Ravin v. Wilkie
Citation | 956 F.3d 1346 |
Decision Date | 20 April 2020 |
Docket Number | 2019-1532 |
Parties | Sean A. RAVIN, Claimant-Appellant v. Robert WILKIE, Secretary of Veterans Affairs, Respondent-Appellee |
Court | United States Courts of Appeals. United States Court of Appeals for the Federal Circuit |
Kenneth M. Carpenter, Law Offices of Carpenter Chartered, Topeka, KS, argued for claimant-appellant.
Eric Peter Bruskin, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Joseph H. Hunt, Claudia Burke, Robert Edward Kirschman, Jr. ; Christa A. Shriber, Jonathan Krisch, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
Before Lourie, Chen, and Stoll, Circuit Judges.
The Department of Veteran Affairs (VA) Regional Office in Muskogee, Oklahoma (RO) denied an attorney’s request that the RO withhold his attorney’s fees from an award of a veteran’s past-due benefits, pursuant to a direct-pay fee agreement with the veteran, and pay those fees directly to the attorney under 38 U.S.C. § 5904(d). By statute, an attorney "represent[ing] a person before [VA]" must "file a copy of any fee agreement" with VA "pursuant to regulations prescribed by the Secretary." 38 U.S.C. § 5904(c)(2). One such regulation is 38 C.F.R. § 14.636(h)(4), which requires the attorney to file "a copy of the [direct-pay] fee agreement" with "the agency of original jurisdiction" (the relevant RO) "within 30 days of the date of execution of the agreement." Because the attorney did not comply with that regulatory filing requirement, the Court of Appeals for Veterans Claims (Veterans Court) held that VA was not obligated to withhold the attorney’s fees from the veteran’s past-due benefits and pay those fees directly to the attorney. Ravin v. Wilkie , 30 Vet. App. 310, 316 (2018). For the reasons explained below, we affirm .
The appellant, attorney Sean A. Ravin, represented veteran Norman E. Cook before VA as to Mr. Cook’s claim for past-due disability benefits. On December 1, 2009, Mr. Ravin and Mr. Cook entered into an attorney fee agreement entitling Mr. Ravin to "a contingent fee equal to twenty percent (20%) of past-due benefits awarded due to or flowing from" his representation of Mr. Cook. The fee agreement further contemplated that VA would withhold the contingent fee amount from any past-due benefits awarded and pay that amount directly to Mr. Ravin. J.A. 46 (); see 38 U.S.C. § 5904(d)(3) ( ); 38 C.F.R. § 14.636(g)(2) (). Within a few days of executing the direct-pay fee agreement, Mr. Ravin sent a copy of the fee agreement to the Board of Veterans’ Appeals (Board), where it was date stamped as received on December 11, 2009. No copy of that fee agreement, however, was submitted to the RO "within 30 days of the date of execution of the agreement," as required by 38 C.F.R. § 14.636(h)(4).1
Mr. Cook received a favorable ruling from the Board on his claim in March 2010, and the RO implemented that decision by awarding past-due benefits to Mr. Cook in April 2010. On April 13, 2010, the Attorney Fee Coordinator at the RO searched for any attorney fee agreement on file but did not find one. As a result, the Attorney Fee Coordinator determined that "no attorney fee decision is required" and "[a]ll retroactive benefits may be paid directly to the veteran." J.A. 67. Subsequently, on April 19, 2010, the RO paid the full amount of past-due benefits to Mr. Cook. J.A. 80–81.
On April 27, 2010, Mr. Ravin mailed a copy of his direct-pay fee agreement with Mr. Cook to the RO and requested direct payment of his attorney’s fees from Mr. Cook’s past-due benefits. J.A. 72–79. The RO subsequently informed Mr. Ravin that it had not withheld his attorney’s fees from Mr. Cook’s past-due benefits payment and that it thus would not directly pay those fees to Mr. Ravin. The RO explained that Mr. Ravin’s direct-pay fee agreement was "not timely filed" in accordance with 38 C.F.R. § 14.636(h)(4) because Mr. Cook had failed to file a copy of the fee agreement with the RO within 30 days of its execution. J.A. 80–82.
Mr. Ravin filed a Notice of Disagreement with the RO’s decision, and the Board denied his claim for payment of attorney’s fees by VA. After a long procedural history, the Veterans Court issued the decision now on appeal to this court, in which the Veterans Court affirmed the Board’s denial of Mr. Ravin’s claim.
We have jurisdiction to review challenges to Veterans Court decisions regarding the interpretation or validity of a statute or regulation. 38 U.S.C. § 7292(c). In conducting that review, we must "decide all relevant questions of law." 38 U.S.C. § 7292(d)(1). "[S]tatutory interpretations by the Veterans Court are reviewed de novo" by this court. Cook v. Principi , 353 F.3d 937, 938 (Fed. Cir. 2003). "Interpretations of regulations ... may only be set aside if they are: ‘(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without observance of procedure required by law.’ " Id. (quoting 38 U.S.C. § 7292(d)(1) ). At issue here is the interpretation of 38 U.S.C. § 5904(d) and 38 C.F.R. § 14.636(g)(3) and (h)(4).
Section 5904 establishes the framework for attorneys to represent benefits claimants at VA on a contingent-fee basis. It provides, among other things, that the parties may agree that the contingent fee "is to be paid to the agent or attorney by the Secretary directly from any past-due benefits awarded on the basis of the claim." 38 U.S.C. § 5904(d) ( ). The statute then provides that, when there is such a direct-pay fee agreement, "[t]o the extent that past-due benefits are awarded in any proceeding ... the Secretary may direct that payment of any fee to an agent or attorney ... be made out of such past-due benefits." 38 U.S.C. § 5904(d)(3) (emphasis added).
Further, § 5904(c)(2) provides that an attorney who "represents a person before the Department [of Veteran Affairs] ... shall file a copy of any fee agreement between them with the Secretary pursuant to regulations prescribed by the Secretary ." 38 U.S.C. § 5904(c)(2) (emphases added). As relevant here, the "regulations prescribed by the Secretary" are 38 C.F.R. § 14.636(g)(3) and (h)(4), which set forth the 30-day filing requirement. Sections 14.636(g)(3) and (h)(4) require attorneys to file direct-pay fee agreements with the VA’s "Office of the General Counsel" and "the agency of original jurisdiction within 30 days of the date of execution of the agreement." The "agency of original jurisdiction" in this case is the Muskogee RO. See 38 C.F.R. § 14.627(b) ( ).
Mr. Ravin concedes that he did not comply with the regulatory requirements relating to filing his direct-pay fee agreement with VA. His main contention in this appeal is that 38 U.S.C. § 5094(d)(3) mandates VA to withhold and directly pay attorney’s fees from a past-due benefits award when there is an otherwise valid direct-pay fee agreement, and that the Veterans Court misinterpreted 38 C.F.R. § 14.636(g)(3) and (h)(4) to override the statutory mandate of § 5094(d)(3). Appellant’s Br. at 7–8. The problem for Mr. Ravin is that no such mandate exists in the statute.
As in any case of statutory construction, our analysis begins with the language of the statute. Estate of Cowart v. Nicklos Drilling Co. , 505 U.S. 469, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992). Section 5904(d)(3) provides that "[t]o the extent that past-due benefits are awarded ... the Secretary may direct that payment of any fee to an agent or attorney under a fee arrangement." 38 U.S.C. § 5094(d)(3) (emphasis added). We agree with the Veterans Court that the plain language of § 5904(d)(3) cannot be read as mandatory. The fact that § 5904(d)(3) uses the term "may" means the statute should not be read as mandatory. See Andersen Consulting v. United States , 959 F.2d 929, 932 (Fed. Cir. 1992) ().
Where the statutory language provides a clear answer, the analysis ends there. Hughes Aircraft Co. v. Jacobson , 525 U.S. 432, 438, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999). "Beyond the statute’s text, [the ‘traditional tools of statutory construction’] include the statute’s structure, canons of statutory construction, and legislative history." Timex V.I. v. United States , 157 F.3d 879, 882 (Fed. Cir. 1998). Here, since the language of § 5904(d)(3) is clear on whether its directive is mandatory or permissive, it is not necessary for us to go beyond the statutory language. Mr. Ravin’s reliance on Snyder v. Principi , 15 Vet. App. 285 (2001) is of no help, because the Veterans Court in that case held that direct payment is mandatory "if the statutory and regulatory requirements are met." Id . at 291.
Moreover, we reject Mr. Ravin’s assertion that the 30-day filing requirement of 38 C.F.R. § 14.636(g)(3) and (h)(4) is unenforceable. The Secretary "has authority to prescribe all rules and regulations which are necessary or appropriate to carry out" Congress’s...
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