1 F.4th 992
Fed. Cir.2021Background
- Before the 2006 amendment, 38 U.S.C. § 5904 prohibited attorneys from charging fees for services provided before a final Board of Veterans’ Appeals decision.
- Congress enacted the Veterans Benefits, Health Care, and Information Technology Act of 2006, amending § 5904 to permit fees for pre-final-decision services only after a Notice of Disagreement (NOD) is filed; the Act’s effective-date clause delayed application until 180 days after enactment (June 20, 2007) and stated it "shall apply with respect to ... cases in which notices of disagreement are filed on or after that date."
- John Cameron filed an NOD for his client in August 2005 and sought VA payment of attorney’s fees for services rendered before a final Board decision; the VA denied fees under 38 C.F.R. § 14.636(c), which implements the Act’s effective-date limitation.
- Cameron appealed to the Board and the Veterans Court; both upheld the VA regulation as consistent with § 5904. Cameron appealed to the Federal Circuit.
- The Federal Circuit held the Statutes at Large effective-date language controls (placement as a statutory note does not negate effect) and that the statute plainly limits pre-final-decision fees to cases with NODs filed on or after June 20, 2007.
- The court affirmed the Veterans Court’s decision and rejected arguments that the effective-date note was merely ministerial, that the amendment’s purpose required broader application, or that § 5904(d) conflicted with (c).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Interpretation of § 5904 effective date: whether pre-2007 NODs permit recovery of fees for services before a final Board decision | Cameron: effective-date note is ministerial/inaffectual; statute should allow fees for his 2005 NOD client | VA: Statutes at Large effective-date language limits fees to cases with NODs filed on or after June 20, 2007; regulation implements that text | Court: Plain statutory language controls; fees limited to NODs filed on/after June 20, 2007; affirm denial |
| Legal force of placement as statutory note | Cameron: Because the effective date appears as a note rather than in the section text, it should not alter substantive rights | VA: Statutes at Large is controlling authority; codification as a note does not negate effect | Court: Placement as a note is immaterial; Statutes at Large governs and the note is binding |
| Alleged conflict with § 5904(d) and purposive arguments | Cameron: (d) and the Act’s ‘‘liberalizing’’ purpose show the amendment should apply broadly to benefit veterans | VA: (d) addresses payment timing, not eligibility; Congress deliberately delayed and staggered implementation to avoid disruption | Court: No conflict; purpose cannot override clear text; VA regulation faithfully implements congressional choice; no need to decide Chevron deference |
Key Cases Cited
- U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439 (1993) (Statutes at Large control legal effect of laws despite Code placement)
- Conyers v. MSPB, 388 F.3d 1380 (Fed. Cir. 2004) (placement of a provision as a statutory note does not defeat its effect)
- Rodriguez v. United States, 480 U.S. 522 (1987) (courts must respect legislative choices among competing objectives)
- O’Brien v. Wilkie, 948 F.3d 1339 (Fed. Cir. 2020) (standard: de novo review of Veterans Court statutory interpretation)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (framework for assessing agency deference; court did not need to reach Chevron here)