author: BLACK, Circuit Judge:

text:
    OCHEESEE CREAMERY LLC, Plaintiff-Appellant, v. Adam H. PUTNAM, in his official capacity as Florida Commissioner of Agriculture, Zach Conlin, in his official capacity as Chief of Florida Bureau of Dairy Industry, Defendants-Appellees.
    No. 16-12049
    United States Court of Appeals, Eleventh Circuit.
    (March 20, 2017)

      Justin Pearson, Ari Simon Bargil, Institute For Justice, Miami, FL, for Plaintiff-Appellant.
    Ashley E. Davis, Jonathan Alan Glogau, Pam Bondi, Attorney General’s Office, Tallahassee, FL, David S. Grossman, Attorney General’s Office, Atlanta, GA, for Defendants-Appellees.
    Christina Y. Taylor, Latham Shuker Eden &. Beaudine, LLP, Orlando, FL, Mahesha P. Subbaraman, Subbaraman PLLC, Minneapolis, MN, for Amici Curiae Southeast Milk, Inc. and Farm and Ranch Freedom Alliance.
    Catherine Emily Stetson, Hogan Lovells US, LLP, Washington, DC, for Amicus Curiae International Dairy Foods Association.
    Before ROSENBAUM, BLACK and SENTELLE, Circuit Judges.

       Honorable David Bryan Sentelle, United States Circuit Judge for the District of Columbia, sitting by designation. •

   BLACK, Circuit Judge:

Ocheesee Creamery, LLC (the Creamery) appeals the district court’s grant of summary judgment to the Florida Commissioner of Agriculture and the Chief of the Florida Bureau of Dairy Industry, parties to this lawsuit in their official capacities (together, the State), and the court’s denial of the Creamery’s motion for summary judgment on the question of whether the State improperly forbade the Creamery from selling unfortified skim milk. The Creamery contends the State violated its First Amendment right to free speech by prohibiting the Creamery from using the words “skim milk” to describe its product. After review, we vacate the judgment of the district court.

I. BACKGROUND

The Creamery is a small dairy creamery located on its owners’ farm in rural Calhoun County, Florida. It sells all-natural dairy items, including whole milk, cream, and related items such as ice cream. It also sells all-natural skim milk, which is a byproduct of its cream production. Consistent with standard practice, the Creamery produces cream by causing it to rise to the top -of the milk and then skimming it off. The leftover product is skim milk: milk that has had the fat removed through skimming.

Incidentally, the skimming process depletes almost all the vitamin A naturally present in whole milk because vitamin A is fat-soluble and is thus removed with the cream. Vitamin A levels can be restored by introducing an additive to the resulting skim milk. The Creamery prides itself on selling only all-natural, additive-free products, and therefore refuses to replace the lost vitamin A in its skim milk. Its product contains no ingredients other than skim milk. The Creamery only sells its skim milk in Florida.

Florida law prohibits the sale of milk and milk products that are not Grade “A,” which requires, among other things, that vitamin A lost in the skimming process must be replaced. See Fla. Stat. § 502.091 (“Only Grade A’ pasteurized milk and milk products ... shall be sold at retail to the final consumer.”); Fla. Stat. § 502.014(5) (authorizing Florida Department of Agriculture to adopt rules); Fla. Admin. Code r. 5D-1.001(1) (adopting and incorporating by reference “Grade A Pasteurized Milk Ordinance' (‘PMO’), 2005 Revision, Public Health Service/Food and Drug Administration, its Appendices and notes”); U.S. Dep’t of Health & Human Servs., Grade “A” Pasteurized Milk Ordinance, at App’x O (2005) (“[V]itamins A and D must be added to dairy products from which fat has been removed; such as, reduced fat, lowfat, and nonfat dairy products, in an amount necessary to replace the amount of these vitamins lost in the removal of fat.”)- The Creamery sold its skim milk in Florida for nearly three years, beginning in 2010. In October 2012, the State issued two stop sale orders with respect to the Creamery’s skim milk, stating the milk lacked vitamin A. That left the Creamery with two alternatives: add vitamin A to its skim milk or cease to sell the product. The Creamery opted for the latter and began discarding the skim milk left over from its cream production rather than incorporate the additives. Meanwhile, it attempted to procure a permit to sell the unenhanced milk under Florida’s imitation milk statute. See Fla. Stat. § 502.165. The State began negotiating with the Creamery for the issuance of an imitation milk permit.

Initially, the State told the Creamery it could sell its product without adding vitamin A so long as it bore the label “imitation milk product,” but the Creamery objected to describing its all-natural product this way. The Creamery and the State entered into discussions with the object of finding a more suitable label for the product that addressed the Creamery’s concerns but did not mislead consumers into thinking the milk was Grade “A” skim milk with replenished vitamin A. By letter dated December 11, 2013, the State informed the Creamery that “Florida law provides that only Grade ‘A’ pasteurized milk and milk products shall be sold at retail within the state.” It nevertheless added that it had “determined that Florida law would allow [the Creamery] to offer this product for retail sale within the state” pursuant to the imitation milk statute if certain conditions were met, among them that the product label read as follows: “Non-Grade ‘A’ Milk Product, Natural Milk Vitamins Removed.” Replying in September 2014, the Creamery insisted that the State’s proposed label was misleading because the product was in fact skim milk, and should be labeled as such. It submitted five alternative labels, each of which included the words “skim milk.” The State responded on October 23, 2014, rejecting the Creamery’s suggestions and insisting that the skim milk be sold under a different name. It offered a counterproposal that mirrored one of the Creamery’s suggestions except that it substituted the term “milk product” in place of “skim milk.”

Negotiations ceased and the Creamery filed its complaint on November 20, 2014, contending the State’s refusal to allow it to call its product “skim milk” amounted to censorship in violation of the First Amendment. Cross-motions for summary judgment, responses, and replies were filed on June 22, July 27, and August 10, 2015, respectively. The district court granted summary judgment in favor of the State on March 30, 2016. It reasoned that it is inherently misleading to call a product “skim milk” if that product does not have the same vitamin content as whole milk. The State’s refusal to allow the Creamery to use the term “skim milk” thus withstood scrutiny under the threshold inquiry of the Central Hudson test for commercial speech regulations. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 563-64, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341 (1980). The court also found that the regulation passed muster under the three remaining prongs of Central Hudson as well.

The sole issue on appeal is whether the State’s actions prohibiting the Creamery’s truthful use of the term “skim milk” violate the First Amendment. We hold that they do.

II. STANDARD OF REVIEW

“This court reviews de novo the question of whether state restrictions on commercial speech are constitutional.” Mason v. Fla. Bar, 208 F.3d 952, 955 (11th Cir. 2000). In reviewing a grant of summary judgment, we apply the same standards as the district court and view all facts and reasonable inferences in the light most favorable to the nonmoving party. Borgner v. Brooks, 284 F.3d 1204, 1208 (11th Cir. 2002) (citing Parks v. City of Warner Robins, 43 F.3d 609, 612-13 (11th Cir. 1995)).

III. DISCUSSION

“Commercial speech, expression inextricably related to the economic interests of the speaker and audience, is undeniably entitled to substantial protection under the First and Fourteenth Amendments of the United States Constitution.” Mason, 208 F.3d at 955 (collecting cases). But it was not always so. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 505, 101 S.Ct. 2882, 2891, 69 L.Ed.2d 800 (1981) (plurality opinion) (“The extension of First Amendment protections to purely commercial speech is a relatively recent development in First Amendment jurisprudence. Prior to 1975, purely commercial advertisements of services or goods for sale were considered to be outside the protection of the First Amendment.” (citing Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942))). In Virginia State Board of Pharmacy v. Virginia Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), the Supreme Court decisively repudiated the notion that commercial speech receives no First Amendment protection. Id.; cf. Valentine, 316 U.S. at 54, 62 S.Ct. at 921 (“[T]he Constitution imposes no ... restraint on government as respects purely commercial advertising.”). Since that decision and those that followed, some, but not all, commercial speech has been held to be entitled to the protection of a form of intermediate scrutiny.

Challenges to restrictions on commercial speech are evaluated according to the rubric set forth by the Court in Central Hudson Gas & Electric Corp. v. Public Service Commission. 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). The Central Hudson analysis consists of a threshold question followed by a three-prong test. The threshold question asks “whether the expression is protected by the First Amendment” at all because, as noted above, some commercial speech re-' mains unprotected. Central Hudson, 447 U.S. at 566, 100 S.Ct. at 2351. Commercial speech does not merit First Amendment protection and may be regulated or even banned if (1) the speech concerns unlawful activity or (2) the speech is false or inherently misleading. See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 638, 105 S.Ct. 2265, 2275, 85 L.Ed.2d 652 (1985) (“The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading or that proposes an illegal transaction.” (citations omitted)); Cable/Home Commc’n Corp. v. Network Prods., Inc., 902 F.2d 829, 849 (11th Cir. 1990) (“[CJommereial speech, accorded lesser protection than other constitutionally guaranteed expression, may be banned if it relates to illegal activity.” (citing Central Hudson, 447 U.S. at 563-64, 100 S.Ct. at 2350)); Borgner, 284 F.3d at 1210 (“Inherently misleading or- false advertising ... may be regulated by the state at will.” (citing In re R.M.J., 455 U.S. 191, 203, 102 S.Ct. 929, 937, 71 L.Ed.2d 64 (1982))).

If the speech neither concerns unlawful activity nor is inherently misleading, satisfying the threshold criterion and thus meriting First Amendment protection, then the government may only regulate the speech if its restriction satisfies intermediate scrutiny under Central Hudson’s three-prong test. In the first prong, “we ask whether the asserted governmental interest is substantial.” Central Hudson, 447 U.S. at 566, 100 S.Ct. at 2351. In the remaining two prongs, “we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.” Id. A regulation that fails to pass muster violates the First Amendment.

With respect to both the threshold question and the three-prong test, the burden is on the government to produce evidence to support its restriction. Edenfield v. Fane, 507 U.S. 761, 770, 113 S.Ct. 1792, 1800, 123 L.Ed.2d 543 (1993) (“It is well established that the party seeking to uphold a restriction on commercial speech carries the burden of justifying it.” (quotation omitted)); see also Ibanez v. Fla. Dep’t of Bus. & Prof'l Regulation, 512 U.S. 136, 143, 114 S.Ct. 2084, 2089, 129 L.Ed.2d 118 (1994) (“The State’s burden is not slight; the ‘free flow of commercial information is valuable enough to justify imposing on would-be regulators the costs of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful.’ ” (quoting Zauderer, 471 U.S. at 646, 105 S.Ct. at 2279)). The requirement to produce evidence is essential, “otherwise ‘a State could with ease restrict commercial speech in the service of other objectives that could not themselves justify a burden on commercial expression.’ ” Miller v. Stuart, 117 F.3d 1376, 1382 (11th Cir. 1997) (quoting Rubin v. Coors Brewing Co., 514 U.S. 476, 487, 115 S.Ct. 1585, 1592, 131 L.Ed.2d 532 (1995)). With these precepts in mind, we turn to Central Hudson.

A. Threshold Question

1. Speech related to unlawful activity

The first question under the threshold inquiry is whether the restriction is permissible as a regulation of speech relating to unlawful conduct. The State asserts it is because the Creamery’s skim milk is simply prohibited for sale in Florida. If the only legal way to sell skim milk in Florida were to add vitamin A so that the milk ’ met the standards for a Grade “A” milk product, then banning the use of the term “skim milk” for non-complying milk would be lawful as a restriction of speech relating to the unlawful activity of selling non-Grade “A” milk. See Fla. Bar v. Went For It, Inc., 515 U.S. 618, 623-24, 115 S.Ct. 2371, 2376, 132 L.Ed.2d 541 (1995) (“[T]he government may freely regulate commercial speech that concerns unlawful activity.”); Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 389, 93 S.Ct. 2553, 2561, 37 L.Ed.2d 669 (1973) (“Any First Amendment interest which might be served by advertising an ordinary commercial proposal ... is altogether absent when the commercial activity itself is illegal and the restriction on advertising is incidental to a valid limitation on economic activity.”); Central Hudson, 447 U.S. at 563-64, 100 S.Ct. at 2350; see also Cable/Home Commc’n Corp., 902 F.2d at 849-50 (holding that copyright infringement suit against publisher of advocacy campaign newsletter advertising illegal de-scram-bling devices does not violate First Amendment). Put another way, the State’s action would be a regulation of illegal conduct, not speech. See Dana’s R.R. Supply v. Att’y Gen., 807 F.3d 1235, 1241-46, 1249 (11th Cir. 2015) (finding a law that permitted a price differential to be charged to customers if called a discount but that prohibited such a disparity if referred to as a surcharge regulated speech rather than conduct and was not exempt from Central Hudson scrutiny as a restriction on speech relating to illegal conduct).

However, the State and the Creamery agree that in Florida vitamin-deficient skim milk can lawfully be sold as “imitation” milk. Furthermore, the State demonstrated its willingness to issue an imitation milk permit to the Creamery subject to its desired labeling and has acknowledged throughout these proceedings that the Creamery’s skim milk can be sold as imítation milk. Because all that is being challenged is the State’s action with respect to the Creamery, we accept the State’s contention.

As a result, the State has presented the Creamery with two options given the Creamery’s unwillingness to add vitamin A: (1) sell the milk (pursuant to the imitation milk statute) but do not call it “skim milk;” or (2) call the product “skim milk” but face sanctions for violating Fla. Stat. § 502.091. The State’s action is a speech regulation because the only difference between the two courses of conduct is the speech. See Dana’s R.R. Supply, 807 F.3d at 1241-46. The Creamery’s speech “is the only behavior being targeted.” Id. at 1249; see also Abramson v. Gonzalez, 949 F.2d 1567, 1574 (11th Cir. 1992) (“Clearly the statutes do place restrictions on speech, for apparently anyone may currently practice psychology ... in Florida, but only those who have, met the examination/academic requirements of the statutes can say that they are doing so or hold themselves out as psychologists.... ”). As a result, the State cannot escape full Central Hudson scrutiny by characterizing its Restriction as a regulation of speech relating to unlawful conduct because the Creamery’s conduct is not unlawful, only its speech is.

2. False or inherently misleading speech

The remaining focus of our analysis under the threshold question of Central Hudson is whether in using the term “skim milk” the Creamery’s speech is inherently misleading or merely potentially misleading. If it is inherently misleading, the speech is not entitled to constitutional protection. See Borgner, 284 F.3d at 1210. Regulations of speech that is only potentially misleading must pass the three-prong Central Hudson test. Id.

The district court held the Creamery’s use of the term “skim milk” to describe its product was inherently misleading because it conflicted with the State’s definition of “skim milk,” according to which the product would include replenished vitamin A. See U.S. Dep’t of Health & Human Servs., Grade “A” Pasteurized Milk Ordinance, at App’x O (2005) (“[V]i-tamins A and D must be added to dairy products from which fat has been removed; such as, reduced fat, lowfat, and nonfat dairy products, in an amount necessary to replace the amount of these vitamins lost in the removal of fat.”). The court asserted that “[a] state can recognize — and indeed deliberately create — a standard meaning of a term used to describe a food product, including, in this instance, skim milk.”

It is undoubtedly true that a state can propose a definition for a given term. However, it does not follow that once a state has done so, any use of the term inconsistent with the state’s preferred definition is inherently misleading. Such a per se rule would eviscerate Central Hudson, rendering all but the threshold question superfluous. All a state would need to do in order to regulate speech would be to redefine the pertinent language in accordance with its regulatory goals. Then, all usage in conflict with the regulatory agenda would be inherently misleading and fail Central Hudson’s threshold test. Such reasoning is self-evidently circular, and this Court has already had occasion to refute it.

In Abramson, Florida’s professional li-censure regime permitted the practice of psychology by both licensed and unlicensed professionals, but only allowed those holding licenses to publicly hold themselves out as such. Abramson, 949 F.2d at 1572. The defendants there made the same argument the State makes here, namely, that “any commercial speech describing the plaintiffs as psychologists would be false and therefore unprotected by the first amendment since the statute defines a psychologist as someone who is licensed by the state to be a psychologist.” Id. at 1576. We pointed out the resemblance to Peel v. Attorney Registration and Disciplinary Commission, in which the Supreme Court rejected Illinois’ identical argument that its definition of the term “specialist” rendered a lawyer’s use of the term inherently misleading. Id. We explained that “[b]y finding that the attorney in that ease could legally hold himself out as a specialist in trial practice, the Court [in Peel] necessarily held that the state’s own definition of a specialist — or here a psychologist — cannot bar those who truthfully hold themselves out as specialists or psychologists from doing so.” Id. (citing Peel v. Att’y Registration and Disciplinary Comm’n, 496 U.S. 91, 103-105, 110 S.Ct. 2281, 2289-90, 110 L.Ed.2d 83 (1990) (plurality opinion)). Accordingly, we concluded in Abramson that we were “not bound by Florida’s definition of a psychologist.” Id.

The same analysis applies to the State’s definition of “skim milk.” Indeed, Peel indicates that statements of objective fact, such as the Creamery’s label, are not inherently misleading absent exceptional circumstances. Peel, 496 U.S. at 101-102, 110 S.Ct. at 2288 (concluding the phrase “Certified Civil Trial Specialist” was not inherently misleading in part because “[a] lawyer’s certification by NBTA is a verifiable fact, as are the predicate requirements for that certification,” though “if the certification had been issued by an organization that had made no inquiry” into the matter, “the statement, even if true, could be misleading”); see also Ibanez, 512 U.S. at 144, 114 S.Ct. at 2089 (“[A]s long as Ibanez holds an active CPA license from the Board we cannot imagine how consumers can be misled by her truthful representation to that effect.”); Parker v. Commonwealth of Ky., Bd. of Dentistry, 818 F.2d 504, 510 (6th Cir.1987) (“We cannot agree that such terms [as orthodontics, brackets, and braces] are inherently misleading. Such terms are not false, but actually describe procedures which a general practicing dentist is permitted to perform under state law.”). Calling the Creamery’s product' “skim milk” is merely a statement of objective fact. See, e.g., Skim milk, Webster’s Third New International Dictionary (1986) (defining “skim milk” as “milk from which the cream has been taken”).

This is not to say that a state’s definition of a term might not become, over time and through popular adoption, the standard meaning of a word, such that usage inconsistent with the statutory definition could indeed be inherently misleading. But the state must present evidence to that effect, and that has not been done here. See Edenfield, 507 U.S. at 770-71, 113 S.Ct. at 1800; Peel, 496 U.S. at 106, 110 S.Ct. at 2290 (“Given the complete absence of any evidence of deception in the present case, we must reject the contention that petitioner’s letterhead is actually misleading.”); Miller, 117 F.3d at 1382-83 (holding that state had not introduced evidence to show CPAs truthful information was in fact misleading). But see Zauderer, 471 U.S. at 652-53, 105 S.Ct. at 2282 (holding that where a contingency fee advertisement stated that “if there is no recovery, no legal fees are owed by our clients,” but did not make a distinction between “legal fees” and “costs,” state was not required to produce evidence where “the possibility of deception is as self-evident as it is in this case”). To the contrary, the district court went as far as to concede that it “is undoubtedly true that a typical consumer would think ‘skim milk’ is simply milk from which the cream has been skimmed.” Nevertheless, it maintained, the State produced a study in which consumers indicated they would “expect skim milk to include the same vitamin content as whole milk.” But this evidence about what consumers believe to be skim milk’s attributes does not make the Creamery’s representation that it is selling skim milk misleading; “[u]nfamiliarity is not synonymous with misinformation.” Mason, 208 F.3d at 957. The State’s study provides no evidence that consumers expected anything other than skim milk when they read those words on the Creamery’s bottles, the State’s alternative definition notwithstand-' ing. We are not bound by such a definition. See Abramson, 949 F.2d at 1576. The Creamery’s use of the words “skim milk” to describe its skim milk is not inherently misleading.

B. Intermediate Scrutiny

As the Creamery’s label does not concern unlawful activity and is not inherently misleading, the Creamery’s commercial speech merits First Amendment protection. Accordingly, the State’s speech restriction is subject to intermediate scrutiny under the remainder of the Central Hudson test.

As to the Erst prong, the State and the Creamery agree the State has a substantial interest in combating deception and in establishing nutritional standards for milk. We assume, without deciding, that such interests are valid under intermediate scrutiny. In addition, we do not address the second prong of Central Hudson, regarding whether the State has shown its restriction directly and materially advances its interests, because the measure is clearly more extensive than necessary to achieve its goals.

Indeed, the State has introduced no evidence at all on the third prong of Central Hudson. The record makes clear that numerous less burdensome alternatives existed and were discussed by the State and the Creamery during negotiations that would have involved additional disclosure without banning the term “skim milk.” See Abramson, 949 F.2d at 1577 (“[W]hen the first amendment is at issue, ‘the preferred remedy is more disclosure, rather than less.’ ” (quoting Bates v. State Bar of Ariz., 433 U.S. 350, 375, 97 S.Ct. 2691, 2704-2705, 53 L.Ed.2d 810 (1977))). There can be little question the State failed to show its remedy was “not more extensive than is necessary to serve [its] interest.” Central Hudson, 447 U.S. at 566, 100 S.Ct. at 2351.

It is true, as the State contends, that the final prong of Central Hudson does not require it to show its measure was the least restrictive means of achieving its goal. See Borgner, 284 F.3d at 1213 (“We do not require that the regulation at issue be the least restrictive means available to accomplish the state’s objective. Rather, we merely require ‘a fit between the legislature’s ends and the means chosen to accomplish those ends — a fit that is not necessarily perfect, but reasonable.’ ” (quoting Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 3035, 106 L.Ed.2d 388 (1989))). Nevertheless, the State was unable to show that forbidding the Creamery from using the term “skim milk” was reasonable, and not more extensive than necessary to serve its interest. It “disregard^] far less restrictive and more precise means” — for example, allowing skim milk to be called what it is and merely requiring a disclosure that it lacks vitamin A. Fox, 492 U.S. at 479, 109 S.Ct. at 3034 (quotation omitted). The State’s mandate was clearly more extensive than necessary to serve its interest in preventing deception and ensuring adequate nutritional standards.

IV. CONCLUSION

For the foregoing reasons, the State has not carried its burden and is not entitled to summary judgment with respect to its prohibition of the Creamery’s use of the term “skim milk.” We therefore VACATE the judgment and REMAND to the district court.

      . This case concerns only its intrastate sales' and no challenge is made to any federal action or regulation.

      .The Creamery offered the following labels: (1) "PASTEURIZED SKIM MILK, NO VITAMIN A ADDED;” (2) "PASTEURIZED SKIM MILK, NO LOST VITAMIN A REPLACED;” (3) "PASTEURIZED SKIM MILK, MOST VITAMIN A REMOVED BY SKIMMING CREAM FROM MILK;” (4) "NON-GRADE 'A' SKIM MILK, SOME MILK VITAMINS REDUCED BY SKIMMING CREAM FROM ALL-NATURAL PASTEURIZED MILK;” and (5) "THE STATE REQUIRES US TO CALL THIS: 'NON-GRADE "A” MILK PRODUCT, NATURAL MILK VITAMINS REMOVED.’ IT IS ALL-NATURAL SKIM MILK WITH SOME VITAMIN A REMOVED BY SKIMMING CREAM FROM MILK.”

      . The State proposed the following label, based on the Creamery’s earlier suggestion: "The State requires us to call this: ‘Non Grade "A” Milk Product, Natural Milk Vitamins Removed.’ All natural milk product with vitamins removed by separating cream from milk.” In the Creamery’s version, the second sentence used the term "skim milk” in place of "milk product.” The Creamery asserts in its initial brief that it would "happily use” a disclaimer stating that its skim milk does not have the same vitamins as whole milk. Brief of Appellant at 21-22 & n.16.

      . The Creamery also asserted the State unconstitutionally compelled the Creamery to use .a confusing and misleading label in violation of the First Amendment. The district court ruled the issue was not ripe. On appeal, however, the Creamery has only argued that the State has censored its use of the term "skim milk.” Although its statement of issues does mention the compelled speech claim, its brief does not argue the question. The only mention of purportedly compelled labels (the Creamery is unspecific as to which labels the State allegedly forced it to use) takes place in furtherance of the Creamery's argument that the State's ban on the use of “skim milk” fails the last two prongs of Central Hudson, discussed infra. To the extent it has actually asserted the compelled speech claim in this litigation, it has abandoned it by failing to argue it in its brief. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) ("[T]he law is by now well settled in this Circuit that a legal claim or argument that has not been briefed before the court is deemed abandoned and its merits will not be addressed.”).
      In addition, the Creamery and the State nearly agreed on a proposed label, the only difference being that the State would have forbidden the use of the term "skim milk.” See supra n.3. It is not clear a dispute over compelled speech would still exist, then, because there is no remaining disagreement about the label once we have determined whether the State may prohibit the Creamery from using the term "skim milk.”

      . Throughout the proceedings, the Creamery has litigated this case as an as-applied challenge, notwithstanding passing references to a facial challenge in its complaint. The Creamery appears to seek the narrowest as-applied relief available to it. See Am. Fed’n of State, Cty. & Mun. Emps. Council 79 v. Scott, 717 F.3d 851, 863 (11th Cir. 2013) (distinguishing as-applied and facial challenges). It does not specifically cite the offending Florida statutes or regulations, nor explain how the statutes themselves are invalid; rather, its arguments concern only the State's treatment of the Creamery. See Complaint for Declaratory and Injunctive Relief at ¶ 6 ("Plaintiff Creamery seeks declaratory and injunctive relief against Florida restrictions on ... the labeling of skim milk, as well as related actions taken by [the State]. These restrictions and requirements are found in Chapter 502, Florida Statutes, and Florida Administrative Code Chapter 5D-1.”); id. at ¶¶ 80, 91 (challenging "Florida law and the action of [the State]”); Brief of Appellant at 11 ("The relevant Florida statutes are located in Chapter 502 and are supplemented by Florida Administrative Code Section 5D-1.”); id. at 12 n.9 ("The meanings of these state statutes and state regulations are not in dispute, and the statutes and regulations themselves are long and complex. For a detailed explanation of the manner in which the numerous relevant state statutes and state regulations fit together, see [the Creamery's brief in support of its motion for summary judgment].”). The closest indication of which actual provisions of Florida law are at issue are found in the Creamery’s memorandum of law accompanying its motion for summary judgment. There, it references Fla. Stat. §§ 502.165 and 502.181, which are Florida’s imitation milk statute and general enforcement provisions, respectively. See Plaintiff’s Memorandum of Law in Support of Plaintiff’s Motion for Summary Judgment at 6-7, 11. No argument has been advanced as to how these statutes are unconstitutional; the Creamery only disputes the State’s refusal to allow it to use the term “skim milk.” Thus the only challenge is to the action of the State with respect to the Creamery in this case, and our decision is limited to that issue.

      . Commercial speech is "a narrow category of necessarily expressive communication that is related solely to the economic interests of the speaker and its audience ... or that does no more than propose a commercial transaction.” Dana’s R.R. Supply v. Att’y Gen., 807 F.3d 1235, 1246 (11th Cir. 2015) (quotations omitted). The parties agree the Creamery’s use of the term "skim milk” to describe its product is commercial speech.

      . There is some question as to whether under the Supreme Court’s decisions in Sorrell v. IMS Health Inc. and Reed v. Town of Gilbert an analysis to determine if the restriction is content based or speaker focused must precede any evaluation of the regulation based on traditional commercial speech jurisprudence, and if so, whether this would alter the Central Hudson framework. See Sorrell v. IMS Health Inc., 564 U.S. 552, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011); Reed v. Town of Gilbert, - U.S. -, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015). In Sorrell, the Supreme Court found the restriction at issue to be content based but nevertheless cited, articulated, and applied the Central Hudson test. See Sorrell, 564 U.S. at 572, 131 S.Ct. at 2667-68 ("To sustain the targeted, content-based burden § 4631(d) imposes on protected [commercial] expression, the State must show at least that the statute directly advances a substantial governmental interest and that the measure is drawn to achieve that interest.” (citing Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 480-81, 109 S.Ct. 3028, 3035, 106 L.Ed.2d 388 (1989); Central Hudson, 447 U.S. at 566, 100 S.Ct. at 2351)); accord Dana’s R.R. Supply, 807 F.3d at 1246 ("Content-based restrictions on certain categories of speech such as commercial and professional speech, though still protected under the First Amendment, are given more leeway because of the robustness of the speech and the greater need for regulatory flexibility in those areas.”). And in Reed, the Court arguably broadened the test for determining whether a law is content based. See Reed, 135 S.Ct. at 2227, 2230 (noting no exceptions in stating that laws that "singled out specific subject matter” are facially content based and thus subject to strict scrutiny); see also id. at 2236-39 (Kagan, J., concurring in the judgment) (warning that the majority’s approach glosses over exceptions in the Court’s case law regarding the content-based determination). This Court's recent decision in Wollschlaeger v. Governor of Florida underscores the uncer-tairity. 848 F.3d 1293 (11th Cir. 2017) (en banc). There, we determined that the regulations at issue were speaker focused and content based but ultimately applied intermediate scrutiny. Id. at 1306-09, 1311-17 (citing and applying the Central Hudson line of cases, though not citing Central Hudson itself). We need not wade into these troubled waters, however, because the State cannot survive Central Hudson scrutiny, and in any event the Creamery does not argue the State’s restriction was content based or speaker focused. Brief of Appellant at 27 n.19.

      . Central Hudson sometimes has been characterized as consisting of a four-prong test and other times as a three-prong test following a threshold question. Compare Fla. Bar v. Went For It, Inc., 515 U.S. 618, 624, 115 S.Ct. 2371, 2376, 132 L.Ed.2d 541 (1995) ("Commercial speech that falls into neither of those categories [misleading speech or speech concerning unlawful activity], like the advertising at issue here, may be regulated if the government satisfies a test consisting of three related prongs.... ”), and Harrell v. Fla. Bar, 608 F.3d 1241, 1269-70 (11th Cir. 2010), with City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 435, 113 S.Ct. 1505, 1519-20, 123 L.Ed.2d 99 (1993) (Blackmun, J., concurring) ("Under the analysis adopted by the Central Hudson majority, misleading and coercive commercial speech and commercial speech proposing illegal activities are addressed in the first prong of the four-part test.”), and Borgner v. Brooks, 284 F.3d 1204, 1210 (11th Cir. 2002). We think Central Hudson is best characterized as consisting of a threshold question and a three-prong test, and we adopt this terminology throughout this opinion. The threshold question is really a separate inquiry, for it examines the speech to determine whether it is protected at all, whereas the three-prong test scrutinizes the restriction to ascertain whether it survives the intermediate scrutiny afforded to protected commercial speech. But cf. Alexander v. Cahill, 598 F.3d 79, 88 n.5 (2d Cir. 2010) (recognizing the terminological split but adopting the four-part locution).

      . If an imitation milk permit were unavailable for skim milk, it would simply be illegal to sell the milk without replenishing the lost vitamin A, because without additives the skim milk is not Grade "A” and as such cannot be sold in Florida. See Fla. Stat. § 502.091 ("Only Grade 'A' pasteurized milk and milk products ... shall be sold at retail to the final consumer”); Plaintiff’s Response to Defendant's Motion for Summary Judgment at 2 ("Defendants state that the fact the Qreamery’s skim milk 'is not Grade "A” ’ is an undisputed material fact in this case. This fact is indeed undisputed....”).

      . If it were illegal to sell skim milk without additives at all, then restricting the use of the words "skim milk” would be legitimate with respect to non-complying milk because such branding would constitute speech incidental to unlawful conduct. See Went For It, 515 U.S. at 623-24, 115 S.Ct. at 2376; Pittsburgh Press, 413 U.S. at 389, 93 S.Ct. at 2561. To that end, an argument could be made that under Florida law, the Creamery is not entitled to an imitation milk permit for its skim milk. See Fla. Stat. § 502.012(13) (defining "milk products” to include skim milk); id. § 502.012(10) (defining “imitation milk and milk products” as expressly excluding items that qualify as "milk products”); id. § 502.165(3) (authorizing permits for imitation milk and milk products). If the Creamery could not sell its skim milk as imitation milk, there would be no way around Florida’s prohibition on the sale of non-Grade "A” skim milk. See id. § 502.091. The State could thus ban the Creamery’s use of the words "skim milk” on its illegal product.
      However, throughout this proceeding, the State has maintained both that the Creamery’s use of the term "skim milk” was speech incident to unlawful conduct and that the Creamery’s skim milk can be sold under the imitation milk statute. When questioned at oral argument whether an imitation milk permit is even issuable for a milk product such as skim milk, the State conceded it was something of "a square peg in a round hole,” but insisted a permit could be issued, refusing to adopt the above argument.

      . It should be noted that Florida law does not appear to require the State to prohibit the Creamery from using the term "skim milk;” if an imitation permit is sought, additional disclosure is all that is needed. See Fla. Stat. § 502.181 (“It is unlawful for any person in this state to ... [a]dvertise, package, label, sell, or offer for sale, or cause to be advertised, packaged, labeled, sold, or offered for sale, any imitation or substitute milk or milk product in a manner that is untrue, deceptive, or misleading and which could cause consumers to think they are purchasing a Grade A milk or milk product.”). This fact underscores that what we decide here is whether the action of the State in this case is constitutional. We make no determination here as to the constitutionality of any statute or regulation.

      . The State does not argue the Creamery's speech is false.

      . For example, the Creamery indicated it was amenable to a label that would have included the following disclaimer: "It [the milk] is all-natural skim milk with some vitamin A removed by skimming cream from milk.” See supra n.2.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WI-FI ONE, LLC, Appellant v. BROADCOM CORPORATION, Appellee
    2015-1944, -1945, -1946
    United States Court of Appeals, Federal Circuit.
    January 4, 2017
    Before PROST, Chief Judge, NEWMAN, LOURIE, DYK, MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN, HUGHES, and STOLL, Circuit Judges
   ORDER

PER CURIAM.

Appellant Wi-Fi One, LLC filed a petition for rehearing and rehearing en banc in all three appeals. A response was invited from the Appellee, Broadcom Corporation, to the three petitions. The petitions and responses were considered by the panel that heard the appeal, see Fed. Cir. R. 35 Practice Notes, and thereafter referred to the circuit judges in regular active service. A poll was requested and taken, and the court decided that the appeal warrants en banc consideration.

Upon consideration thereof,

It Is Ordered That:
(1) The petitions for rehearing en banc filed by Appellant Wi-Fi One, LLC are granted.
(2) The court’s opinions in Wi-Fi One, LLC v. Broadcom Corp., 837 F.3d 1329 (Fed. Cir. 2016), Wi-Fi One, LLC v. Broadcom Corp., 2016 WL 4933344 (Fed. Cir. Sept. 16, 2016), and Wi-Fi One, LLC v. Broadcom Corp., 2016 WL 4933418 (Fed. Cir. Sept. 16, 2016) are vacated, and the appeals are reinstated.
(3) The Appellant and Appellee are requested to file supplemental briefs. The briefs should address the following question:
Should this court overrule Achates Reference Publishing, Inc. v. Apple Inc., 803 F.3d 652 (Fed. Cir. 2015) and hold that judicial review is available for a patent owner to challenge the PTO’s determination that the petitioner satisfied the timeliness requirement of 35 U.S.C. § 315(b) governing the filing of petitions for inter partes review?
Briefing should be limited to this question.
(4) The supplemental en banc briefs and briefs of any amici curiae shall be electronically filed in the ECF system, and thirty paper copies of each brief shall be filed with the court. Two paper copies of all filings shall be served on opposing counsel. Briefs shall adhere to the type-volume limitations set forth in Federal Rule of Appellate Procedure 32 and Federal Circuit Rule 32.
(5) The supplemental brief of Appellant must be filed by Monday, February 13, 2017. Any amicus brief supporting Appellant’s position or supporting neither position must be filed by Thursday, February 23, 2017. Appellee’s supplemental brief must be filed by Wednesday, March 15, 2017. Any amicus brief supporting Appellee’s position must be filed by Monday, March 27, 2017. Appellant’s reply brief must be filed by Wednesday, March 29, 2017.
(6) The court invites the views of the United States Patent and Trademark Office as amicus curiae. Any other briefs of amicus curiae may be filed without consent and leave of court. All amicus briefs must comply with Federal Rule of Appellate Procedure 29 and Federal Circuit Rule 29. All amicus briefs shall be filed as stated above.
(7) The appeal will be heard en banc on the basis of the supplemental briefs ordered herein and oral argument.
(8) Oral argument will be scheduled at a later date.


author: SCHALL, Circuit Judge.

text:
    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. Par-rott 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” an'd 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. 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 “fulfilled] 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.Á. 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. Par-rott “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. At-tig’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 lav/ arising from appeals from decisions of the Veterans Court, but, ‘[except to the extent that an appeal ... presents a constitutional issue, [we] may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.’ ” Sneed v. McDonald, 819 F.3d 1347, 1350-51 (Fed. Cir. 2016) (quoting 38 U.S.C. § 7292(d)(1)-(2)). As noted, Ms. Parrott argues that, in its decision on her attorney fees application, the Veterans Court misinterpreted EAJA.

An argument that the Veterans Court misinterpreted a statute falls within our jurisdiction. See Cameron v. Shinseki, 721 F.3d 1365, 1368 (Fed. Cir. 2013) (holding that we have jurisdiction over the Veterans Court’s interpretation of statutes); Bowey v. West, 218 F.3d 1373, 1376 (Fed. Cir. 2000) (holding that the Veteran Court’s interpretation of EAJA presents a question of law within our jurisdiction). Because they present issues of law, we review questions of statutory interpretation from the Veterans Court de novo. Bowey, 218 F.3d at 1376 (“Statutory interpretation is a question of law, which we review without deference.”); see also Hudgens v. McDonald, 823 F.3d 630, 634 (Fed. Cir. 2016) (“We review statutory and regulatory interpretations of the Veterans Court de novo.” (quoting Johnson v. McDonald, 762 F.3d 1362, 1364 (Fed. Cir. 2014))).

II.

Ms. Parrott argues that the Veterans Court misconstrued EAJA by requiring her to calculate the cost of living adjustment to her attorney’s hourly rate using the local CPI approach. Appellant Opening Br. 5-14. According to Ms. Parrott, EAJA does not mandate a particular method for computing attorney fees, and the Veterans Court therefore erred by requiring a specific approach for every case. Id. at 13. Continuing, Ms. Parrott urges that there is ambiguity in EAJA because it does not specify the CPI approach to be used in calculating an attorney’s hourly rate. From there, she contends that, because ambiguity in a statute relating to veterans benefits is to be construed in favor of the veteran, she should be permitted to use the CPI approach yielding the highest return in fees. Id. at 16-17. In Ms. Parrott’s view, this “optimal yield” approach allows her to select the CPI of “the location of [her] attorney or the location of the Veterans Court.” Id. at 17. Here, Ms. Parrott contends that she is entitled to use the CPI for the location of the Veterans Court— Washington D.C. Id. at 3, 8, 25.

The Secretary responds that the Veterans Court complied with its precedent in Mannino. Appellee Response Br. 10-12. While acknowledging that courts have split in their use of the national CPI and the local CPI approaches, he urges that the “weight of authority” favors the local CPI approach. Id. at 13-14. In the Secretary’s view, the local CPI approach is more consistent with the plain language of EAJA because “prevailing market rates” and the “cost of living” are inherently local phenomena. Id. at 18-21. Moreover, he continues, the local CPI approach produces fairer outcomes because it accounts for the actual cost of living experienced by the EAJA applicant’s attorney. Id. at 21-24. The Secretary also resists Ms. Parrott’s optimal yield approach, arguing that EAJA is not a veterans benefits statute, but rather a statute of general application. He also argues that EAJA represents a waiver of sovereign immunity and thus should be strictly construed in the government’s favor. Id. at 24-28.

III.

A.

As in any statutory construction case, we begin with the plain language of the statute. See Sebelius v. Cloer, — U.S. -, 133 S.Ct. 1886, 1893, 185 L.Ed.2d 1003 (2013). EAJA reimburses prevailing parties in certain civil actions against the United States for “reasonable attorney fees.” 28 U.S.C. § 2412(d)(2)(A). Attorney fees must be “based upon prevailing market rates” and are statutorily capped at “$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) (emphases added).

In Mannino, the Veterans Court adopted the local CPI approach for calculating increases in hourly attorney rates above the EAJA cap. Mannino, 12 Vet.App. at 243. The court held that EAJA presumptively limits an attorney’s hourly rate to $125 and that any upward adjustment must be based on the local CPI “where the attorney works.” Id. The Veterans Court noted that there is a split of authority on this issue and that some district courts do use the national CPI approach. Id. at 243-44. The court determined, however, that using the local CPI approach is the “fairer course” because it better reflects the “cost-of-living increases actually experienced by the EAJA applicant.” Id. at 243 (internal alterations omitted) (quoting Cox Constr. Co. v. United States, 17 Cl.Ct. 29, 37 (1989)).

The question addressed in Mannino appears to be one of first impression in this court. In Chiu v. United States, 948 F.2d 711 (Fed. Cir. 1991), we reviewed a decision from the United States Claims Court that used local cost of living figures to calculate EAJA fees, but we took no position on the propriety of that approach. See 948 F.2d at 713 (accepting without comment the local Washington, D.C. cost of living), 719 (taking issue with the date of the Claims Court’s cost of living but not its location). Similarly, in Levemier, we reversed the Claims Court’s upward adjustment of EAJA fees where market rates were below the statutory cap, but we did not address whether the local or the national CPI should apply where market rates were above the cap. 947 F.2d at 503-04. Finally, in Doty v. United States, 71 F.3d 384 (Fed. Cir. 1995), we awarded EAJA fees based upon an hourly rate above the statutory cap, but in that case the government did not contest the manner of calculating attorney fees, and we thus had no occasion to rule on the question before us now. 71 F.3d at 387. None of these cases provides controlling guidance on the proper CPI approach under EAJA.

After considering the statutory text and the relevant eases, we think the local CPI approach, where a local CPI is available, see Mannino, 12 Vet.App. at 243, is more consistent with EAJA than the national approach. We therefore hold that the Veterans Court did not err in ruling that the local CPI approach represented the correct method of calculating the adjustment in Ms. Parrott’s attorney’s hourly rate.

The local CPI approach gives the most effect to the statutory text. EAJA expressly defines recoverable attorney fees in terms of “prevailing market rates for the kind and quality of the services furnished” and states in relevant part 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). These two factors — market rates and the cost of living — strike us as being inherently local in nature. We thus believe that using the market rate and the cost of living actually experienced by an EAJA applicant's attorney is most consistent with EAJA’s plain language. Mannino, 12 Vet.App. at 243; Cox, 17 Cl.Ct. at 37. Indeed, the Supreme Court, under a different fee-shifting statute, expressed “reasonable” attorney fees in terms of “prevailing market rates in the relevant community.” Blum, 465 U.S. at 895 & n.11, 104 S.Ct. 1541 (emphasis added) (interpreting the attorney fees provision for civil rights actions under 42 U.S.C. § 1988).

The local CPI approach also better fulfills the purposes underpinning EAJA. Congress passed EAJA to (1) ensure adequate representation for those needing to vindicate their rights against the government and (2) minimize the cost of this redress to taxpayers. Baker v. Bowen, 839 F.2d 1075, 1083 (5th Cir. 1988); see also EAJA, Pub. L. No. 96-481, § 202, 94 Stat. 2325 (1980) (describing EAJA’s purposes); Kelly v. Nicholson, 463 F.3d 1349, 1353 (Fed. Cir. 2006). The local CPI approach advances both of these goals. It assists litigants with meritorious claims in securing suitable counsel, whose costs may exceed national rates. Undercompensating such applicants would deter them from bringing lawful claims against the government, thereby frustrating EAJA’s stated intent. See, e.g., Payne v. Sullivan, 977 F.2d 900, 903 (4th Cir. 1992) (finding that insufficiently compensating EAJA applicants “underminefe] the purpose of EAJA to remove the financial disincentive to challenge wrongful government action” (quoting Animal Lovers Volunteer Ass’n, Inc. v. Carlucci, 867 F.2d 1224, 1227 (9th Cir. 1989))); Meyer v. Sullivan, 958 F.2d 1029, 1034 (11th Cir. 1992); Hamblen, 14 F.Supp.3d at 809. Similarly, the local CPI approach reduces taxpayer' exposure by preventing windfalls to attorneys whose costs of living lie below the national average. Hamblen, 14 F.Supp.3d at 809; Mannino, 12 Vet.App. at 243.

The national CPI approach provides none of the above benefits. Under that approach, attorneys whose costs of living dip below the national CPI receive a windfall, encumbering the public with fees unneeded to represent the applicant. At the same time, attorneys whose costs of living surpass the national CPI are not reimbursed for their true fees, discouraging the representation EAJA seeks to secure.

Using local CPI figures is also consistent with our holding in Levemier. In that case, we refused to grant a cost of living increase to an attorney whose market rate fell short of the statutory cap. Levernier, 947 F.2d at 503-04. Because an attorney’s rate is partially a function of his or her cost of living (among other things), Levernier suggests that local price conditions can serve as the ultimate barometer of an EAJA award. Other circuits have reached similar conclusions, limiting for EAJA purposes hourly rates to those in the relevant community or the attorney’s personal rate. See, e.g., Sprinkle, 777 F.3d at 428 & n.2 (limiting rates to those “in fine with those prevailing in the community for similar services”); Bryant v. Comm’r of Soc. Sec., 518 F.3d 443, 450 (6th Cir. 2009); Johnson v. Sullivan, 919 F.2d 503, 505 (8th Cir. 1990) (“[E]videnee that the petitioner’s counsel ordinarily charges a fee of no greater than [the statutory rate] would preclude a cost-of-living increase above that amount.”); Clark v. Comm’r of Soc. Sec., 664 Fed.Appx. 525, 529 (6th Cir. 2016) (unpublished) (limiting cost of living increases to the “prevailing rates in the community”).

B.

Based upon the foregoing, we see no error in the Veterans Court’s use of the local CPI approach. Ms. Parrott acknowledges that her attorney worked in — and maintained — distinct offices in San Francisco, Dallas, and Little Rock. The Veterans Court therefore properly concluded that her EAJA application should have apportioned Mr. Attig’s time to those locations and used the CPI for each locality. Parrott, 2015 WL 5948165, at *4.

C.

As noted, Ms. Parrott also contends that an EAJA applicant in the Veterans Court may select whatever CPI approach yields the most favorable hourly rate for his or her attorney. We do not agree. To begin with, nothing in the statute suggests that an applicant is permitted to claim “the highest fee” or “the maximal cost of living increase.” In fact, the statute instructs the opposite. It limits fee awards to a prescribed cap and requires applicants to justify requests for higher sums. See, e.g., Johnson v. Sullivan, 919 F.2d at 504-05; Baker, 839 F.2d at 1084. EAJA also mandates that attorney fees be tethered to “prevailing market rates,” further grounding them in an objective, identifiable standard, distinct from Ms. Parrott’s “optimal yield” approach. 28 U.S.C. § 2412(d)(2)(A); see also Clark, 664 Fed.Appx. at 529 (explaining that EAJA cases do not “stand for the proposition that a district court must award the maximum amount possible once the statutory cap is increased”). Permitting EAJA applicants in the Veterans Court to use whatever method maximized their return would unmoor the calculated fees from “prevailing market rates” and “the cost of living” experienced by the applicant or the applicant’s attorney. This runs afoul of the statutory text and EAJA’s prohibition against windfalls. See Hyatt, 315 F.3d at 254 (“EAJA should not produce windfalls to attorneys.” (internal quotation-marks omitted) (quoting Hensley v. Eckerhart, 461 U.S. 424, 430 n.4, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983))); see also Sprinkle, 777 F.3d at 429 (limiting upward adjustments to rates “in the community for comparable legal services”); Levernier, 947 F.2d at 503-04 (preventing upward adjustments when attorneys’ billable rates were below the statutory cap).

In urging her optimal yield approach, Ms. Parrott relies on the doctrine that interpretive doubt in the context of a veterans benefits statute is to be construed in favor of the veteran. See Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994); Nielson v. Shinseki, 607 F.3d 802, 808 (Fed. Cir. 2010); Nat'l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, 260 F.3d 1365, 1378 (Fed. Cir. 2001). There are two problems with this argument, however. First, as the discussion in III.A above makes clear, we do not see ambiguity in the provisions of EAJA at issue in this case. Second, and just as importantly, the canon of statutory interpretation upon which Ms. Parrott relies does not apply here. EAJA is not a veterans benefit statute. It is a statute of general applicability. EAJA applies to any “prevailing party ... in any [nontort] civil action” brought by or against the United States, regardless of the underlying cause of action. 28 U.S.C. § 2412(d)(1)(A); see also Gregory C. Sisk, The Essentials of the Equal Access to Justice Act: Court Awards of Attorney Fees for Unreasonable Government Conduct (Part One), 55 La. L. Rev. 217, 229-30 (1994) (discussing EAJA’s “unparalleled” breadth due to its general application). EAJA allows claimants to recover fees in all sorts of nonveterans cases. See, e.g., Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993) (Social Security disability benefits); Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) (low-income housing litigation against the Department of Housing and Urban Development); Sakhawati v. Lynch, 839 F.3d 476 (6th Cir. 2016) (appeal from a decision by the Board of Immigration Appeals); Roberts v. Nat’l Transp. Safety Bd., 776 F.3d 918 (D.C. Cir. 2015) (employment actions undertaken by the FAA and NTSB).

Finally, the cases which Ms. Parrott cites are not on point. In each case on which she relies, the statute at issue was unquestionably directed to veterans benefits and was not a law of general application governing the public at large. See Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 431, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) (involving notices of appeal for veterans disability claims under 38 U.S.C. § 7266); King v. St. Vincent’s Hosp., 502 U.S. 215, 216, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991) (Veterans’ Reemployment Rights Act, then codified at 38 U.S.C. §§ 2021-26); Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 278, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946) (Selective Training and Service Act of 1940); Frederick v. Shinseki, 684 F.3d 1263, 1265 (Fed. Cir. 2012) (Veterans Benefits Act of 2003). Ms. Parrott cites no case — and we have not found one — standing for the proposition that a generally applicable law should be construed in a litigant’s favor merely because that litigant is a veteran. Accordingly, we reject Ms. Parrott’s invitation to interpret EAJA as permitting a veteran to use the CPI method yielding the highest return in attorney fees.

IV.

A.

As seen, the Veterans Court determined that Ms. Parrott had failed to show the reasonableness of her requested fee because her application omitted the CPIs and hourly allotments for each locale where her attorney worked on her case. Parrott, 2015 WL 5948165, at *4. The court therefore awarded Ms. Parrott the statutory rate of $125 per hour. Id.

Ms. Parrott challenges the court’s decision as an abuse of discretion. Appellant Opening Br. 21-22. According to Ms. Parrott, the Veterans Gourt was “required to afford [her] attorney the opportunity to amend her fee application” to comply with the court’s CPI ruling. Id. at 23-24.

The Secretary argues that we lack jurisdiction to review this aspect of the Veterans Court’s decision. Appellee Response Br. 28-29. Alternatively, he contends, the Veterans Court did not abuse its discretion in awarding Ms. Parrott the statutory rate because Ms. Parrott failed to establish the reasonableness of her requested fee. Id. at 30-35. In the Secretary’s view, nothing required the Veterans Court to allow Ms. Parrott to amend her EAJA submission. Id. at 36-37.

B.

As already stated, our jurisdiction over veterans cases is limited. Again, except to the extent an appeal presents a constitutional or legal issue, we may not review “(A) a challenge to a factual determination or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2); see also Wagner v. Shinseki, 733 F.3d 1343, 1349 (Fed. Cir. 2013) (holding that we lack jurisdiction to review the Veterans Court’s determination on the reasonableness of an EAJA fee award when the court applies the correct legal standard).

As noted, Ms. Parrott asks us to find that the Veterans Court abused its discretion by not permitting her to resubmit an amended EAJA application. But contrary to the assumption implicit in this argument, we do not have freestanding authority to review all discretionary actions taken by the Veterans Court. Instead, our jurisdiction attaches when the Veterans Court commits an abuse of discretion rising to the level' of legal error. 38 U.S.C. § 7292(d)(1); see also Dixon v. Shinseki, 741 F.3d 1367, 1373-74 (Fed. Cir. 2014) (ruling that the Veterans Court abuses its discretion when it misapplies controlling legal standards — a question of law); Cook v. Principi, 353 F.3d 937, 940 (Fed. Cir. 2003) (finding that we have no jurisdiction to review abuses of discretion on factual matters); Forshey v. Principi, 284 F.3d 1335, 1351 (Fed. Cir. 2002) (en banc) (setting forth our jurisdiction in terms of legal questions); Maggitt v. West, 202 F.3d 1370, 1374 (Fed. Cir. 2000) (stating that the Veterans Court abuses its discretion when it misconstrues its own jurisdiction, a legal issue).

Here, the Veterans Court did not interpret any law or regulation in declining to give Ms. Parrott the opportunity to resubmit a corrected EAJA application. It simply found that she had failed to demonstrate the reasonableness of the fee and used its broad discretion to calculate one for her. Pierce, 487 U.S. at 571, 108 S.Ct. 2541 (stating that courts have the discretion to calculate the amount of EAJA fees). This is a factual matter that we are not empowered to review. 38 U.S.C. § 7292(d)(2); Cook, 353 F.3d at 940; Wagner, 733 F.3d at 1349.

Nor' has Ms. Parrott shown how the decision of the Veterans Court amounted to legal error. It is undisputed that Ms. Parrott’s application was facially deficient under the correct standard. The Veterans Court therefore never had the information it needed to compute her fee under the appropriate approach. We know of no controlling authority, statute, regulation, or rule that requires a court to sua sponte request and accept amended EAJA applications, after judgment, on facts similar to those in this case. Accordingly, we see no legal error in the Veteran Court’s ruling.

Conclusion

For the reasons stated above, we hold that the Veterans Court did not err in ruling that the local CPI approach represented the correct method of calculating the adjustment in Ms. Parrott’s attorney’s hourly rate. We also hold that we lack jurisdiction to review the court’s decision not to allow Ms. Parrott to amend her EAJA application. The decision of the Veterans Court is therefore affirmed.

AFFIRMED

Costs

Each party shall bear its own costs.

      . Calculating an attorney's hourly rate usually involves identifying a single, representative date on which the attorney’s services were rendered — often called the “midpoint” date — • and then using the midpoint date to determine the cost of living adjustment. See Chiu v. United States, 948 F.2d 711, 722 n.10 (Fed. Cir. 1991); see also Elcyzyn v. Brown, 7 Vet.App. 170, 181 (1994). Before the Veterans Court, Ms. Parrott agreed to modify the midpoint date of her CPI calculation from January 2015 to May 2015, thereby reducing the hourly rate requested for her attorney to $190.19. Parrott, 2015 WL 5948165, at *1 n.1 (citing J.A. 61 n.2). In her appeal, Ms. Parrott seeks the original hourly rate of $191.69. See Appellant Opening Br. 19; Appellant Reply Br. 3.

      . Ms. Parrott takes the position that, when applied to litigation in the Veterans Court, EAJA becomes a veterans benefits statute. Oral Argument at 4:18-4:43 (No. 16-1450),-available at http://oralarguments.cafc. uscourts.gov/default.aspx?fl=2016-1450.mp3.

      . As noted, Ms. Parrott’s attorney maintains an office in San Francisco and worked on her case there. Parrott, 2015 WL 5948165, at *2 n.3. San Francisco has a higher CPI than Washington, D.C. See Appellant Opening Br. 19-20; Appellant Reply Br. 4. Ms. Parrott’s argument ostensibly would allow her to use San Francisco’s CPI to calculate her attorney’s hourly rate, but she does not urge that approach.
      In addition, on appeal, Ms. Parrott does not challenge the reduction of billable hours from 37.4 (as claimed in her EAJA application) to 32 (as allowed by the Veterans Court). J.A. 6-7, 26. The award of $50 in filing fees also is not in dispute.

      . Neither has the issue been addressed in our Vaccine Act cases, as the Vaccine Act implements a fee-shifting statute textually different from EAJA. In Avera v. Secretary of HHS, 515 F.3d 1343 (Fed. Cir. 2008), for example, we explained how the “forum rate” — the rate of the location where the court sits — serves as the "lodestar” in attorney fees calculations under the Vaccine Act. 515 F.3d at 1349. The Vaccine Act, however, provides compensation only for “reasonable attorneys’ fees.” 42 U.S.C. § 300aa-15(e)(1). Unlike EAJA, the Vaccine Act does not include a statutory cap or grant upward adjustments based on "the cost of living.” 28 U.S.C. § 2412(d)(2)(A). Thus, Avera does not instruct us how to augment a statutory rate cap with an express "cost of living” modifier.

        Avera ultimately used an exception to the forum rule from Davis Co. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. ERA, 169 F.3d 755, 758 (D.C. Cir. 1999), to apply a lower local CPI rate. Avera, 515 F.3d at 1349-50. This exception applies when the bulk of an attorney’s work occurs outside the forum and there is a significant difference in attorney compensation between the forum and the location of the work. Davis, 169 F.3d at 759-60. The purpose of the exception is to prevent windfalls to attorneys — the same consideration undergirding EAJA generally and, as seen below, the local CPI approach in particular. See Hyatt v. Barnhart, 315 F.3d 239, 254 (4th Cir. 2002); Hamblen v. Colvin, 14 F.Supp.3d 801, 809 (N.D. Tex. 2014).

      . Ms. Parrott suggests in passing that calculating hourly rate adjustments using the CPI is unduly restrictive. We do not agree. The CPI is an objective, readily-available, quantitative index measuring the costs impacting a consumer. See Black’s Law Dictionary 359 (9th ed. 2009) (equating the "consumer price index" with a "cost-of-living index”). This factor — costs impacting a consumer — is the very one EAJA seeks to account for in its "cost of living” modifier. See, e.g., Sullivan v. Sullivan, 958 F.2d 574, 576-77 & n.6 (4th Cir. 1992). We therefore agree with courts which have held that the Consumer Price Index for all items appropriately tracks “the cost of living” under EAJA. See, e.g., Sprinkle, 777 F.3d at 427-28 (“Courts should generally award the inflation-adjusted rate according to the CPI.”).

      . Ms. Parrott at times frames this issue as whether the Veterans Court acted ultra vires, but her arguments essentially focus on whether the court abused its discretion, not on whether the court acted beyond its power. Appellant Opening Br. 22.