[00:00:00] Speaker 02:
The issue in this case concerns whether the plain language of the Aegis statute mandates a specific method for the computing cost of living increase for the hourly rate that can be charged under that statute.

[00:00:29] Speaker 02:
The Veterans Court made two errors in its interpretation of the EJA statute.

[00:00:35] Speaker 02:
First, it incorrectly considered the cost of living computation as a factor in determining the reasonableness of the fee sought under EJA.

[00:00:44] Speaker 02:
The computation of the cost of living to determine the fee which is charged is merely an independent calculus to determine what the ultimate hourly rate will be, which will be charged under the statute.

[00:00:59] Speaker 02:
Second, the Veterans Court erred by denying the apparent any cost of living increase.

[00:01:04] Speaker 02:
Such a denial was arbitrary and capricious and not in accordance with law.

[00:01:09] Speaker 02:
The question of statutory interpret.

[00:01:11] Speaker 04:
We don't get a review whether something was arbitrary and capricious, do we?

[00:01:16] Speaker 04:
I mean, we get a review of legal question.

[00:01:19] Speaker 04:
And I thought the issue here was, what legal rule should the Veterans Court apply for CPI?

[00:01:26] Speaker 04:
That's correct.

[00:01:27] Speaker 04:
I'm a little confused.

[00:01:30] Speaker 04:
It seems to me that the precedent splits between mostly using local and some using national.

[00:01:37] Speaker 02:
Correct.

[00:01:38] Speaker 04:
But I couldn't understand your argument as arguing for either, since you were arguing for DC, which is neither local nor national.

[00:01:51] Speaker 02:
Well, what I'm arguing for, Your Honor, is

[00:01:55] Speaker 02:
Excuse me.

[00:01:56] Speaker 02:
What this case presents is a question of statutory interpretation.

[00:02:00] Speaker 00:
The language used by Congress merely... Is it which local?

[00:02:05] Speaker 00:
Is that your question?

[00:02:06] Speaker 00:
Which local applies?

[00:02:08] Speaker 02:
No, Your Honor.

[00:02:09] Speaker 02:
I believe that the statute is ambiguous on its face as to what computational method is to be utilized.

[00:02:16] Speaker 02:
The courts have generally accepted that CPI is the correct methodology to use it.

[00:02:22] Speaker 02:
Within CPI, there are several variables that deal with the location of the claimant, the location of the claimant's attorney, the location of the court.

[00:02:33] Speaker 02:
In the Veterans Court, the Veterans Court has adopted the location of the veteran's attorney as the criteria for that calculus.

[00:02:44] Speaker 02:
The fact is that the plain language of the statute mentions nothing about the method.

[00:02:49] Speaker 02:
The language of the statute merely says,

[00:02:52] Speaker 02:
Unless the court determines that an increase of cost of living exists, it does not say what that method will be.

[00:03:02] Speaker 02:
But we still have to decide what that method will be.

[00:03:05] Speaker 02:
That's what they've done.

[00:03:07] Speaker 02:
I'm not sure that this court has to determine what method it has.

[00:03:10] Speaker 04:
Are you saying the Veterans Court in some cases say national is good, in some cases say local is good, in some cases say the forum is good?

[00:03:20] Speaker 02:
No, Your Honor, I believe that the interpretation that should be adopted by this court is that the method which favors the claimant is- I'm sorry.

[00:03:33] Speaker 04:
We get that argument.

[00:03:34] Speaker 04:
Maybe my colleagues have some questions about it.

[00:03:36] Speaker 04:
I don't.

[00:03:37] Speaker 04:
That term friendly interpretation of EJ doesn't seem at all merit.

[00:03:43] Speaker 04:
have any merit to me since EJA is not a veteran statute.

[00:03:46] Speaker 04:
So what I want to know is, and you can say what you want.

[00:03:49] Speaker 04:
I mean, you're not going anywhere with me on that.

[00:03:53] Speaker 04:
What rule should the Veterans Court be applying for CPI?

[00:03:57] Speaker 04:
I mean, it's very clear that courts across the country have looked at this.

[00:04:01] Speaker 04:
It seems like the majority of them have went with local.

[00:04:04] Speaker 04:
Some have went with national.

[00:04:06] Speaker 04:
I'm not aware of any of them going with a forum or the forums located.

[00:04:11] Speaker 04:
But if there are, you can tell me about them.

[00:04:13] Speaker 04:
It seems there's three choices.

[00:04:14] Speaker 04:
Which one do you want us to adopt?

[00:04:18] Speaker 02:
I want you to adopt a rule that says that based upon the ambiguity of the statute and that this statute is being applied in the context of veterans' cases, that the rule should be that whatever method is most favorable to the veterans

[00:04:35] Speaker 02:
is the rule that should be applied.

[00:04:38] Speaker 04:
So whichever gets you the highest CPI, whether it's local, foreign, or national.

[00:04:43] Speaker 02:
OK.

[00:04:43] Speaker 04:
Yes.

[00:04:43] Speaker 02:
Because to me, if you get bogged down.

[00:04:45] Speaker 02:
OK.

[00:04:45] Speaker 04:
I get your position on that.

[00:04:47] Speaker 04:
Do you have a backup position?

[00:04:50] Speaker 04:
If we don't agree with that, we still have to tell the Veterans Court has a rule, a legal rule, I think.

[00:04:57] Speaker 04:
I mean, it seems like their legal rule is location of the attorney.

[00:05:02] Speaker 04:
Correct.

[00:05:03] Speaker 04:
Are you not asking us to, assuming we disagree with you on your main point, are you not asking us to review that?

[00:05:10] Speaker 02:
Yes, Your Honor.

[00:05:12] Speaker 02:
And to determine that that is incorrect and that there is no basis for that in the plain language of the statute.

[00:05:19] Speaker 02:
And it seems to me that under the rules of statutory construction, they can't simply adopt a rule.

[00:05:26] Speaker 02:
Well, they have to construe the statute.

[00:05:28] Speaker 02:
Yes, they do.

[00:05:29] Speaker 02:
And in so doing, we believe that they have misinterpreted the statute

[00:05:33] Speaker 02:
by selecting a specific rule that, as in this case, causes harm to an applicant.

[00:05:41] Speaker 00:
If we agree with their interpretation that it's the attorney's location that matters, if we do, then that's kind of the end of the inquiry, right?

[00:05:50] Speaker 00:
We can't look at what that location is or look at their interpretation of whether they picked the right location, whether they should have looked at all three locations of the offices or just looked at one.

[00:06:04] Speaker 00:
That's, we wouldn't look at that, right?

[00:06:05] Speaker 00:
That would be an application of law to fact or no?

[00:06:10] Speaker 02:
Honestly, I'm not sure in this case, Your Honor, simply because we are in this case different than most cases that come before this court in the veterans context, having to deal with Chevron deference.

[00:06:22] Speaker 02:
We're dealing with a statute that is completely separate.

[00:06:24] Speaker 02:
There is no regulation.

[00:06:26] Speaker 02:
We're only looking at what this statute says.

[00:06:29] Speaker 02:
This statute speaks in ambiguous terms about

[00:06:34] Speaker 02:
cost of living.

[00:06:36] Speaker 02:
That determination seems to me to be a determination that should be resolved in the veteran's favor and that no burden should be imposed by a rule of the Veterans Court that says that, as in this case, you get no cost of living increase or that you get a cost of living increase that is dictated by only one standard.

[00:07:02] Speaker 02:
that the standard should be the standard that is most advantageous to the applicant.

[00:07:08] Speaker 02:
This is a remedial statute created by Congress in order to compensate the claimant for having to bring the action that they brought.

[00:07:17] Speaker 00:
But it's the same statute that applies to parties other than veterans, correct?

[00:07:23] Speaker 02:
That's correct.

[00:07:24] Speaker 00:
And your view is that it should be interpreted differently for veterans

[00:07:28] Speaker 00:
because of the proclamant nature of the veterans system?

[00:07:32] Speaker 02:
Yes, because number one, Congress added on this court, you know, by specific amendment to the statute to add this court, so Congress can be imputed to have known that this was going to be applied in the context of veterans cases and that veterans cases are unique and special.

[00:07:52] Speaker 04:
And that in those cases... Does the pro-veterans canon only apply to cases at the Veterans Court?

[00:08:00] Speaker 04:
I thought the Supreme Court pro-veterans canon applied any time I was a veteran.

[00:08:06] Speaker 02:
Any time that there is a statute in which the interests of a veteran or a beneficiary of a veteran statute is at issue.

[00:08:15] Speaker 02:
That would be correct.

[00:08:16] Speaker 04:
So in your view, then, this

[00:08:18] Speaker 04:
your position wouldn't just be confined to the Veterans Court.

[00:08:21] Speaker 04:
It could go anywhere where there's a veteran-specific statute.

[00:08:26] Speaker 04:
For instance, at the MSPB, we have all these cases where federal employees who are returning soldiers and the like gain some kind of preferential requirement rates or veterans preference.

[00:08:43] Speaker 04:
Is it your view that whether or not you get

[00:08:48] Speaker 04:
enhanced edufees, I'll call it, is the Congress intended to give veterans more edufees than other federal employees at the MSPD.

[00:09:04] Speaker 02:
I mean, that's the logic of your argument, I think, that if we're talking about- Well, that may well be true, Your Honor, but I'm not sure that that is pertinent to answering the question in this case.

[00:09:16] Speaker 04:
Well, but we've got to think about the scope of what your position is.

[00:09:20] Speaker 04:
And your position is, if it's a case involving any kind of veterans' rights or affecting veterans, EGRA should apply differently than to the rest of the people suing the government.

[00:09:33] Speaker 04:
I can't see any indication when Congress enacted EGRA that they thought that was the case.

[00:09:40] Speaker 02:
And I'm suggesting that the indication is when they added the Veterans Court

[00:09:46] Speaker 02:
to the IJA statute.

[00:09:47] Speaker 02:
There was a question that arose.

[00:09:49] Speaker 04:
But there's no way to cabin the practice at the Veterans Court to your interpretation of IJA.

[00:09:59] Speaker 02:
Except, Your Honor, that the IJA statute was deemed by Congress to be applicable to the disposition of Veterans Court cases.

[00:10:10] Speaker 02:
Now, clearly, in my view, this Court could limit

[00:10:13] Speaker 02:
any decision to adjust those parameters.

[00:10:16] Speaker 02:
I appreciate what you're saying, that certainly the implication could be that if you say, in your opinion, that veterans get that additional benefit, it could be applicable in other circumstances.

[00:10:27] Speaker 04:
Can I, before you're into your little, oh, I'm sorry.

[00:10:30] Speaker 04:
I'm going to ask you, because I don't think I understood your answer.

[00:10:32] Speaker 04:
Let's assume we disagree with you on this point.

[00:10:36] Speaker 04:
And we adopt the Veterans Court's interpretation

[00:10:40] Speaker 04:
It will use local CPR and that's the correct legal rule.

[00:10:46] Speaker 04:
Correct.

[00:10:46] Speaker 04:
What else is there for us to do in this case within our jurisdiction?

[00:10:56] Speaker 02:
I think within this court's jurisdiction, this court must decide whether or not the, what I would call sanction imposed by the Veterans Court

[00:11:08] Speaker 02:
in disallowing any increase was consistent with that interpretation, because the veteran, when she submitted her application, showed what that cost of living would have been for the local location of Veterans Council.

[00:11:28] Speaker 02:
Now, they did so in three different circumstances, because in this particular law firm, there were three different locations that participated.

[00:11:38] Speaker 02:
Therefore, I think this court does have jurisdiction to address what amounts to a sanction because the court read into the statute that it was the burden of the appellant of the applicant for IJA to demonstrate which of those applied.

[00:11:56] Speaker 02:
That's not what the statute says.

[00:11:59] Speaker 02:
And what the court did was to retaliate against Mrs. Parrott and deny any

[00:12:06] Speaker 02:
cost of living increased, and only awarded the $125.

[00:12:09] Speaker 03:
OK, thank you.

[00:12:10] Speaker 03:
Let's hear from the government.

[00:12:11] Speaker 03:
Oh, sorry.

[00:12:12] Speaker 03:
One question, Mr. Carter.

[00:12:15] Speaker 03:
The government came in below and urged the Dallas-Fort Worth figure.

[00:12:22] Speaker 03:
And the Court of Veterans' Appeals came back and said, no, it's Dallas-Fort Worth, Little Rock, and San Francisco because of the location of the offices.

[00:12:32] Speaker 03:
Between those two, the

[00:12:35] Speaker 03:
position urged by the government and what the court.

[00:12:37] Speaker 03:
Do we have jurisdiction to decide which of those was the correct approach?

[00:12:42] Speaker 02:
I believe you do, Your Honor, because of the ambiguity of the language of the statute.

[00:12:47] Speaker 02:
And that's why... But aren't they both local approaches?

[00:12:52] Speaker 03:
I mean, they're local in one instance, one locality, in the other instance, three localities, because the attorney happens to have three offices.

[00:13:03] Speaker 03:
So it's

[00:13:04] Speaker 03:
We're not, are we really in an application of law to fact?

[00:13:08] Speaker 02:
I don't think so, your honor, because it deals with what is the rule.

[00:13:13] Speaker 02:
I believe, as Judge Hughes correctly pointed out, this is all about what's the rule.

[00:13:17] Speaker 04:
Right.

[00:13:18] Speaker 04:
But the problem for you there is in it that, I mean, you found some of it a better argument because the court just refused to decide.

[00:13:26] Speaker 04:
But if you had urged Dallas, the government had urged Little Rock,

[00:13:31] Speaker 04:
And the court had said, Little Rock, instead of Dallas, we don't get to argue that, do we?

[00:13:37] Speaker 04:
Absolutely not.

[00:13:37] Speaker 04:
So what's the difference between no CPI and local CPI?

[00:13:43] Speaker 02:
It goes back to what does the statute mandate.

[00:13:47] Speaker 02:
And the statute either mandates a specific method or it doesn't.

[00:13:51] Speaker 02:
And if it doesn't and there's ambiguity, then this court must resolve that ambiguity.

[00:13:56] Speaker 02:
I urge that you resolve it under the canon for veterans, but you can also resolve it under the canon that deals with remedial statutes.

[00:14:05] Speaker 02:
Have I answered your question?

[00:14:06] Speaker 02:
Yes.

[00:14:07] Speaker 02:
Thank you very much.

[00:14:20] Speaker 01:
Good morning and may it please the court.

[00:14:22] Speaker 01:
My name is Albert I. Rossi.

[00:14:23] Speaker 01:
I'm here on behalf of the Secretary of the Department of Veterans Affairs.

[00:14:27] Speaker 01:
This court should affirm the ruling from the Court of Appeals for Veterans Claims.

[00:14:31] Speaker 04:
Given that the government agreed, I think, below that the Dallas or CTI was the one that should have been used, why shouldn't we remand it to at least give them that?

[00:14:43] Speaker 01:
Well, Your Honor, there's a couple of reasons.

[00:14:46] Speaker 01:
First, I think embedded in your question is, is there a standard of review of the Veterans Court determination

[00:14:54] Speaker 01:
to only limit the fee to the statutory maximum.

[00:14:58] Speaker 01:
I think in that case, the standard review would be an abuse of discretion.

[00:15:01] Speaker 01:
In this particular case, the court would not be justified in remanding it for a few different reasons.

[00:15:08] Speaker 01:
One, the burden.

[00:15:09] Speaker 04:
Wait, wait.

[00:15:10] Speaker 04:
I don't understand that at all.

[00:15:11] Speaker 04:
Are you suggesting that we can review Veterans Court decisions for abuse of discretion?

[00:15:18] Speaker 01:
Well, I think that the answer to that question is tied into the question of whether EJA

[00:15:23] Speaker 01:
is a veterans benefit statute.

[00:15:27] Speaker 01:
And to the extent that it applies to everyone, it's not a particular veterans benefit, I think that the application of law to the fact for the Egypt portion of this case could be reviewed by this court.

[00:15:40] Speaker 01:
If the court were to conclude that Egypt... Really?

[00:15:43] Speaker 01:
I'm sorry?

[00:15:44] Speaker 01:
I'm sorry.

[00:15:45] Speaker 04:
I don't mean to put you on the spot, but is this a fully vetted position coming from the government?

[00:15:52] Speaker 04:
I'm a little bit surprised to hear you think we can review Veterans Court's decisions on each of the matters for abuse of discretion.

[00:16:01] Speaker 01:
What I'm saying is that if the court were to conclude that it is a universally applicable statute in a way that conflicts with what the appellant here is urging, the appellant is urging that this is really a Veterans benefit statute and that they are entitled to a broad construction based upon the fact that the

[00:16:22] Speaker 01:
that the statute benefits veterans in some way.

[00:16:26] Speaker 01:
If the court were to disagree with that and conclude that it applies to everyone, then I think that depends on if the veterans court were, for instance, I'm not trying to fight the hypothetical, but were to decide that the number of hours required or reasonably required in order to handle a particular veterans case was inappropriate based on its expertise with veterans cases, then that sort of decision about the number of

[00:16:52] Speaker 01:
hours reasonably required would not be reviewed by this court.

[00:16:56] Speaker 01:
The CPI methodology calculation, which is not veteran-specific, and if that statute applies to every plaintiff, as the government has argued in our brief, then that particular.

[00:17:11] Speaker 04:
Well, sir, I mean, the legal interpretation of each about which methodology, local or national

[00:17:20] Speaker 04:
if somebody has adopted a foreign law, that's a legal interpretation of the statute.

[00:17:25] Speaker 04:
I get that.

[00:17:27] Speaker 04:
And we don't read that for abuse of discretion.

[00:17:29] Speaker 04:
We read that to no goal.

[00:17:31] Speaker 01:
Correct.

[00:17:32] Speaker 01:
I'm not arguing that you should.

[00:17:34] Speaker 01:
I'm sorry.

[00:17:36] Speaker 00:
Are you saying that when we look at, assuming that we agree with the court of law, let's just assume for a minute, that we agree with the rule and methodology for Egypt, that it should be local.

[00:17:49] Speaker 00:
We agree with that.

[00:17:50] Speaker 00:
with what the decision below was.

[00:17:53] Speaker 00:
How do we handle the fact that the court below said, well, you didn't provide the right itemized statement for me to be able to determine the amount of fees, and therefore you just get none above 125?

[00:18:06] Speaker 00:
Are you saying we review that for an abuse of discretion?

[00:18:11] Speaker 01:
No.

[00:18:12] Speaker 01:
If I said that, I misspoke.

[00:18:14] Speaker 01:
What I was trying to say was that if this court needs to review whether

[00:18:20] Speaker 01:
it was proper for the Veterans Court to award merely $125 in attorney's fees instead of increasing it based on the cost of living.

[00:18:30] Speaker 00:
Or allowing an opportunity to submit the right information once the applicable rule was known.

[00:18:36] Speaker 01:
So the Supreme Court in Blum v. Stenson has said that the burden is, and this court as well, by the way, has said that the burden is on each applicant to provide sufficient information to show that an increase in the cost of living

[00:18:50] Speaker 01:
justifies an increase in a fee award.

[00:18:53] Speaker 01:
And in the court below, what happened was there was certainly a long timeline of Veterans Court cases.

[00:19:02] Speaker 01:
That said, starting with Menino in 1999, in order to calculate an appropriate cost of living, an EJA applicant must use the local CPI.

[00:19:12] Speaker 01:
That was first articulated by Chief Judge Hagel in 1999 in Menino's case.

[00:19:17] Speaker 01:
It was also reiterated in

[00:19:22] Speaker 01:
Bartledge by the the Vectors Court in 2005.

[00:19:26] Speaker 01:
So going into the when Ms.

[00:19:29] Speaker 01:
Parrott's attorney submitted her fee application in the court below.

[00:19:33] Speaker 00:
Is it your position that she should have known what the rule was so she should have initially provided the right information?

[00:19:37] Speaker 01:
Well certainly that's part of it.

[00:19:40] Speaker 01:
The rule had been articulated so she was certainly on notice that the rule in the Court of Vectors Claims was you must use the local CPI calculating the cost of living increase.

[00:19:49] Speaker 01:
When

[00:19:50] Speaker 01:
And so she had an opportunity at the very outset to perform the method the proper way.

[00:19:54] Speaker 01:
Upon briefing, the VA pointed out that the calculation using this DC or national or however you want to qualify, I guess it's Washington DC, was inappropriate and did not prove that the cost of living increase had justified an increase in the reasonable attorney's fee hourly calculation.

[00:20:14] Speaker 01:
At that point, the EJ applicant could have also submitted

[00:20:18] Speaker 01:
a request to amend their application.

[00:20:21] Speaker 01:
They could have provided the information to the court in its reply brief.

[00:20:25] Speaker 01:
It didn't either.

[00:20:26] Speaker 01:
Ms.

[00:20:27] Speaker 01:
Parrott simply maintained her stance that what she did was appropriate, and she should be entitled to the fee increase based on the methodology she chose.

[00:20:34] Speaker 01:
So it was certainly, in some sense, at her peril, given that the long history for 17 years of how EJ application fees should be calculated.

[00:20:42] Speaker 01:
She had multiple opportunities to provide the information to the court so that the court could make such a determination.

[00:20:47] Speaker 01:
As the Veterans Court noted below, it doesn't have to take on the role of a green-eye shaded auditor and perform those calculations itself.

[00:20:53] Speaker 01:
Attorney General, let me ask you a question.

[00:20:55] Speaker 03:
Have you finished answering Joe Stoltz's question?

[00:20:58] Speaker 03:
Let me ask you this question.

[00:20:59] Speaker 03:
I mean, what happened here is government came in with the Dallas-Fort Worth figure.

[00:21:05] Speaker 03:
The court said, no, we're going with the three locations.

[00:21:10] Speaker 03:
And then it said, however, since no information was provided with respect to the three locations,

[00:21:17] Speaker 03:
You're stuck with the 125.

[00:21:19] Speaker 03:
Are you saying that in this case, we don't have to decide the issue of whether the national approach or the forum approach is correct?

[00:21:27] Speaker 03:
Because the court, although it said in reaching its ultimate judgment that the local approach is the correct approach, I'm sorry, the local is approached to the national.

[00:21:39] Speaker 03:
It said the local approach is correct.

[00:21:41] Speaker 03:
It chose one of two possible local approaches, but then didn't really use either.

[00:21:46] Speaker 03:
It just went with the 125.

[00:21:48] Speaker 03:
In other words, given the way the case ended up, do we still have to decide, in your view, whether the local approach or the national approach is correct?

[00:22:02] Speaker 01:
I think if the court were to conclude that the national approach was the proper way and was mandated by the plain language of the statute, if the court were to conclude that,

[00:22:16] Speaker 01:
then it would obviously require a remand to the Veterans Court.

[00:22:21] Speaker 04:
So the question of whether- It doesn't seem like that's what your opponent is.

[00:22:24] Speaker 04:
Your friend is arguing, though, is it?

[00:22:27] Speaker 01:
Ms.

[00:22:27] Speaker 01:
Parrott's argument sort of highlights the lack of a reasonable nexus or foundation that her methodology would really call for, because she's not actually asking for a local CPI or a national CPI reform rate, as you already noted.

[00:22:42] Speaker 04:
Well, no, she's arguing.

[00:22:44] Speaker 04:
She's arguing.

[00:22:45] Speaker 04:
It's a stretch, I think, but her argument's very consistent.

[00:22:49] Speaker 04:
She's saying veterans should get whatever the highest rate is, whether it's local, national, or foreign.

[00:22:56] Speaker 01:
Well, the problem with that is that it's not really a pro-claimant rule that she's advocating.

[00:23:00] Speaker 01:
It's a pro-lawyer rule.

[00:23:01] Speaker 01:
And there's two reasons I say that.

[00:23:03] Speaker 04:
One... Sure, but that's a legal argument.

[00:23:05] Speaker 04:
We've got to address his argument and say whether we think that's right or not.

[00:23:08] Speaker 04:
But I think what my colleague is getting at, once we address that legal argument,

[00:23:14] Speaker 04:
Is there any reason for us to wade into the local or national CPI debate, since it's not really an issue in this case?

[00:23:23] Speaker 01:
I don't think the court is required to wade into it.

[00:23:26] Speaker 01:
I certainly think that in the context of how it could be applied to both the Court of Federal Claims and the Veterans Court, clarity may be helpful.

[00:23:38] Speaker 01:
But I don't think it's required by the court to weigh in on that.

[00:23:43] Speaker 01:
When it comes to how the court acted below, I mentioned a moment ago that Ms.

[00:23:50] Speaker 01:
Parrott's position is really pro-law reverse pro-claiming.

[00:23:52] Speaker 01:
In this particular case, even Ms.

[00:23:54] Speaker 01:
Parrott's counsel admitted that the approach that the Veterans Court ruled upon and adopted below would actually have increased the fees that Ms.

[00:24:04] Speaker 01:
Parrott's attorney would have received had he actually provided those calculations.

[00:24:13] Speaker 01:
Reply beef are below in the Court of Veterans Claims.

[00:24:16] Speaker 01:
I think it's J-68-69.

[00:24:17] Speaker 01:
She pointed out that had she used the San Francisco CPI to increase the rates for the work performed in that location, the amount of fees that they would have received would have been higher than simply the DC CPI that she actually used in her application.

[00:24:33] Speaker 01:
So I think that that only underscores the reasonableness of the Veterans Court's adoption of the local CPI where the

[00:24:42] Speaker 01:
the work of the attorney was actually performed.

[00:24:47] Speaker 01:
I think I've talked of... But that's not what she ended up with.

[00:24:51] Speaker 01:
It is not what she ended up with because she chose to ignore the rule that the Veterans Court set forth in Menino and re-articulate in Bartledge and because she also refused... So is it necessary for us to look at whether the Veterans Court correctly went with the local CPI?

[00:25:12] Speaker 01:
I don't think it's necessary for the court to do so.

[00:25:15] Speaker 01:
The court could simply conclude that the Veterans Court's decision selecting any particular CPI was appropriate.

[00:25:25] Speaker 01:
Certainly, if the court were to find that the statute was ambiguous or called for a particular national CPI versus a local CPI, I think that would be a different situation.

[00:25:37] Speaker 01:
But in the context of Judge Shaw's questions, I don't think that Nicole would have to find.

[00:25:42] Speaker 01:
In this case?

[00:25:43] Speaker 01:
Yes, Your Honor.

[00:25:46] Speaker 01:
If there's nothing further.

[00:25:57] Speaker 04:
Mr. Corpenter, I'll give you two minutes, since we ask you a lot of questions.

[00:26:00] Speaker 04:
Thank you.

[00:26:01] Speaker 02:
I'd like to bring the court's attention back to what I believe is the central issue here, and that's the interpretation of this statute.

[00:26:09] Speaker 02:
And that while I appreciate the fact that this court has to review what the lower court did, what the lower court did clearly relied upon an interpretation of this statute.

[00:26:20] Speaker 02:
Now, this statute, in Ms.

[00:26:22] Speaker 02:
Parrott's view, does not dictate, does not mandate, does not direct, or even suggest how the computation should be made.

[00:26:31] Speaker 02:
And in fact, the court has adopted a rule that there is a one rule that fits all situations.

[00:26:38] Speaker 02:
That rule is inconsistent with the plain language of the statute.

[00:26:42] Speaker 00:
The statute says cost of living.

[00:26:45] Speaker 00:
Why would it be the cost of living where the court is when the attorney is only there for a day or two?

[00:26:50] Speaker 02:
Because that's where the litigation is.

[00:26:52] Speaker 02:
This is a national court, Your Honor.

[00:26:54] Speaker 00:
But these are attorney fees that relate to

[00:26:57] Speaker 02:
And the work done by an attorney in Washington DC versus Boston versus Topeka, Kansas is no different than the work performed in any other... But their cost of living in Topeka, Kansas versus Boston versus DC might be different.

[00:27:14] Speaker 00:
And that's the point.

[00:27:16] Speaker 02:
That's correct, Your Honor.

[00:27:17] Speaker 02:
And the question is, what does this statute say in terms of how that cost of living is to be computed?

[00:27:25] Speaker 02:
I don't disagree that there is the differential.

[00:27:28] Speaker 02:
I'm asking this court to focus on what the statute says.

[00:27:32] Speaker 02:
If the statute gives no direction, is it reasonable for the court to adopt a rule?

[00:27:38] Speaker 00:
But you presume that there's no direction from the words cost of living associated with something that's attorney fees.

[00:27:44] Speaker 00:
Why, oh, you're just left with not knowing where to turn to figure out where the cost of living is that the statute's referring to.

[00:27:52] Speaker 02:
No, Your Honor, clearly the court nationally

[00:27:55] Speaker 02:
have adopted the CPI index as the proper methodology.

[00:27:59] Speaker 02:
The problem therein is there are different methodologies within that that are based upon a calculus that is determined upon where you start.

[00:28:10] Speaker 02:
And do you start is what the where you start is what's not dictated by the statute.

[00:28:18] Speaker 02:
And in this context, we're talking about a veteran or a veteran survivor

[00:28:24] Speaker 02:
who has been forced to go to court to correct a mistake, a mistake that was not only wrong, but was not substantially justified.

[00:28:33] Speaker 02:
Now we're talking about quite literally what amounts to less than $10 an hour worth of differential.

[00:28:41] Speaker 02:
And so it just seems to me, Your Honor, that if there was ever a circumstance that a remedial statute was going to be interpreted in favor of the applicant, whether you adopt that this is special to the veteran or not,

[00:28:53] Speaker 02:
It should be adopted in favor of the person that was forced to go to court.

[00:28:57] Speaker 02:
The differential just simply is not that much.

[00:29:01] Speaker 02:
And the overarching intent of Congress was to adequately compensate, and quite candidly, the hourly rate, whether $10 less or $10 more, is not adequate to compensate.

[00:29:16] Speaker 04:
Thank you, Mr. Court.

[00:29:17] Speaker 02:
Thank you.