UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 19-1350(E)

CHARLES L. SWANAGAN, APPELLANT,

AND

NO. 19-3258(E)

JESSE B. TURMAN, APPELLANT,

V.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appellants' Application for Attorney Fees and Expenses

(Argued September 11, 2020 Decided June 23, 2021)

Harold H. Hoffman, III, with whom Evan Snipes, both of Arlington, VA, were on the 

pleadings for appellant Charles L. Swanagan.

Harold H. Hoffman, III, with whom Britney Sutton, both of Arlington, VA, were on the 

pleadings for appellant Jesse B. Turman.

Brandon T. Callahan, with whom William A. Hudson, Jr., Acting General Counsel; Mary 

Ann Flynn, Chief Counsel; James B. Cowden, Deputy Chief Counsel; and Kristen D. KingHolland, all of Washington, D.C., were on the pleadings for the appellee in the case of Charles L. 

Swanagan.

Brandon T. Callahan, with whom William A. Hudson, Jr., Acting General Counsel; Mary 

Ann Flynn, Chief Counsel; and Christopher W. Wallace, Deputy Chief Counsel, all of Washington, 

D.C., were on the pleadings for the appellee in the case of Jesse B. Turman.

Before BARTLEY, Chief Judge, and ALLEN and FALVEY, Judges.

BARTLEY, Chief Judge: Before the Court are applications from veterans Charles L. 

Swanagan and Jesse B. Turman for awards of attorney fees and expenses under the Equal Access 

to Justice Act (EAJA), 28 U.S.C. § 2412(d). This Court has jurisdiction under 28 U.S.C. 

§ 2412(d)(2)(F) to award reasonable attorney fees and expenses. Appellants request, among other 
2

things, a cost-of-living (COL) increase in excess of EAJA's $125 statutory maximum hourly rate 

for work performed by an attorney, Mr. Harold H. Hoffman, while in Quito, Ecuador.1 

The appellants' request presents a novel issue for this Court: may the Court award a COL 

increase to the $125 statutory maximum hourly rate for work performed outside the United States 

and in a location for which the U.S. Bureau of Labor Statistics does not publish a Consumer Price 

Index for all Urban Consumers (CPI-U)? The Court holds here that it may do so. However, 

because appellants have not adequately supported their proposed method for calculating a COL

increase for work that Mr. Hoffman performed in Quito, the Court declines to adopt it and will 

reduce the requested rate for that work to the $125 statutory maximum. Consequently, the Court 

will grant Mr. Swanagan's EAJA application in the reduced amount of $4,021.29, and Mr. 

Turman's in the reduced amount of $6,771.61.

I. BACKGROUND

On January 14, 2020, the Court granted a joint motion for partial remand (JMPR) of that 

portion of an October 29, 2018, Board of Veterans' Appeals (Board) decision that denied Mr. 

Swanagan's claim for service connection for left and right hip conditions and urinary incontinence 

and declined to reopen his previously denied claims of service connection for left and right ankle 

arthrosis. On February 12, 2020, Mr. Swanagan filed a timely application for attorney fees and 

expenses under EAJA in the amount of $4,117.82, including, in pertinent part, $265.28 for 1.35 

hours of work that Mr. Hoffman performed while in Quito, at a requested hourly rate of $196.50. 

See Swanagan Application for Attorneys' Fees and Expenses (Swanagan EAJA Application). 

Similarly, on February 3, 2020, the Court granted a JMPR of that portion of an August 23, 

2018, Board decision that denied Mr. Turman a compensable evaluation for his service-connected 

hypertension. On February 10, 2020, Mr. Turman filed a timely application for attorney fees and 

expenses under EAJA in the amount of $7,154.14, including, in pertinent part, $1,051.28 for 5.35 

 

1 At oral argument, the Secretary, in response to questioning, indicated that he might have characterized Mr. 

Hoffman's work in Quito as completed in a temporary location and therefore eligible for a COL increase at the 

Washington, D.C., rate. See Oral Argument (OA) at 54:36-54:54 Swanagan v. McDonough, U.S. Vet. App. No. 19-

1350(E) and Turman v. McDonough, U.S. Vet. App. No. 19-3258(E) (oral argument held September 11, 2020). But 

because the Secretary did not object in pleadings or at oral argument to Mr. Hoffman's request that the work performed 

in Quito be compensated at the appropriate rate for that location, the Court will accept Mr. Hoffman's assertion that 

he was not in Quito on a temporary basis.
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hours of work that Mr. Hoffman performed while in Quito at a requested hourly rate of $196.50. 

See Turman Application for Attorneys' Fees and Expenses (Turman EAJA Application).

In both cases, the Secretary concedes that EAJA fees are warranted and that the items for 

which appellants seek awards of fees and expenses, including the number of hours expended by 

the attorneys involved, are appropriate. Additionally, the Secretary does not oppose appellants' 

voluntary election to use dates prior to the midpoint in calculating hourly rates. The only issue in 

contention is the hourly rate requested for work performed in Quito. The Secretary asks that the 

Court reduce the hourly rate for the work Mr. Hoffman performed in Quito to $125, the statutory 

maximum. In Mr. Swanagan's case, that results in a reduction of $96.53, for a total proposed 

EAJA award of $4,021.29. See Secretary's Response to Mr. Swanagan. In Mr. Turman's case, 

that results in a reduction of $382.53, for a total proposed EAJA award of $6,771.61. See

Secretary's Response to Mr. Turman. 

In June 2020, the Court granted appellants' request that their EAJA applications be 

consolidated for the purpose of addressing their common argument regarding the availability of a 

COL increase over the $125 statutory maximum hourly rate for work Mr. Hoffman performed in 

Quito. The matters were then referred to a panel of the Court to address this issue of first 

impression.

II. ARGUMENTS

Appellants acknowledge that, under this Court's holding in Speigner v. Wilkie, 31 Vet.App. 

41, 50 (2019), COL increases to the $125 statutory maximum hourly rate are based on the location

where the work was performed. See Swanagan EAJA Application at 4.2 And with respect to work 

performed in the United States, they applied the CPI-U to calculate the various hourly rates 

requested for work performed in Alexandria, Virginia; Columbia, Maryland; Niceville, Florida; 

and Washington, D.C. Id. at 3-4 They request a COL increase for work performed in Quito, as 

well, seeking an hourly attorney fee rate of $196.50. Id. at 6.

Appellants argue that allowing COL increases for work performed outside the United 

States increases service to military families and veterans. See Swanagan Reply at 5-7. First, they 

 

2 The substantive arguments made in appellants' pleadings are identical. Similarly, the arguments made in 

the Secretary's response pleadings are identical. Going forward, unless there is a material difference between the 

pleadings as to each appellant, the Court will cite to Mr. Swanagan's pleadings and to the Secretary's response in that 

matter.
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assert that providing COL adjustments to the default hourly rate is necessary to support counsel 

willing to relocate outside the United States to better serve veterans living abroad. See id. at 5. 

For example, Mr. Hoffman "is staffing a new . . . office in Quito, Ecuador, to serve U.S. veterans 

living in South America." Swanagan EAJA Application at 4. Second, they argue that denying 

COL increases for work performed outside the United States by attorneys who relocate overseas 

with their servicemember spouses disadvantages those members of the veterans bar and the clients 

that they serve. See Swanagan Reply at 5-7. 

As for how a COL increase would be calculated for work performed in Quito, appellants 

argue that the United States is not the only country capable of computing a reliable CPI. Id. at 2. 

And with respect to Ecuador, in particular, they assert that it uses the same methodology as the 

United States in calculating its CPI and that, because its currency is the U.S. dollar, there is no 

need to engage in complicated exchange rate calculations. Id. at 2-3. But they explain that, due 

to a period of extraordinary inflation in Ecuador since March 1996, calculating a COL increase 

using the method prescribed in Elcyzyn v. Brown, 7 Vet.App. 170, 181 (1994), which is used to 

calculate COL increases for work performed in the United States, and applying Quito's CPI, results 

in an hourly rate of $1,678.77; they acknowledge that this rate is unreasonable. Swanagan EAJA 

Application at 4-5.

As for whether alternative indices to the CPI-U may be used to calculate COL increases 

for attorney work performed outside the United States, appellants note that the relevant portion of 

the EAJA statute, 28 U.S.C. § 2412(d)(2)(A), does not mandate that courts use any particular data 

source in calculating a COL increase to the $125 statutory maximum hourly attorney rate. 

Swanagan Reply at 4. They propose using, instead, a combination of the Department of Defense 

(DoD) and United Nations (UN) indices to obtain "a more accurate EAJA [COL] adjustment." 

Swanagan EAJA Application at 4. 

With respect to the COL allowance calculations used by DoD, appellants explain that each 

duty station is assigned an index. Quito is assigned an index of 130, which is 4.8% more than the 

124 index DoD assigns for Anchorage, Alaska. Appellants contend that increasing the Urban 

Alaska CPI-U by 4.8% for the time period at issue here results in a proposed hourly rate of $213.00

for Quito. Id. at 5. UN COL allowance calculations generally follow the same pattern. The UN 

index for Washington, D.C., for the relevant time period is 88.6, and the index for Quito is 77.7, 
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which is 14% less. Decreasing the Washington, D.C., CPI-U by 14% for the time period at issue 

results in an hourly rate of $180.00. Id. 

The appellants propose that the Court ignore the unreasonable hourly rate created by 

applying the Elcyzyn method and the CPI produced by Ecuador and, instead, average the hourly 

rates calculated using the DoD and UN indices and award attorney fees at an hourly rate of $196.50 

for work performed in Quito. Id. at 6. As further support for their proposed method of calculating 

the COL increase for Quito, appellants note that their proposed rate is similar to the rate for El 

Paso, Texas, and assert that, based on counsel's personal experience, "the prices of goods are 

similar" in both locations. Swanagan Reply at 5. 

In the alternative, appellants assert, for the first time in their replies to the Secretary's 

responses to the initial EAJA applications, that the Court should abandon altogether its current 

method for calculating hourly rates for all EAJA cases, as well as its method for calculating the 

midpoint of litigation. Id. at 7-15. Appellants assert that determining the location of the attorney 

is irrelevant to protecting litigants' purchasing power because appellants to the Court are not 

limited to their local market and can choose any qualified attorney. Id. at 8. They further assert 

that the Elcyzyn method "frequently results in laughable rate comparisons between localities" 

because it does not accurately reflect COL variations between different locations. Id. at 11. 

Similarly, they assert that, because the COL generally rises, using a midpoint for calculating the 

COL increase "creates a windfall for those months preceding and a misfortune for those months 

following the midpoint." Id. at 12. They further assert that the current method for determining 

hourly rates and midpoints is inefficient. Id. at 12-13. Instead, appellants propose adopting the 

U.S. Court of Appeals for the Ninth Circuit's approach of using the annual national CPI-U and the 

year the work was performed to calculate COL increases. Id. at 13-14. 

The Secretary agrees that the EAJA statute, 28 U.S.C. § 2412, sets the maximum hourly 

attorney rate at $125 per hour, unless the Court determines that some factor—such as a COL 

increase—justifies a higher fee. Secretary's Response at 4. But, the Secretary argues, Elcyzyn

requires the use of the CPI-U in calculating COL increases and, because the U.S. Bureau of Labor 

Statistics does not maintain such data for foreign countries, "an increase in the [COL] for the area 

in which [an] attorney lives and works is unavailable when the attorney in question lives and works 

in a foreign country." Id. at 8 (citing https://www.bls.gov/cpi/ (noting that indexes are only 

available for the United States, nationally, and for various geographic areas within the United 
6

States)). The Secretary asserts that the very fact that applying the Elcyzyn methodology to Quito 

leads to absurd results "calls into question whether 28 U.S.C. § 2412 contemplates litigants 

selecting attorneys located in foreign countries and demonstrates the unworkable nature of the 

application of the statute to such a scenario." Id. at 14.

The Secretary explainsthat the purpose of the EAJA Act was to allow an appellant to obtain 

a sufficiently skilled attorney. Id. at 10. To that end, COL adjustments to the $125 statutory hourly 

rate are permitted "so as not to diminish the purchasing power of the citizen seeking representation 

against the Federal Government," but also to avoid a locality-based windfall to counsel. Id. at 11. 

But because there is no CPI-U for locations outside the United States, calculating an hourly rate 

for foreign locations that is consistent with the purpose of the EAJA Act and complies with prior 

precedent would require the Court to independently assess whether the statutory rate is sufficient 

for appellants to find and obtain competent counsel in the foreign location and whether the 

proposed rate would result in a windfall. Id. at 11-12. 

The Secretary further argues that, even if data equivalent to the U.S. CPI-U existed for a 

foreign country, determining an hourly rate based on that data would require a burdensome set of 

complex calculations based on the need to apply historical exchange rates to comply with the intent 

of the EAJA Act: incentivizing representation while avoiding a windfall. Id. at 12-13. For 

example, the Secretary asserts, the Court would have to convert the statutory rate into the foreign 

currency as of March 1996. Id. at 12. Then any increase in the COL would be calculated, assuming 

such data were available. Id. at 12-13. That result would then have to be converted back into U.S. 

dollars as of the midpoint of the case. Id. at 13. The Secretary asserts that this task is too complex 

and burdensome for the Court to consider. See id. at 12-13. 

As for appellants' argument that using an average of the hourly rates resulting from the 

DoD and UN indices avoids the absurdity resulting from the Elcyzyn methodology as applied, in 

this specific case, to a proposed COL increase for work performed in Quito, the Secretary notes 

that neither the proposal to use DoD and UN indices, nor the proposal to average the resulting 

rates, has any basis in law. Id. at 15, 18. Ultimately the Secretary asks the Court to "reject 

[appellants'] proposal to create from whole cloth an entirely new means of calculating hourly rates, 

outside of the Court's jurisprudence and unsupported by any other Federal Court." Id. at 19. 
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III. ANALYSIS

As previously, noted, this Court has jurisdiction under EAJA to award "reasonable attorney 

fees" pursuant to section 2412(d)(2)(F). To establish eligibility for an EAJA award, an appellant

must file an application within 30 days after final judgment that contains (1) a showing that the 

appellant is a prevailing party; (2) an assertion that the appellant's net worth does not exceed 

$2,000,000; (3) an allegation that the Secretary's position was not substantially justified; and (4) 

an itemized statement of the fees and expenses sought. See 28 U.S.C. § 2412(d)(1)(A), (1)(B), 

(2)(B); Scarborough v. Principi, 541 U.S. 401, 407-08 (2004); Owens v. Brown, 10 Vet.App. 65, 

66 (1997). The Secretary does not contest appellants' eligibility for EAJA awards, and the Court 

accepts their eligibility. 

"The Court has wide discretion in the award of attorney fees under the EAJA," Chesser v. 

West, 11 Vet.App. 497, 501 (1998) (citing Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)), and 

"must determine what is a 'reasonable' fee," Ussery v. Brown, 10 Vet.App. 51, 53 (1997). "The 

most useful starting point for determining the amount of a reasonable fee is the number of hours 

reasonably expended . . . multiplied by a reasonable hourly rate." Hensley, 461 U.S. at 433. The 

appellant bears the burden of demonstrating the reasonableness of fees and other expenses. See 

Blum v. Stenson, 465 U.S. 886, 897 (1984). In these matters, the Secretary does not contest the 

reasonableness of the number of hours expended or expenses claimed, and the Court accepts 

appellants' claims as to those elements.

As for determining the hourly rate, "'[t]he EAJA authorizes the award of the lower of either 

the prevailing market rate or [the statutory maximum] plus a [COL increase] or other 

enhancement.'" Elcyzyn, 7 Vet.App. at 179 (quoting Levernier Const., Inc. v. United States, 

947 F.2d 497, 504 (Fed. Cir. 1991)). In Elcyzyn, the Court explained that it determines whether a

COL increase is warranted by applying an appropriate index to determine whether the COL on 

"the date on which the legal services were performed" was greater than on the effective date of the 

governing statutory rate. 7 Vet.App. at 181 (citing Phillips v. General Services Admin., 924 F.2d 

1577, 1583 (Fed. Cir. 1991)). The effective date of the current governing statutory maximum 

hourly attorney rate of $125 is March 29, 1996. See Contract with America Advancement Act of 

1996, Pub. L. No. 104–121, § 232, 110 Stat. 841, 863 (1996) (codified at 28 U.S.C. 

§ 2412(d)(2)(A)); see also McDonald v. Nicholson, 21 Vet.App. 257, 260 (2007). As for the date 

on which legal services were performed, this Court encourages "the selection of a single mid-point 
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date," such as the date on which the appellant's principal brief is filed. Elcyzyn, 7 Vet.App. at 181. 

But here, the parties have agreed on dates earlier than the midpoint of their respective appeals as 

the dates on which legal services were performed, and the Court accepts their agreement. See

Swanagan Response at 6; Turman Response at 6.

Once the midpoint of the litigation or other date of legal service has been determined, this 

Court has historically calculated the amount of any COL increase by dividing the relevant CPI-U 

as of that date by the relevant CPI-U as of March 1996, then multiplying the result by the current 

statutory EAJA rate of $125 per hour. See, e.g., Harvey v. Shinseki, 24 Vet.App. 284, 291 n.3 

(2011) (per curiam order). In Elcyzyn, the Court held that "the appropriate [COL] index in 

determining whether a higher attorney fee under the EAJA is justified is the national CPI-[U] index 

or the CPI-[U] index for the region or local area where the services were performed." 7 Vet.App. 

at 181; see also Mannino v. West, 12 Vet.App. 242, 244 (1999) (holding that a local CPI-U will be 

applied when available). More recently, the Court considered CPI-U selection for attorneys 

working in nontraditional settings, such as those who telework from a residence, and reaffirmed 

that the CPI-U must correspond to the location where the work was performed. Speigner, 

31 Vet.App. at 46; see also Parrott v. Shulkin, 851 F.3d 1242, 1250 (Fed. Cir. 2017) (agreeing that 

an attorney's time should have been apportioned among the distinct locations where work was 

performed, and the CPI applied for each separate locality). And to the extent that appellants 

applied the above method to work performed within the United States, the Secretary raises no 

objection. See Swanagan Response at 2; Turman Response at 2. Therefore, the Court accepts the 

agreed-upon hourly rates for all attorney work performed on appellants' behalf within the United 

States.

As for the hourly rate for work performed in Quito, the Secretary interprets Elcyzyn's

requirement to use the CPI-U prepared by the Bureau of Labor Statistics—which is only 

maintained for locations within the United States—as an absolute bar to awarding COL increases 

for work performed outside the United States. See Swanagan Response at 8-9. In other words, 

the Secretary's position is that the hourly rate for any and all attorney work performed outside the 

United States cannot exceed the $125 statutory maximum set in March 1996. Appellants interpret 

Elcyzyn as requiring the use of the CPI-U for locations within the United States, i.e., those for 

which a CPI-U is available, but not foreclosing the use of other methods for determining 
9

appropriate COL increases for work performed outside the United States. See Swanagan Reply at 

4. The Court agrees with appellants.

As appellants note, the EAJA statute grants courts the jurisdiction to increase the statutory 

$125 attorney fee rate based on an increase in the COL, but it is silent as to how courts should 

determine such increase. See 28 U.S.C. § 2412(d)(2)(A)). The Secretary suggests that, because 

determining an appropriate COL increase for work performed outside the United States may be 

complex, Congress could not have intended that the Court consider appellants' request, and the 

statute's silence on that matter should be interpreted as imposing a geographic limitation on its 

applicability. See Secretary's Response at 12-13. But "courts must presume that a legislature says 

in a statute what it means," and Congress has not "indicated that the unadorned words" of the 

statute "are in some way limited by implication." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 

253-54, 254 (1992). Consequently, because nothing in the EAJA statute limits its applicability to 

work performed in the United States, the Court presumes that requests for COL increases for 

attorney work are not geographically limited. 

As for proceedings in this Court, the Secretary is correct that, in Elcyzyn, the Court stated 

that the CPI-U "will" be used to determine COL increases. Swanagan Response at 8 (citing 

7 Vet.App. at 179). But in 1994, when Elcyzyn issued, technology permitting attorneys to securely

and routinely represent clients from locations outside the United States was not readily available 

to the veterans bar, see OA at 5:12-5:15 (appellants' assertion that counsel can work anywhere 

there is Wi-Fi); consequently, the Court was not asked, when it issued Elcyzyn, to consider methods

for calculating an appropriate COL increase for work performed outside the United States, see id. 

at 26:29-26:34 (the Secretary's concession that "this Court did not begin to use the Internet as its 

primary means of doing business" until more than a decade after Elcyzyn issued). 

Notwithstanding the EAJA statute's silence on the matter, the Secretary would nonetheless

have us interpret Elcyzyn as affirmatively, although implicitly, imposing additional restrictions on 

EAJA fee requests and excluding the possibility of awarding COL increases for attorney work 

performed outside the United States, rather than simply not contemplating that possibility. But as

the Court acknowledged in Speigner, "[a]dvanced technology in the workplace" has altered the 

work environment, permitting attorneys to work, i.e., competently represent clients, outside the 

traditional office setting. 31 Vet.App. at 43. And the Secretary, while noting Mr. Hoffman's intent 

"to open, staff, and operate a legal office in Quito, Ecuador[,] on a full-time basis," Swanagan 
10

Response at 6 n.3, raises no concern—nor can the Court discern any—that an attorney working in 

Quito would be unable to competently represent clients. Therefore, because the EAJA statute 

neither specifies which indices courts may use to determine COL increases nor limits those

increases to work performed within the United States, and because this Court's responsibilities do 

not extend to anticipating the state of workplace technology a quarter century into the future, the 

Court cannot read Elcyzyn's silence as to work performed outside the United States as an intent to 

limit the hourly rate for such work to the statutory maximum. 

The Secretary further argues that this Court should decline to consider COL adjustments 

for work performed outside the United States because any method for calculating an increase "is 

unworkable in light of the complicated and highly dynamic nature of international economics." 

Swanagan Response at 12. But the question as to how a foreign COL increase would be calculated 

is separate from the question as to whether consideration of a foreign COL increase is permitted 

as a matter of law.

Ultimately, nothing in the EAJA statute or this Court's jurisprudence bars consideration of 

a COL increase to the statutory maximum for attorney work performed outside the United States. 

However, as with any attorney fee request, appellants bear the burden of demonstrating the 

reasonableness of their proposed method for calculating the appropriate hourly rate for work Mr. 

Hoffman performed in Quito, see Blum, 465 U.S. at 897, and it is to that question that the Court 

now turns its attention.

Appellants assert that Ecuador produces a sound and reliable CPI consistent with U.S. 

methods. Swanagan Response at 2. However, they report that "Ecuador's [COL] has exponentially 

increased due to its dollarization and rapid industrialization," and, as a result, has increased by 

approximately 1,423% since March 1996. Id. at 3. Appellants acknowledge that using Ecuador's 

CPI with the Elcyzyn method for calculating an increase above the statutory maximum rate results 

in an unreasonable hourly rate of over $1,900. Id. Therefore, appellants argue, something other 

than the Elcyzyn method must be used if they are to justify a COL increase for work performed in 

Quito. Id. at 3-4. Because appellants do not request that this Court consider Ecuador's CPI to 

determine the appropriate hourly rate for work performed in Quito, the Court will not consider that 

possibility further. See Blum, 465 U.S. at 897.

What appellants propose instead is that this Court accept an entirely novel method for 

calculating COL increases that consists of (1) identifying the COL allowances for DoD and UN 
11

employees who live in Quito;3(2) selecting a U.S. city for which DoD or the UN provides a COL

allowance; (3) determining whether the respective Quito COL allowances are more or less than 

for the selected U.S. city and calculating the percent difference for both DoD and the UN; (4) 

calculating the hourly rates, including a COL increase under Elcyzyn, if the work were performed 

in the selected U.S. city; (5) adjusting the two results upward or downward by the percent 

difference between the COL allowances between Quito and the selected U.S. city; and (6) 

averaging those results to arrive at the requested hourly rate for EAJA purposes. Swanagan EAJA 

application at 5-6. The Secretary argues that the proposed method lacks any foundation in law and 

is conceptually flawed. Swanagan Response at 15-19. Here, the Court agrees with the Secretary.

The purpose of EAJA awards is "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." Parrott, 851 F.3d at 1249. And providing COL increases to the statutory maximum 

hourly rate "assists litigants with meritorious claims in securing suitable counsel, whose costs may 

exceed national rates." Id. "The EAJA . . . requires that the proper rate be calculated with some 

degree of reasoned precision." Elcyzyn, 7 Vet.App. at 179. But at the same time, "[a] request for 

attorney fees should not result in a second major litigation." Speigner, 31 Vet.App. at 49 (citing

Pierce v. Underwood, 487 U.S. 552, 563 (1988)). Thus, for example, this Court uses a single date 

during the performance period, usually the midpoint, when determining whether a COL increase 

is appropriate, rather than requiring separate calculations for each individual date on which service 

is performed. Elcyzyn, 7 Vet.App. at 181; see also Fox v. Vice, 563 U.S. 826, 838 (2011) ("The 

essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing 

perfection."). 

Here, appellants ask the Court—out of necessity—to deviate from the well-established 

Elcyzyn method and adopt an entirely novel approach to calculating a COL increase to the statutory 

hourly rate for attorney fees. But they do so without laying the necessary groundwork to 

demonstrate that their proposed method is consistent with the EAJA's purpose or controlling 

precedent. They propose a method for calculating hourly fees for work performed in Quito but 

provide no explanation or citation to authority as to why their proposed methodology results in a 

reasonable COL increase for EAJA purposes. 

 

3 Appellants report that the U.S. State Department provides COL allowances similar to those provided by the 

DoD, but did not use State Department allowances when calculating their requested fee for Quito.
12

For example, appellants do not identify what potential indices are available or explain why 

they selected DoD and UN indices over others. And although the results obtained from the selected 

indices differ by a remarkable $33 per hour, they cite no evidence supporting their implicit 

argument that DoD and UN indices, which are used to generate COL allowances for employees,

track the CPI-U in a meaningful way such that their use is appropriate to calculate a reasonable 

COL increase for EAJA purposes. Furthermore, they cite no evidence that the U.S. cities chosen 

for comparison—Anchorage, Alaska, and Washington, D.C.—are adequately representative and 

do not reflect a windfall over other options, such as Honolulu, Hawaii, or New York, New York. 

Finally, they provide no compelling explanation as to why an average of the results from the two 

different indices is better than either one alone. See Swanagan Application at 5-6. 

Appellants respond to the Secretary's criticisms of their proposed rate calculation 

methodology by asserting that data from the sources considered—DoD, UN, and the Department 

of State—is reliable. Swanagan Reply at 4. That may be true, and the Court certainly hopes that 

it is. But the accuracy of the data for the purpose of providing what each respective entity believes 

is appropriate compensation for their employees assigned to work oversees is separate from the 

question as to whether the data can be used to calculate a reasonably hourly attorney fee for EAJA 

purposes, and appellants make no attempt to answer that question. Similarly, while each index 

provides for comparison to a U.S. city, the question as to whether those cities are adequately 

representative of the relationship between the selected indices and the CPI-U remains unanswered. 

See id. And to the extent that they address their proposal to average the DoD and UN results to 

arrive at their requested hourly fee, they provide only an unsupported assumption that an average 

of the two indices is likely more accurate than choosing only one of them. Swanagan Reply at 5; 

OA at 15:45-15:54.

As noted above, appellants are not precluded by statute or precedent from receiving a COL 

increase for work performed outside the United States, and the Court is not opposed to considering 

such requests. Here, appellants propose a method for calculating a COL increase for Quito without 

providing reasoned answers to the logical questions noted above. The burden is appellants' to 

demonstrate that their proposed method of calculating such an increase is reasonable, see Blum, 

465 U.S. at 897, and because they provide inadequate evidence or explanation as to why their 

proposal is reasonable, they have not met that burden. And because appellants have not met their 
13

burden to show the reasonableness of their proposed Quito calculations, the Court declines to 

accept them.

Finally, in their reply, appellants propose, for the first time, that the Court abandon entirely 

the Elcyzyn method of calculating COL increases to the statutory attorney fee and instead adopt 

the method used in the Ninth Circuit. See Swanagan Reply at 7-15. Even if the Court had the 

authority to do so at this time, see Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992) ("Only the en 

banc Court may overturn a panel decision."), the Court would decline to consider this argument 

raised for the first time in reply, see Carbino v. West, 168 F.3d 32, 34 (Fed. Cir. 1999) (stating that 

"improper or late presentation of an issue or argument [i.e., raised in the reply brief for the first 

time] . . . ordinarily should not be considered"), aff'g Carbino v. Gober, 10 Vet.App. 507, 511 

(1997) (declining to review an argument first raised in the appellant's reply brief).

Appellants have not met their burden to show the reasonableness of the proposed hourly 

rate for work Mr. Hoffman performed in Quito, namely, 1.35 hours of work for Mr. Swanagan and 

5.35 hours of work for Mr. Turman. Therefore, the Court will use its discretion to award attorney 

fees at the statutory rate of $125 for that work. See Pierce, 487 U.S. at 571. As the Secretary 

raises no other objection to the EAJA requests addressed herein, the Court will adjust the requests 

accordingly and grant Mr. Swanagan's EAJA application in the reduced total amount of $4,021.29 

and Mr. Turman's in the reduced total amount of $6,771.61.

IV. CONCLUSION

Upon consideration of the foregoing, Mr. Swanagan's EAJA application is GRANTED, IN 

PART, in the reduced total amount of $4,021.29 for attorney fees and expenses, and Mr. Turman's 

EAJA application is GRANTED, IN PART, in the reduced total amount of $6,771.61 for attorney 

fees and expenses.