from the United States Court of Appeals for Veterans Claims
in No. 14-3209, Chief Judge Lawrence B. Hagel.
Kenneth M. Carpenter, Law Offices of Carpenter Chartered,
Topeka, KS, argued for claimant-appellant.
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.
Hughes, Schall, and Stoll, Circuit Judges.
Schall, Circuit Judge.
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 approach
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
reasons set forth below, we hold that the Veterans 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
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. Subsequently,
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). Following
the court's decision, Ms. Parrott timely filed for
attorney fees and expenses under EAJA.
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 expenses . . ., incurred by that party
in any civil action . . ., including 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. § 2412(d)(1)(A).
proceedings below, the Secretary agreed that Ms. Parrott was
a prevailing party and that his position in the underlying
litigation was not substantially justified. 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 Veterans 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 (representing the filing fee in the Veterans
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, it usually calculates the adjustment
using either the national Consumer Price Index
("CPI") for Urban Consumers 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 adjustments 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 adjustments should
account for "the actual CPI increase where the attorney
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. To arrive at this rate, Ms. 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
Washington, D.C. CPI "fulfill[ed] the intent of
Mannino (applying 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 Francisco, and Washington, D.C., or a billing rate
based solely upon the CPI for Dallas. J.A. 62.
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 principal office. This
approach resulted in an hourly billing rate of $183.74. J.A.
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
fairer course is to use the cost of living actually
experienced by Mrs. Parrott's attorney where the legal
services were performed." Parrott, 2015 WL
5948165, at *3 (internal 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
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 ...