Kenneth J. Delano, Jr. v. Douglas A. Collins, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.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
______________________
K ENNETH J. D ELANO, Madison, AL, pro se.
AN H OANG, Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by CLAUDIA
BURKE, MICHAEL G RANSTON, P ATRICIA M. MCCARTHY ;
MATTHEW ALBANESE , BRIAN D. G RIFFIN, D EREK SCADDEN,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
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DELANO v. COLLINS 2
______________________
Before P ROST , REYNA, and CUNNINGHAM , Circuit Judges.
P ER 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.
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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.
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DELANO v. COLLINS 4
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. D ISCUSSION
“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.
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DELANO v. COLLINS 5
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 interpretation5—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.)).
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DELANO v. COLLINS 6
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
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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.
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