Delano v. Collins

• Court: Court of Appeals for the Federal Circuit
• Decided: August 20, 2025
• Docket: 25-1170
• Status: Unpublished

Opinion

Case: 25-1170 Document: 30 Page: 1 Filed: 08/20/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

KENNETH J. DELANO, JR., Claimant-Appellant

v.

DOUGLAS A. COLLINS, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2025-1170 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 20-5431, Chief Judge Michael P. Allen, Judge Amanda L. Meredith, Judge Scott Laurer. ______________________

Decided: August 20, 2025 ______________________

KENNETH J. DELANO, Madison, AL, pro se.

AN HOANG, Commercial Litigation Branch, Civil Divi- sion, United States Department of Justice, Washington, DC, for respondent-appellee. Also represented by CLAUDIA BURKE, MICHAEL GRANSTON, PATRICIA M. MCCARTHY; MATTHEW ALBANESE, BRIAN D. GRIFFIN, DEREK SCADDEN, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. Case: 25-1170 Document: 30 Page: 2 Filed: 08/20/2025

______________________

Before PROST, REYNA, and CUNNINGHAM, Circuit Judges. PER CURIAM. Kenneth J. Delano, Jr. appeals a decision of the Court of Appeals for Veterans Claims (“Veterans Court”) affirm- ing-in-part and denying-in-part his application for ex- penses under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Delano v. McDonough, 38 Vet. App. 25, 30 (2024) (“Decision”). To the extent Mr. Delano sought costs under 28 U.S.C. § 2412(a), the Veterans Court also dis- missed the EAJA application. Id. We affirm-in-part and dismiss-in-part. I. BACKGROUND Mr. Delano is a veteran who applied for disability com- pensation for disabilities involving his eyes and back. De- cision at 30; S. App’x 9. 1 On July 28, 2020, Mr. Delano appealed a November 15, 2019, Board of Veterans’ Appeals (“Board”) decision, which denied entitlement to a disability rating greater than 30 percent for his eye condition. Deci- sion at 30; S. App’x 9. The Veterans Court vacated the Board’s decision and remanded for the Board to provide an adequate statement of reasons or bases with respect to the rating decision for Mr. Delano’s eye condition. Decision at 30; S. App’x 9. The Veterans Court also determined that Mr. Delano did not demonstrate that the Board erred in failing to address the appropriate rating for his back disa- bility. Decision at 30; S. App’x 9. Mr. Delano appealed the Veterans Court’s decision relating to the back disability to this court, and we dismissed his appeal. Decision at 30; see

1 We refer to the supplemental appendix filed with the government’s response brief, ECF No. 19, as “S. App’x” throughout this opinion. Case: 25-1170 Document: 30 Page: 3 Filed: 08/20/2025

DELANO v. COLLINS 3

Delano v. McDonough, No. 2022-1694, 2022 WL 5239085, at *2 (Fed. Cir. Oct. 6, 2022). On March 13, 2023, Mr. Delano filed an EAJA applica- tion for an award in the amount of $12,085.51. Decision at 29; S. App’x 75. Mr. Delano’s EAJA application was based on the following costs, fees, and expenses: $8,338.72 for the time he spent researching and drafting his appeal (multiplying the $160.36 hourly market rate for paralegals by 52 hours); $2,299.35 for internet expenses (multiplying his monthly $153.29 bill by 15 months); $1,286.25 for seven trips to the University of Alabama Bounds Law Library (multiplying the Internal Revenue Service’s (“IRS”) $0.625/mile rate (the “IRS business rate”) by 2,058 miles); $50.00 for the court filing fee; $45.00 for printer supplies and paper; $41.25 for copying; and $24.94 for postage. De- cision at 35; S. App’x 75. On August 17, 2023, a judge granted Mr. Delano’s ap- plication in part and denied it in part, awarding $423.95, including $307.76 for the estimated cost of gasoline to travel to the University of Alabama Bounds Law Library seven times by a personal vehicle. Decision at 29; S. App’x 4. Mr. Delano moved for reconsideration, and al- ternatively, a panel decision or full court review. Decision at 29; App’x 20. 2 On December 11, 2023, the Veterans Court granted Mr. Delano’s motion for reconsideration, “withdrew the Au- gust 2023 order, and sua sponte submitted the case to a panel to consider whether, in exercising its discretion to de- termine the amount to reimburse a pro se litigant for travel expenses, the [Veterans] Court may rely on the actual ex- penses, such as for gasoline, or instead must use the [IRS]

2 We refer to the corrected appendix filed by Mr. Delano, ECF No. 10, as “App’x” throughout this opin- ion. We cite to the ECF page numbers. Case: 25-1170 Document: 30 Page: 4 Filed: 08/20/2025

standard mileage rate for business use of a private vehicle (business rate).” Decision at 29; S. App’x 5. Among other things, the Veterans Court also ordered Mr. Delano to file an amended itemization of the expenses and costs for which he sought reimbursement. Decision at 29; S. App’x 37–40. 3

On reconsideration, on August 9, 2024, the Veterans Court granted in part and denied in part Mr. Delano’s EAJA application and dismissed Mr. Delano’s EAJA appli- cation to the extent that he sought costs pursuant to 28 U.S.C. § 2412(a). Decision at 30. The Veterans Court rea- soned that “even assuming that the [c]ourt would be re- quired to use the prevailing market rate to calculate travel expenses, the appellant has not demonstrated that the IRS business rate is the prevailing market rate or that the [c]ourt is otherwise bound to apply it in the EAJA context,” including because the IRS business rate incorporates other expenses such as license plate fees, registration fees, and insurance payments that are not incurred solely or exclu- sively in connection with litigation and thus cannot be re- imbursed under EAJA. Decision at 42–43. Mr. Delano appealed to this court. II. DISCUSSION “This court’s jurisdiction to review decisions by the Vet- erans Court is limited.” Wanless v. Shinseki, 618 F.3d 1333, 1336 (Fed. Cir. 2010). We have exclusive jurisdiction to review any challenge to the validity of a statute or regu- lation or any interpretation of a statute or regulation. 38 U.S.C. § 7292(c). Except with respect to constitutional

3 In his response to the order, Mr. Delano changed his paralegal hourly rate from $160.36 to $155.45 and re- duced his claimed internet expenses to 25% of his internet use used for litigation. See S. App’x 39 n.1; compare S. App’x 39–40, with S. App’x 75. Case: 25-1170 Document: 30 Page: 5 Filed: 08/20/2025

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issues, we “may not review (A) a challenge to a factual de- termination, or (B) a challenge to a law or regulation as ap- plied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2). “[W]e review the Veterans Court’s legal de- terminations de novo.” Blubaugh v. McDonald, 773 F.3d 1310, 1312 (Fed. Cir. 2014). Mr. Delano frames his appeal as a challenge to the Vet- erans Court’s interpretation of 5 U.S.C. § 504 and Richlin Security Service Co. v. Chertoff, 553 U.S. 571, 577–80 (2008). Appellant’s Br. 5–19. 4 The government responds that we lack jurisdiction to entertain Mr. Delano’s appeal because the “Veterans Court did not interpret any law when considering Mr. Delano’s EAJA application.” Appel- lee’s Br. 11–12. According to the government, the “Veter- ans Court’s decision demonstrates that it made its decision based on factual findings and the straightforward applica- tion of law to fact, rather than any legal interpretation.” Id. at 12. Mr. Delano replies that the government “fails to prove the [Veterans Court] merely applied the law to the facts.” Appellant’s Reply Br. 3. As to Mr. Delano’s travel expenses, we agree with Mr. Delano, Appellant’s Br. 5, that the Veterans Court’s decision turns on statutory interpretation 5—namely, the directive that “a prevailing party that satisfies EAJA’s other requirements may recover its . . . fees from the Gov- ernment at prevailing market rates.” Richlin, 553 U.S. at 590 (relying on 5 U.S.C. § 504) (emphasis added). We accordingly have jurisdiction to review the Veterans

4 We cite to the ECF page numbers of Mr. Delano’s informal opening brief. ECF No. 6. 5 See also Decision at 40 n.13 (“Although the Su- preme Court was addressing 5 U.S.C. § 504, it noted that its ‘reasoning . . . would extend equally to . . . [28 U.S.C. §] 2412.’” (quoting Richlin, 553 U.S. at 577 n.3.)). Case: 25-1170 Document: 30 Page: 6 Filed: 08/20/2025

Court’s decision to the extent that it relied upon a legal in- terpretation of a statute. See 38 U.S.C. § 7292(c). We disagree with Mr. Delano’s contention that the Vet- erans Court misinterpreted the law. The Veterans Court properly interpreted the applicable statutes in conjunction with Richlin to require reimbursement using the prevail- ing market rate when such a rate can be determined. De- cision at 41–42 (citing Richlin, 553 U.S. at 580). The Veterans Court concluded that Mr. Delano had “not demon- strated that the IRS business rate is the prevailing market rate or that the [Veterans] Court is otherwise bound to ap- ply it in the EAJA context.” Decision at 42. As to Mr. Delano’s other transport-related expenses, the Veter- ans Court exercised its discretion in determining that they were not the type of expenses reimbursable under EAJA because they were not incurred solely or exclusively in con- nection with the litigation. Decision at 43–44. Accord- ingly, we affirm the Veterans Court’s decision as to Mr. Delano’s travel expenses. Mr. Delano also argues that he was entitled to addi- tional expenses for research and writing, including for his use of the internet and printing. See Appellant’s Br. 11–12. The government responds that these claims by Mr. Delano are based on factual determinations and that we thus lack jurisdiction. See Appellee’s Br. 13. We agree with the gov- ernment that we lack jurisdiction over these issues. We do not have jurisdiction as to Mr. Delano’s claims for research and writing, internet service, and printing ex- penses because his claims are based on an application of law to fact. Contrary to Mr. Delano’s assertion, the Veter- ans Court did not interpret EAJA to “deny reimbursement of the same type of expenses [awarded to represented par- ties] to pro se litigants.” Appellant’s Reply Br. 5. Rather, the Veterans Court simply applied the rule that “a litigant representing himself or herself may not be awarded attor- ney fees under EAJA.” Decision at 46. Because the Case: 25-1170 Document: 30 Page: 7 Filed: 08/20/2025

DELANO v. COLLINS 7

Veterans Court’s determination was based on a review of Mr. Delano’s itemized list of the tasks he performed for his case, its determination was factual, not legal, and its denial of the application of EAJA to the facts of Mr. Delano’s ap- plication lies outside of our jurisdiction. Lastly, we disagree with Mr. Delano’s suggestion that the proceedings below deprived him of his due process rights or other constitutional rights. See Appellant’s Br. 19. The constitutional challenge raised by Mr. Delano to the Veterans Court’s decision is a challenge in name only. See, e.g., Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999) (“[An appellant’s] characterization of [a] question as constitutional in nature does not confer upon us jurisdiction that we otherwise lack.”). Mr. Delano’s al- leged constitutional challenge does not confer jurisdiction that we otherwise lack over part of his appeal. III. CONCLUSION We have considered Mr. Delano’s remaining argu- ments and find them unpersuasive. For the foregoing rea- sons, we affirm-in-part and dismiss-in-part. AFFIRMED-IN-PART, DISMISSED-IN-PART COSTS No costs.