Charles L. Swanagan and Jesse B. Turman v. Denis McDonough, 19-1350(E), 19-3258

Two veterans (Swanagan and Turman) sought attorney fees under EAJA after successful JMPRs; both applications included hours attorney Harold H. Hoffman billed while working in Quito, Ecuador.
Appellants requested a cost-of-living (COL) increase above EAJA's $125 statutory hourly cap for Quito work, proposing an hourly rate of $196.50 based on averaging DoD and UN COL indices adjusted against selected U.S. cities.
The Secretary conceded EAJA eligibility and the hours claimed but opposed any COL increase for work performed outside the United States where the BLS CPI-U is unavailable, asking the Court to limit Quito work to $125/hr.
The Court considered whether EAJA permits COL increases for attorney work performed abroad and whether appellants' novel DoD/UN averaging methodology was a reasonable basis for a higher rate.
Holding: the Court concluded EAJA does not preclude COL increases for work performed outside the U.S., but appellants failed to demonstrate that their proposed method was reasonable; therefore Quito hours were awarded at the $125 statutory rate.
Resulting fee awards (reduced): Swanagan — $4,021.29; Turman — $6,771.61.

Issue	Plaintiff's Argument	Defendant's Argument	Held
May EAJA COL increases exceed $125 for attorney work performed outside the U.S. where BLS CPI-U data is not available?	COL increases are permitted; Elcyzyn requires CPI for U.S. locations but does not bar use of other indices abroad; EAJA silent on data source.	Elcyzyn implies use of BLS CPI-U; absence of foreign CPI-U means no COL increase abroad — limit to $125.	Court: EAJA does not geographically bar COL increases; foreign increases may be considered.
Is the appellants’ DoD/UN averaging method a reasonable way to calculate a Quito COL adjustment?	Use DoD and UN locality indices, adjust comparable U.S. city rates, average results to derive $196.50/hr for Quito.	Method has no legal basis, is conceptually flawed, and risks windfalls; court should reject novel formula.	Court: Method unsupported and insufficiently justified; appellants bear burden; denied — Quito hours paid at $125/hr.
Should the Court abandon the Elcyzyn midpoint/CPI-U method and adopt the Ninth Circuit’s national-CPI approach?	For efficiency and better alignment with purchasing power, adopt Ninth Circuit national CPI method and abandon Elcyzyn.	Argument raised too late; no authority to overrule controlling panel precedent here.	Court: Declines to consider new methodology raised in reply; retains Elcyzyn framework for now.

Elcyzyn v. Brown, 7 Vet.App. 170 (1994) (establishes CPI-U based COL adjustment method for EAJA rates)
Speigner v. Wilkie, 31 Vet.App. 41 (2019) (applies location-based CPI-U approach; addresses telework/nontraditional work locations)
Parrott v. Shulkin, 851 F.3d 1242 (Fed. Cir. 2017) (supports apportioning time and applying CPI for distinct work localities)
Blum v. Stenson, 465 U.S. 886 (1984) (appellant bears burden to demonstrate reasonableness of fee requests)
Hensley v. Eckerhart, 461 U.S. 424 (1983) (lodestar: hours reasonably expended times reasonable rate)
Pierce v. Underwood, 487 U.S. 552 (1988) (EAJA purpose and limits; fees aim for rough justice)
McDonald v. Nicholson, 21 Vet.App. 257 (2007) (identifies March 29, 1996 as EAJA statutory rate effective date)