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 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 had adopted. 

For the 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 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. 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). 
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 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).

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 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 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 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 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 involves 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 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. 

Responding to Ms. Parrott’s application, the Secretary 

acknowledged that an adjustment of the $125 statutorilycapped 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. 42.

III.

The Veterans Court declined to follow either Ms. Parrott’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 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 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 before 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 correct 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 standard 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 determination, 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 interpretation of statutes); Bowey v. West, 218 F.3d 1373, 1376 

(Fed. Cir. 2000) (holding that the Veteran Court’s interpretation 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 misconstrued 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. According 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 permitted 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 Veterans Court.” Id. at 17. Here, Ms. Parrott contends that 

she is entitled to use the CPI for the location of the Veterans 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 office in San Francisco and worked on her case there. 
PARROTT v. SHULKIN 9

The Secretary responds that the Veterans Court complied 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 approaches, 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 strictly 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 Opening Br. 19–20; Appellant Reply Br. 4. Ms. Parrott’s argument 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 living . . . 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 attorney’s hourly rate to $125 and that any upward adjustment 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). Similarly, 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 Vaccine Act cases, as the Vaccine Act implements a feeshifting 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 compensation 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 statutory 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 undergirding 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 attorney fees in terms of “prevailing market rates for the kind 

and quality of the services furnished” and states in relevant 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 restrictive. We do not agree. The CPI is an objective, readilyavailable, quantitative index measuring the costs impacting 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 feeshifting statute, expressed “reasonable” attorney fees in 

terms of “prevailing market rates in the relevant community.” 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 purposes 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 purpose 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 exposure 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 community”).

B.

Based upon the foregoing, we see no error in the Veterans Court’s use of the local CPI approach. Ms. Parrott 

acknowledges that her attorney worked in—and maintained—distinct offices in San Francisco, Dallas, and 

Little Rock. The Veterans Court therefore properly 

concluded that her EAJA application should have apportioned 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 applicant 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 applicants to justify requests for higher sums. See, e.g., Johnson 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 proposition 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 adjustments 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 relies 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, regardless 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 “unparalleled” 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 Development); 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 applicable 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. Parrott had failed to show the reasonableness of her requested 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 “required 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 review 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 discretion, 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 Veterans 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 jurisdiction 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 reasonableness 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 Veteran Court’s ruling. 

CONCLUSION

For the reasons stated above, we 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. 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 therefore affirmed.

AFFIRMED
20 PARROTT v. SHULKIN

COSTS

Each party shall bear its own costs.