Parrott v. Shulkin

• Citation: 851 F.3d 1242
• Decision Date: 13 March 2017
• Docket Number: 2016-1450
• Parties: Paula PARROTT, Claimant-Appellant v. David J. SHULKIN, Secretary of Veterans Affairs, Respondent-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

851 F.3d 1242

Paula PARROTT, Claimant-Appellant

v.David J. SHULKIN, Secretary of Veterans Affairs, Respondent-Appellee

2016-1450

United States Court of Appeals, Federal Circuit.

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.

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). 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, 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. 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 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. 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 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, 104 S.Ct. 1541, 79 L.Ed.2d 891 (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 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...