’s itemized billing statement and
apportion each billing entry to the firm office where the
work resulting in the entry was performed. The court
stated, however, that “[t]o grant . . . fees under the stand-
ard the Court has determined is proper . . . the Court
PARROTT v. SHULKIN 7
would have to seek additional information from Mrs.
Parrott and her attorney (namely the amount of work
performed in each office) and calculate four separate
hourly rates.” Id. at *4. Declining to take on this task,
the court stated it would, instead, award attorney fees at
the statutory rate of $125. Id. After finding that 32 was
a reasonable number of hours for the work performed by
Mr. Attig, the court ruled that Ms. Parrott was entitled to
recover attorney fees in the amount of $4,000 (32 hours of
attorney work, billed at the rate of $125 per hour), plus
$50 in filing fees, for a total recovery of $4,050. Ms.
Parrott timely appealed the Veterans Court’s decision.
We have jurisdiction under 38 U.S.C. § 7292.
DISCUSSION
I.
Section 7292 of title 38 provides that we “‘shall decide
all relevant questions of law’ arising from appeals from
decisions of the Veterans Court, but, ‘[e]xcept to the
extent that an appeal . . . presents a constitutional issue,
[we] may not review (A) a challenge to a factual determi-
nation, or (B) a challenge to a law or regulation as applied
to the facts of a particular case.’” Sneed v. McDonald, 819
F.3d 1347, 1350–51 (Fed. Cir. 2016) (quoting 38 U.S.C.
§ 7292(d)(1)–(2)). As noted, Ms. Parrott argues that, in its
decision on her attorney fees application, the Veterans
Court misinterpreted EAJA.
An argument that the Veterans Court misinterpreted
a statute falls within our jurisdiction. See Cameron v.
Shinseki, 721 F.3d 1365, 1368 (Fed. Cir. 2013) (holding
that we have jurisdiction over the Veterans Court’s inter-
pretation of statutes); Bowey v. West, 218 F.3d 1373, 1376
(Fed. Cir. 2000) (holding that the Veteran Court’s inter-
pretation of EAJA presents a question of law within our
jurisdiction). Because they present issues of law, we
review questions of statutory interpretation from the
Veterans Court de novo. Bowey, 218 F.3d at 1376 (“Statu-
8 PARROTT v. SHULKIN
tory interpretation is a question of law, which we review
without deference.”); see also Hudgens v. McDonald, 823
F.3d 630, 634 (Fed. Cir. 2016) (“We review statutory and
regulatory interpretations of the Veterans Court de novo.”
(quoting Johnson v. McDonald, 762 F.3d 1362, 1364 (Fed.
Cir. 2014))).
II.
Ms. Parrott argues that the Veterans Court miscon-
strued EAJA by requiring her to calculate the cost of
living adjustment to her attorney’s hourly rate using the
local CPI approach. Appellant Opening Br. 5–14. Accord-
ing to Ms. Parrott, EAJA does not mandate a particular
method for computing attorney fees, and the Veterans
Court therefore erred by requiring a specific approach for
every case. Id. at 13. Continuing, Ms. Parrott urges that
there is ambiguity in EAJA because it does not specify the
CPI approach to be used in calculating an attorney’s
hourly rate. From there, she contends that, because
ambiguity in a statute relating to veterans benefits is to
be construed in favor of the veteran, she should be per-
mitted to use the CPI approach yielding the highest
return in fees. 2 Id. at 16–17. In Ms. Parrott’s view, this
“optimal yield” approach allows her to select the CPI of
“the location of [her] attorney or the location of the Veter-
ans Court.” Id. at 17. Here, Ms. Parrott contends that
she is entitled to use the CPI for the location of the Veter-
ans Court—Washington D.C. 3 Id. at 3, 8, 25.
2 Ms. Parrott takes the position that, when applied
to litigation in the Veterans Court, EAJA becomes a
veterans benefits statute. Oral Argument at 4:18–4:43
(No. 16-1450), available at http://oralarguments.cafc.
uscourts.gov/default.aspx?fl=2016-1450.mp3.
3 As noted, Ms. Parrott’s attorney maintains an of-
fice in San Francisco and worked on her case there.
PARROTT v. SHULKIN 9
The Secretary responds that the Veterans Court com-
plied with its precedent in Mannino. Appellee Response
Br. 10–12. While acknowledging that courts have split in
their use of the national CPI and the local CPI approach-
es, he urges that the “weight of authority” favors the local
CPI approach. Id. at 13–14. In the Secretary’s view, the
local CPI approach is more consistent with the plain
language of EAJA because “prevailing market rates” and
the “cost of living” are inherently local phenomena. Id.
at 18–21. Moreover, he continues, the local CPI approach
produces fairer outcomes because it accounts for the
actual cost of living experienced by the EAJA applicant’s
attorney. Id. at 21–24. The Secretary also resists Ms.
Parrott’s optimal yield approach, arguing that EAJA is
not a veterans benefits statute, but rather a statute of
general application. He also argues that EAJA represents
a waiver of sovereign immunity and thus should be strict-
ly construed in the government’s favor. Id. at 24–28.
III.
A.
As in any statutory construction case, we begin with
the plain language of the statute. See Sebelius v. Cloer,
133 S. Ct. 1886, 1893 (2013). EAJA reimburses prevailing
Parrott, 2015 WL 5948165, at *2 n.3. San Francisco has a
higher CPI than Washington, D.C. See Appellant Open-
ing Br. 19–20; Appellant Reply Br. 4. Ms. Parrott’s ar-
gument ostensibly would allow her to use San Francisco’s
CPI to calculate her attorney’s hourly rate, but she does
not urge that approach.
In addition, on appeal, Ms. Parrott does not challenge
the reduction of billable hours from 37.4 (as claimed in
her EAJA application) to 32 (as allowed by the Veterans
Court). J.A. 6–7, 26. The award of $50 in filing fees also
is not in dispute.
10 PARROTT v. SHULKIN
parties in certain civil actions against the United States
for “reasonable attorney fees.” 28 U.S.C. § 2412(d)(2)(A).
Attorney fees must be “based upon prevailing market
rates” and are statutorily capped at “$125 per hour unless
the court determines that an increase in the cost of liv-
ing . . . justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A)
(emphases added).
In Mannino, the Veterans Court adopted the local CPI
approach for calculating increases in hourly attorney
rates above the EAJA cap. Mannino, 12 Vet. App. at 243.
The court held that EAJA presumptively limits an attor-
ney’s hourly rate to $125 and that any upward adjust-
ment must be based on the local CPI “where the attorney
works.” Id. The Veterans Court noted that there is a
split of authority on this issue and that some district
courts do use the national CPI approach. Id. at 243–44.
The court determined, however, that using the local CPI
approach is the “fairer course” because it better reflects
the “cost-of-living increases actually experienced by the
EAJA applicant.” Id. at 243 (internal alterations omitted)
(quoting Cox Constr. Co. v. United States, 17 Cl. Ct. 29, 37
(1989)).
The question addressed in Mannino appears to be one
of first impression in this court. In Chiu v. United States,
948 F.3d 711 (Fed. Cir. 1991), we reviewed a decision
from the United States Claims Court that used local cost
of living figures to calculate EAJA fees, but we took no
position on the propriety of that approach. See 948 F.2d
at 713 (accepting without comment the local Washington,
D.C. cost of living), 719 (taking issue with the date of the
Claims Court’s cost of living but not its location). Similar-
ly, in Levernier, we reversed the Claims Court’s upward
adjustment of EAJA fees where market rates were below
the statutory cap, but we did not address whether the
local or the national CPI should apply where market rates
were above the cap. 947 F.2d at 503–04. Finally, in Doty
v. United States, 71 F.3d 384 (Fed. Cir. 1995), we awarded
PARROTT v. SHULKIN 11
EAJA fees based upon an hourly rate above the statutory
cap, but in that case the government did not contest the
manner of calculating attorney fees, and we thus had no
occasion to rule on the question before us now. 71 F.3d at
387. None of these cases provides controlling guidance on
the proper CPI approach under EAJA. 4
4 Neither has the issue been addressed in our Vac-
cine Act cases, as the Vaccine Act implements a fee-
shifting statute textually different from EAJA. In Avera
v. Secretary of HHS, 515 F.3d 1343 (Fed. Cir. 2008), for
example, we explained how the “forum rate”—the rate of
the location where the court sits—serves as the “lodestar”
in attorney fees calculations under the Vaccine Act. 515
F.3d at 1349. The Vaccine Act, however, provides com-
pensation only for “reasonable attorneys’ fees.” 42 U.S.C.
§ 300aa–15(e)(1). Unlike EAJA, the Vaccine Act does not
include a statutory cap or grant upward adjustments
based on “the cost of living.” 28 U.S.C. § 2412(d)(2)(A).
Thus, Avera does not instruct us how to augment a statu-
tory rate cap with an express “cost of living” modifier.
Avera ultimately used an exception to the forum rule
from Davis Co. Solid Waste Mgmt. & Energy Recovery
Special Serv. Dist. v. EPA, 169 F.3d 755, 758 (D.C. Cir.
1999), to apply a lower local CPI rate. Avera, 515 F.3d at
1349–50. This exception applies when the bulk of an
attorney’s work occurs outside the forum and there is a
significant difference in attorney compensation between
the forum and the location of the work. Davis, 169 F.3d
at 759–60. The purpose of the exception is to prevent
windfalls to attorneys—the same consideration undergird-
ing EAJA generally and, as seen below, the local CPI
approach in particular. See Hyatt v. Barnhart, 315 F.3d
239, 254 (4th Cir. 2002); Hamblen v. Colvin, 14 F. Supp.
3d 801, 809 (N.D. Tex. 2014).
12 PARROTT v. SHULKIN
After considering the statutory text and the relevant
cases, we think the local CPI approach, where a local CPI
is available, see Mannino, 12 Vet. App. at 243, is more
consistent with EAJA than the national approach. We
therefore hold that the Veterans Court did not err in
ruling that the local CPI approach represented the correct
method of calculating the adjustment in Ms. Parrott’s
attorney’s hourly rate. 5
The local CPI approach gives the most effect to the
statutory text. EAJA expressly defines recoverable attor-
ney fees in terms of “prevailing market rates for the kind
and quality of the services furnished” and states in rele-
vant part that attorney fees shall not be awarded in
excess of $125 per hour unless the court determines that
an increase in “the cost of living” justifies a higher fee. 28
U.S.C § 2412(d)(2)(A). These two factors—market rates
and the cost of living—strike us as being inherently local
in nature. We thus believe that using the market rate
and the cost of living actually experienced by an EAJA
applicant’s attorney is most consistent with EAJA’s plain
5 Ms. Parrott suggests in passing that calculating
hourly rate adjustments using the CPI is unduly restric-
tive. We do not agree. The CPI is an objective, readily-
available, quantitative index measuring the costs impact-
ing a consumer. See BLACK’S LAW DICTIONARY 359 (9th
ed. 2009) (equating the “consumer price index” with a
“cost-of-living index”). This factor—costs impacting a
consumer—is the very one EAJA seeks to account for in
its “cost of living” modifier. See, e.g., Sullivan v. Sullivan,
958 F.2d 574, 576–77 & n.6 (4th Cir. 1992). We therefore
agree with courts which have held that the Consumer
Price Index for all items appropriately tracks “the cost of
living” under EAJA. See, e.g., Sprinkle, 777 F.3d at 427–
28 (“Courts should generally award the inflation-adjusted
rate according to the CPI.”).
PARROTT v. SHULKIN 13
language. Mannino, 12 Vet. App. at 243; Cox, 17 Cl. Ct.
at 37. Indeed, the Supreme Court, under a different fee-
shifting statute, expressed “reasonable” attorney fees in
terms of “prevailing market rates in the relevant commu-
nity.” Blum, 465 U.S. at 895 & n.11 (emphasis added)
(interpreting the attorney fees provision for civil rights
actions under 42 U.S.C. § 1988).
The local CPI approach also better fulfills the purpos-
es underpinning EAJA. Congress passed EAJA to
(1) ensure adequate representation for those needing to
vindicate their rights against the government and
(2) minimize the cost of this redress to taxpayers. Baker
v. Bowen, 839 F.2d 1075, 1083 (5th Cir. 1988); see also
EAJA, Pub. L. No. 96–481, § 202, 94 Stat. 2325 (1980)
(describing EAJA’s purposes); Kelly v. Nicholson, 463 F.3d
1349, 1353 (Fed. Cir. 2006). The local CPI approach
advances both of these goals. It assists litigants with
meritorious claims in securing suitable counsel, whose
costs may exceed national rates. Undercompensating
such applicants would deter them from bringing lawful
claims against the government, thereby frustrating
EAJA’s stated intent. See, e.g., Payne v. Sullivan, 977
F.2d 900, 903 (4th Cir. 1992) (finding that insufficiently
compensating EAJA applicants “undermine[s] the pur-
pose of EAJA to remove the financial disincentive to
challenge wrongful government action” (quoting Animal
Lovers Volunteer Ass’n, Inc. v. Carlucci, 867 F.2d 1224,
1227 (9th Cir. 1989))); Meyer v. Sullivan, 958 F.2d 1029,
1034 (11th Cir. 1992); Hamblen, 14 F. Supp. 3d at 809.
Similarly, the local CPI approach reduces taxpayer expo-
sure by preventing windfalls to attorneys whose costs of
living lie below the national average. Hamblen, 14 F.
Supp. 3d at 809; Mannino, 12 Vet. App. at 243.
The national CPI approach provides none of the above
benefits. Under that approach, attorneys whose costs of
living dip below the national CPI receive a windfall,
encumbering the public with fees unneeded to represent
14 PARROTT v. SHULKIN
the applicant. At the same time, attorneys whose costs of
living surpass the national CPI are not reimbursed for
their true fees, discouraging the representation EAJA
seeks to secure.
Using local CPI figures is also consistent with our
holding in Levernier. In that case, we refused to grant a
cost of living increase to an attorney whose market rate
fell short of the statutory cap. Levernier, 947 F.2d at 503–
04. Because an attorney’s rate is partially a function of
his or her cost of living (among other things), Levernier
suggests that local price conditions can serve as the
ultimate barometer of an EAJA award. Other circuits
have reached similar conclusions, limiting for EAJA
purposes hourly rates to those in the relevant community
or the attorney’s personal rate. See, e.g., Sprinkle, 777
F.3d at 428 & n.2 (limiting rates to those “in line with
those prevailing in the community for similar services”);
Bryant v. Comm’r of Soc. Sec., 578 F.3d 443, 450 (6th Cir.
2009); Johnson v. Sullivan, 919 F.2d 503, 505 (8th Cir.
1990) (“[E]vidence that the petitioner’s counsel ordinarily
charges a fee of no greater than [the statutory rate] would
preclude a cost-of-living increase above that amount.”);
Clark v. Comm’r of Soc. Sec., No. 16-5393, 2016 WL
6958640, at *4 (6th Cir. 2016) (unpublished) (limiting cost
of living increases to the “prevailing rates in the commu-
nity”).
B.
Based upon the foregoing, we see no error in the Vet-
erans Court’s use of the local CPI approach. Ms. Parrott
acknowledges that her attorney worked in—and main-
tained—distinct offices in San Francisco, Dallas, and
Little Rock. The Veterans Court therefore properly
concluded that her EAJA application should have appor-
tioned Mr. Attig’s time to those locations and used the
CPI for each locality. Parrott, 2015 WL 5948165, at *4.
PARROTT v. SHULKIN 15
C.
As noted, Ms. Parrott also contends that an EAJA ap-
plicant in the Veterans Court may select whatever CPI
approach yields the most favorable hourly rate for his or
her attorney. We do not agree. To begin with, nothing in
the statute suggests that an applicant is permitted to
claim “the highest fee” or “the maximal cost of living
increase.” In fact, the statute instructs the opposite. It
limits fee awards to a prescribed cap and requires appli-
cants to justify requests for higher sums. See, e.g., John-
son v. Sullivan, 919 F.2d at 504–05; Baker, 839 F.2d at
1084. EAJA also mandates that attorney fees be tethered
to “prevailing market rates,” further grounding them in
an objective, identifiable standard, distinct from Ms.
Parrott’s “optimal yield” approach. 28 U.S.C.
§ 2412(d)(2)(A); see also Clark, 2016 WL 6958640, at *4
(explaining that EAJA cases do not “stand for the proposi-
tion that a district court must award the maximum
amount possible once the statutory cap is increased”).
Permitting EAJA applicants in the Veterans Court to use
whatever method maximized their return would unmoor
the calculated fees from “prevailing market rates” and
“the cost of living” experienced by the applicant or the
applicant’s attorney. This runs afoul of the statutory text
and EAJA’s prohibition against windfalls. See Hyatt, 315
F.3d at 254 (“EAJA should not produce windfalls to
attorneys.” (internal quotation marks omitted) (quoting
Hensley v. Eckerhart, 461 U.S. 424, 430 n.4 (1983))); see
also Sprinkle, 777 F.3d at 429 (limiting upward adjust-
ments to rates “in the community for comparable legal
services”); Levernier, 947 F.2d at 503–04 (preventing
upward adjustments when attorneys’ billable rates were
below the statutory cap).
In urging her optimal yield approach, Ms. Parrott re-
lies on the doctrine that interpretive doubt in the context
of a veterans benefits statute is to be construed in favor of
the veteran. See Brown v. Gardner, 513 U.S. 115, 118
16 PARROTT v. SHULKIN
(1994); Nielson v. Shinseki, 607 F.3d 802, 808 (Fed. Cir.
2010); Nat’l Org. of Veterans Advocates, Inc. v. Sec’y of
Veterans Affairs, 260 F.3d 1365, 1378 (Fed. Cir. 2001).
There are two problems with this argument, however.
First, as the discussion in III.A above makes clear, we do
not see ambiguity in the provisions of EAJA at issue in
this case. Second, and just as importantly, the canon of
statutory interpretation upon which Ms. Parrott relies
does not apply here. EAJA is not a veterans benefit
statute. It is a statute of general applicability. EAJA
applies to any “prevailing party . . . in any [nontort] civil
action” brought by or against the United States, regard-
less of the underlying cause of action. 28 U.S.C.
§ 2412(d)(1)(A); see also Gregory C. Sisk, The Essentials of
the Equal Access to Justice Act: Court Awards of Attorney
Fees for Unreasonable Government Conduct (Part One), 55
LA. L. REV. 217, 229–30 (1994) (discussing EAJA’s “un-
paralleled” breadth due to its general application). EAJA
allows claimants to recover fees in all sorts of nonveterans
cases. See, e.g., Shalala v. Schaefer, 509 U.S. 292 (1993)
(Social Security disability benefits); Pierce v. Underwood,
487 U.S. 552 (1988) (low-income housing litigation
against the Department of Housing and Urban Develop-
ment); Sakhawati v. Lynch, 839 F.3d 476 (6th Cir. 2016)
(appeal from a decision by the Board of Immigration
Appeals); Roberts v. Nat’l Transp. Safety Bd., 776 F.3d
918 (D.C. Cir. 2015) (employment actions undertaken by
the FAA and NTSB).
Finally, the cases which Ms. Parrott cites are not on
point. In each case on which she relies, the statute at
issue was unquestionably directed to veterans benefits
and was not a law of general application governing the
public at large. See Henderson ex rel. Henderson v.
Shinseki, 562 U.S. 428, 431 (2011) (involving notices of
appeal for veterans disability claims under 38 U.S.C.
§ 7266); King v. St. Vincent’s Hosp., 502 U.S. 215, 216
(1991) (Veterans’ Reemployment Rights Act, then codified
PARROTT v. SHULKIN 17
at 38 U.S.C. §§ 2021–26); Fishgold v. Sullivan Drydock &
Repair Corp., 328 U.S. 275, 278 (1946) (Selective Training
and Service Act of 1940); Frederick v. Shinseki, 684 F.3d
1263, 1265 (Fed. Cir. 2012) (Veterans Benefits Act of
2003). Ms. Parrott cites no case—and we have not found
one—standing for the proposition that a generally appli-
cable law should be construed in a litigant’s favor merely
because that litigant is a veteran. Accordingly, we reject
Ms. Parrott’s invitation to interpret EAJA as permitting a
veteran to use the CPI method yielding the highest return
in attorney fees.
IV.
A.
As seen, the Veterans Court determined that Ms. Par-
rott had failed to show the reasonableness of her request-
ed fee because her application omitted the CPIs and
hourly allotments for each locale where her attorney
worked on her case. Parrott, 2015 WL 5948165, at *4.
The court therefore awarded Ms. Parrott the statutory
rate of $125 per hour. Id.
Ms. Parrott challenges the court’s decision as an
abuse of discretion. 6 Appellant Opening Br. 21–22.
According to Ms. Parrott, the Veterans Court was “re-
quired to afford [her] attorney the opportunity to amend
her fee application” to comply with the court’s CPI ruling.
Id. at 23–24.
The Secretary argues that we lack jurisdiction to re-
view this aspect of the Veterans Court’s decision. Appel-
6 Ms. Parrott at times frames this issue as whether
the Veterans Court acted ultra vires, but her arguments
essentially focus on whether the court abused its discre-
tion, not on whether the court acted beyond its power.
Appellant Opening Br. 22.
18 PARROTT v. SHULKIN
lee Response Br. 28–29. Alternatively, he contends, the
Veterans Court did not abuse its discretion in awarding
Ms. Parrott the statutory rate because Ms. Parrott failed
to establish the reasonableness of her requested fee. Id.
at 30–35. In the Secretary’s view, nothing required the
Veterans Court to allow Ms. Parrott to amend her EAJA
submission. Id. at 36–37.
B.
As already stated, our jurisdiction over veterans cases
is limited. Again, except to the extent an appeal presents
a constitutional or legal issue, we may not review “(A) a
challenge to a factual determination or (B) a challenge to
a law or regulation as applied to the facts of a particular
case.” 38 U.S.C. § 7292(d)(2); see also Wagner v. Shinseki,
733 F.3d 1343, 1349 (Fed. Cir. 2013) (holding that we lack
jurisdiction to review the Veterans Court’s determination
on the reasonableness of an EAJA fee award when the
court applies the correct legal standard).
As noted, Ms. Parrott asks us to find that the Veter-
ans Court abused its discretion by not permitting her to
resubmit an amended EAJA application. But contrary to
the assumption implicit in this argument, we do not have
freestanding authority to review all discretionary actions
taken by the Veterans Court. Instead, our jurisdiction
attaches when the Veterans Court commits an abuse of
discretion rising to the level of legal error. 38 U.S.C.
§ 7292(d)(1); see also Dixon v. Shinseki, 741 F.3d 1367,
1373–74 (Fed. Cir. 2014) (ruling that the Veterans Court
abuses its discretion when it misapplies controlling legal
standards—a question of law); Cook v. Principi, 353 F.3d
937, 940 (Fed. Cir. 2003) (finding that we have no juris-
diction to review abuses of discretion on factual matters);
Forshey v. Principi, 284 F.3d 1335, 1351 (Fed. Cir. 2002)
(en banc) (setting forth our jurisdiction in terms of legal
questions); Maggitt v. West, 202 F.3d 1370, 1374 (Fed. Cir.
2000) (stating that the Veterans Court abuses its discre-
PARROTT v. SHULKIN 19
tion when it misconstrues its own jurisdiction, a legal
issue).
Here, the Veterans Court did not interpret any law or
regulation in declining to give Ms. Parrott the opportunity
to resubmit a corrected EAJA application. It simply
found that she had failed to demonstrate the reasonable-
ness of the fee and used its broad discretion to calculate
one for her. Pierce, 487 U.S. at 571 (stating that courts
have the discretion to calculate the amount of EAJA fees).
This is a factual matter that we are not empowered to
review. 38 U.S.C. § 7292(d)(2); Cook, 353 F.3d at 940;
Wagner, 733 F.3d at 1349.
Nor has Ms. Parrott shown how the decision of the
Veterans Court amounted to legal error. It is undisputed
that Ms. Parrott’s application was facially deficient under
the correct standard. The Veterans Court therefore never
had the information it needed to compute her fee under
the appropriate approach. We know of no controlling
authority, statute, regulation, or rule that requires a
court to sua sponte request and accept amended EAJA
applications, after judgment, on facts similar to those in
this case. Accordingly, we see no legal error in the Veter-
an Court’s ruling.
CONCLUSION
For the reasons stated above, we hold that the Veter-
ans Court did not err in ruling that the local CPI ap-
proach represented the correct method of calculating the
adjustment in Ms. Parrott’s attorney’s hourly rate. We
also hold that we lack jurisdiction to review the court’s
decision not to allow Ms. Parrott to amend her EAJA
application. The decision of the Veterans Court is there-
fore affirmed.
AFFIRMED
20 PARROTT v. SHULKIN
COSTS
Each party shall bear its own costs.