Ravin v. Wilkie, 16-2057

CourtCourt of Appeals for Veteran Claims
Decision Date20 March 2019
Docket Number16-2057
PartiesSean A. Ravin, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

Sean A. Ravin, Appellant,

Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

No. 16-2057

United States Court of Appeals For Veterans Claims

March 20, 2019

Argued September 27, 2018

On Appeal from the Board of Veterans' Appeals

Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.

James R. Drysdale, with whom James M. Byrne, General Counsel; Mary Ann Flynn, Chief Counsel; and Richard A. Daley, Deputy Chief Counsel, were on the brief, all of Washington, D.C., for the appellee.

Thomas E. Andrews, III, of Columbia, South Carolina, for National Organization of Veterans Advocates, Inc. (NOVA) as amicus curiae.


TOTH, Judge

An attorney representing a VA benefits claimant may charge a fee contingent on an award of past-due benefits. An attorney may also seek fees under the Equal Access to Justice Act (EAJA) for successful representation before this Court. Federal law requires an attorney receiving both contingency and EAJA fees to refund to the claimant the smaller of the two awards if they are received for the "same work." We conclude that representation before VA and representation before this Court are not the same work for purposes of this refund requirement. Thus, EAJA fees awarded by this Court need not be offset against contingency fees based on past-due benefits that result from a decision by VA.

Although we reached the opposite conclusion in Carpenter v. Principi, 15 Vet.App. 64 (2001) (en banc), that decision cannot be sustained, as many of its central premises falter under closer scrutiny. Rather than engaging in a textual analysis of the relevant statutory language, the Court employed an interpretive methodology in a novel way that cannot square with EAJA. The policy judgments on which the Court grounded its decision appear less than certain in the light of two decades of experience. There are good reasons to believe that Carpenter's rule has unnecessarily complicated the relationship between VA claimants and their attorneys. And, it has not, to the best of our knowledge, encouraged any reliance interests that might overcome these problems. Thus, to the extent that it is inconsistent with today's decision, Carpenter is overruled.


Before recounting the specific facts of the present case, we provide a brief overview of the statutory provisions that govern compensation for the representatives of VA claimants.


Under 38 U.S.C. § 5904, an attorney or other authorized agent representing a claimant (for the sake of simplicity we'll refer to attorneys for the remainder of this opinion) in proceedings before VA may charge a fee for services subject to certain limitations. Services for which a fee is charged cannot precede the date on which the Notice of Disagreement is filed in the case.[2]38 U.S.C. § 5904(c)(1). Attorneys must file a copy of any fee agreement for such services with the Secretary, who may reduce the fee if it is unreasonable or excessive. 38 U.S.C. § 5904(c)(2), (3)(A). Also, an attorney representing a claimant in this Court must file with the Court a copy of any fee agreement between them. 38 U.S.C. § 7263(c). The Court can independently review that agreement-or a Board decision regarding an agreement filed with the Secretary-and "may order a reduction in the fee called for in the agreement if it finds that the fee is excessive or unreasonable." 38 U.S.C. § 7263(c), (d).

A fee "may be based on a fixed fee, hourly rate, a percentage of benefits recovered, or a combination of such bases." 38 C.F.R. § 14.636(e) (2018). One of the most prevalent arrangements is a contingency agreement that permits the Secretary to pay a fee capped at 20% of "the total amount of any past-due benefits awarded on the basis of the claim" directly to the attorney out of a claimant's past-due benefits award. 38 U.S.C. § 5904(d)(1)-(2). This applies to past-due benefits awarded based on proceedings before VA or before this Court. 38 U.S.C. § 5904(d)(3).

Not long after this Court was established, Congress authorized another method of compensating attorneys by allowing litigants before the Court to seek EAJA awards. Federal Courts Administration Act of 1992 (FCAA), Pub. L. No. 102-572, § 506(a), 106 Stat. 4506, 4513. EAJA's purpose is to ensure that those trying to vindicate their rights against wrongful government action can obtain adequate representation. Parrott v. Shulkin, 851 F.3d 1242, 1249 (Fed. Cir. 2017). To achieve this goal, EAJA gives a court the authority to award a prevailing party in a lawsuit against the United States reasonable representation costs when the government's position was not substantially justified. 28 U.S.C. § 2412(d)(1)(A). But in making EAJA available to VA claimants in this Court, Congress included the following offset provision:

Section 5904(d) of title 38, United States Code, shall not prevent an award of fees and other expenses under section 2412(d) of title 28, United States Code. Section 5904(d) of title 38, United States Code, shall not apply with respect to any such award but only if, where the claimant's attorney receives fees for the same work under both section 5904 of title 38, United States Code, and section 2412(d) of title 28, United States Code, the claimant's attorney refunds to the claimant the amount of the smaller fee

§ 506(c), 106 Stat. at 4513.[3] We'll refer to this statutory language as section 506(c) or the EAJA offset provision.


Attorney Sean A. Ravin began representing veteran Ira L. Easterling after the Board issued a 2009 decision denying entitlement to a total disability rating based on individual unemployability (TDIU). He entered his appearance in this Court and filed a copy of a pro bono representation agreement signed by both client and attorney. The contract specified that it covered "only" representation before the Court, that the veteran would not be charged, and that Mr. Ravin would seek compensation for fees and expenses under EAJA. By signing, Mr. Easterling also accepted that any EAJA award would be paid by VA, "separate and apart from any recovery to which I am entitled as a result of my claim and that such award will not affect the amount of any recovery to which I may be entitled." R. at 279.

In May 2011, the Court vacated the Board decision for inadequate reasons or bases and remanded the matter. One week later, attorney and client signed a new agreement regarding representation before VA. In this contract, Mr. Easterling agreed to pay Mr. Ravin a contingent fee of 20% of any past-due benefits awarded by the Secretary and authorized VA to withhold any such amount and make direct payment to Mr. Ravin. The agreement also contained a clause in which Mr. Easterling acknowledged that representation before VA would not be considered the "same work" as the prior representation before this Court and that no potential offset against EAJA fees would be required unless this Court ordered the award of past-due benefits. R. at 209-12. Meanwhile, Mr. Ravin sought on the veteran's behalf a $5, 787 EAJA award, which the Court granted.

In December 2011, the Board determined that the evidence of record was in equipoise and granted TDIU. The following month, the VA regional office (RO) assigned a 2006 effective date resulting in a past-due benefits award of $115, 632. VA informed Mr. Ravin that he would be paid $17, 239.40, which was equal to 20% of the past-due benefits ($23, 126.40) less $5, 787 to offset the EAJA fees previously awarded and a $100 administrative fee charged by VA. R. at 195-97.

Mr. Ravin challenged the EAJA offset, but the Board concluded that it was mandated by Carpenter. The Board sent copies of its decision to both Mr. Ravin and Mr. Easterling. This appeal followed.

The case was referred to a panel to resolve Mr. Ravin's argument that congressional action had abrogated Carpenter. We permitted two interested amici curiae to file briefs and participate in oral argument. Together, Mr. Ravin and his supporting amici argued that 2006 amendments to section 5904 had effectively nullified Carpenter. Alternatively, they argued that Carpenter should be overruled. The panel sua sponte requested a vote on whether the full Court should consider that latter argument, and a majority of the Court voted for en banc consideration. The parties and one amicus were permitted to submit supplemental memoranda of law on the question and new oral argument was held.[4]


Mr. Ravin and the supporting amicus contend that the meaning of the phrase "same work" in the EAJA offset provision is plain and only obliges an attorney to refund the smaller of section 5904 and EAJA fees when section 5904 fees are awarded by the Court-that is, when a decision of the Court leads directly to the award of past-due benefits-rather than by VA after a remand from the Court. This conclusion, they reason, is buttressed by the fact that this is the rule in the Social Security context. Finally, they contend that Carpenter, which reached a different interpretation of section 506(c), should be overruled owing to its questionable analysis and deleterious effects. The Secretary does not mount heavy opposition to the appellant's statutory-analysis arguments but contends that Mr. Ravin hasn't offered persuasive reasons for overruling Carpenter.


Statutory analysis always begins with the language of the statute itself. O'Brien v. Wilkie, 30 Vet.App. 21, 25 (2018). The EAJA offset provision mandates that an attorney refund to the client the smaller of an EAJA fee and a section 5904 fee if they are received for the "same work." § 506(c), 106 Stat. at 4513. It's a basic canon of statutory construction that words generally take "their ordinary, contemporary, common meaning," which may be derived from dictionaries from the era of the statutory...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT