*1 courts, public; and the parties, other government. branches the other
binds decision, I re- contrary the court’s
From dissent.
spectfully CAMERON, F. Claimant-
John
Appellant, SHINSEKI, Secretary of
Eric K. Affairs, Respondent-
Appellee.
No. 2012-7125. Appeals, Court of
Federal Circuit. Carpenter, Carpenter, M.
Kenneth KS, Chartered, argued for Topeka, claimant-appellant. *2 Sweet, Attorney, Trial Com-
James R. BACKGROUND Branch, Division, mercial Civil Litigation duty Mr. Bartlett served on active Justice, Department of of United States 28, 2002, 1943 to 1963. On March DC, argued respondent- Washington, submitted a claim to the Department of were Stuart F. appellee. On the brief (“VA”) Regional Veterans Affairs Office Delery, Principal Deputy Assistant Attor- (“RO”) rating to increase his for his ser- General, Davidson, ney E. Di- Jeanne vice-connected Post-Traumatic Stress Dis- Manhardt, rector, Di- Kirk T. Assistant (“PTSD”), order which was then rated at rector, Hontos, Attorney. P. Trial and Alex disabling. The RO denied Mr. Bart- Brian D. Of counsel on the brief was Grif- lett’s claims for an increased fin, Attorney, Staff General Counsel, Department of appealed After Mr. Bartlett the RO’s Affairs, Washington, DC. Of denial, the Board issued its first final deci Timinski, Deputy counsel was Michael J. 16, 2005, sion this matter on March Assistant General Counsel. increasing Mr. Bartlett’s from 30% to 100%. It the claim remanded O’MALLEY, SCHALL, Before for the toRO its decision and WALLACH, Judges. Circuit determine the effective date of the award.1 Opinion for the court filed Circuit On March Judge WALLACH. but before the RO issued remand, decision on Mr. Bartlett entered Dissenting opinion filed Circuit into a fee with Mr. Cameron. Judge SCHALL. The fee provided that Mr. provide legal representa- Cameron would WALLACH, Judge. Circuit tion to Mr. Bartlett “in connection with all Attorney John F. appeals Cameron proceedings for benefits before the U.S. Appeals United States Court of for Veter Department of Veterans Affairs.” J.A.44. (“Veterans Court”) ans Claims’ affirmance agreement stipulated The fee that Mr. the Board of Appeals’ Veterans’ pay Bartlett would Mr. Cameron “a contin- (“Board”) decision “that determining attor gent equal percent to 20 total ney past fees from due benefits in the amount of past due VA benefits $9,199.19 representation amount for his claim(s) awarded on the basis of [his] Floyd of veteran W. Bartlett were correct the [VA].”J.A.44. ly calculated and that additional fees were the RO issued a decision Shinseki, not warranted.” Cameron v. implementing the in- Board’s decision to *2-3, 2012 WL disability crease Mr. rating Bartlett’s Vet. Claims LEXIS (U.S.App. *5-6 2012) (“Veterans PTSD from 30% to April effective Vet.Cl. Mar. Court De cision”). 10, 2002, the date that Mr. Because the Bartlett filed Veterans Court cor (“We rectly interpreted his claim. J.A.48 have (2004),we affirm. April effective date of which is 1. The Board dependents' also remanded Mr. Bartlett's award of educational assistance dependents' for entitlement edu- appealed benefits has not been and is there- cational assistance benefits for further devel- fore not before this court. opment readjudication. subsequent your we received claim for 20% of the additional award the date occasioned evaluation.”). change in the effective date of increased his disability rating.2 sought to recover fees for *3 Mr. Mr. Bart- Cameron filed an the benefits awarded to with re past-due spect to the RO’s the denial of his first fee implementation lett as a result of RO’s request. 2008, In 2005, September September In rating. of the 100% issued the decision on appeal, now which denied Mr. entitlement the RO affirmed the denial of that, attorney fees for the fees, attorney finding to because “the RO’s implementation of the 100% disability March [wa]s appeal, On the Veterans Court in [Board] decision rendered affirmed the Board’s denial. Veterans claim, provisions PTSD this veteran’s Decision, 661504, *6, Court 2012 at 5904(c)(1) § preclude the at- U.SApp. 362, 2012 Vet. Claims LEXIS at torney’s entitlement to fees based on bene- *20.3 Mr. Cameron filed timely ap arising fits from this decision.” J.A.52. peal. filing petition, In addition to this fee Cameron filed an on Mr. Bartlett’s Discussion
behalf with to the effective date assigned in- the RO to Mr. Bartlett’s jurisdiction This court’s to review 2006, disability rating. May creased In decisions of the Veterans Court is limited proper the RO determined that the effec- by statute. Pursuant to 38 U.S.C. disability rating tive date for the 100% 7292(a), jurisdiction this court has to January approximately 15 validity review “the of a decision of the earlier than the ini- months effective date Court on a rule [Veterans] of law or of tially assigned. The RO regulation statute or ... any interpre or $45,995.93 past-due Bartlett benefits (other tation thereof than a determination and also found that that Mr. matter) Cameron met as to a factual that was relied on requirements payment attorney for by the Court making [Veterans] fees under 38 U.S.C. 5904 and 38 C.F.R. decision.” to Except the extent that a Accordingly, attorney 20.609. presented, fees were constitutional issue is Cameron, representing may set aside for Mr. not review “a a factual challenge ceiving prior [July 2. Neither Bartlett nor Mr. Cameron filed to the ... 2005 RO deci- disagreement a notice of with this decision. sion] from the dollar value of rate the 100% compensation assigned’ July in the 2005” 2012, January 3. "Court 661504, *4, Id., RO 2012 WL at decision. sought clarification from Mr. Cameron re- 362, U.S.App. Vet. Claims LEXIS at *12 garding requested appeal. the relief” he (citation omitted). The Veterans Court noted Decision, Veterans Court 2012 WL this statement contains two errors: Vet. Claims LEXIS "First, previously assigned Mr. Bartlett was February at *12. In Mr. Cameron as- disability rating post-traumatic stress 30% "he serted that is entitled to an additional disorder, second, and, not $11,407.40 which he calcu- March 2005 Board decision that past paid lated to be due benefits 20% post-traumatic July to Mr. Bartlett as a result of 2005” disorder, Regional stress not the implementation. RO Id. Mr. Cameron assert- decision.” 2012 WL figure 'by ed "that he arrived at that sub- *4-5, tracting the dollar value of the rate of compensation [that] Mr. Bartlett had been re- misinterpreted 38 a law or that the Veterans determination,” challenge “a claims, which, 5904(c)(1), of a U.S.C. to the facts regulation applied as 7292(d)(2). Br. at on its face. Cameron’s clear case.” 38 particular Cameron, According to Mr. legal determinations Court’s The Veterans to section 5904 pursuant recover fees v. Shin novo. Cushman de are reviewed (Fed.Cir.2009). attorney is retained within long as the 576 F.3d seki Board’s after the date of the year one at issue is section applicable statute Id. at 5. of a final decision. issuance States title 38 of the United Code, provides: considered The Veterans Court *4 5904(c)(1) prevented 38 U.S.C. ... a fee whether provided
Except as [otherwise] attorney allowed, recovering from for Mr. Cameron charged, paid or may not be implementation of based on the RO’s attorneys and with fees agents of services This is a final Board decision. before the first provided services respect to statutory interpretation over question of Board of Veterans’ on which the date jurisdiction. may court exercise final in which this makes a decision Appeals first Nicholson, Carpenter v. 452 F.3d may charged, See a fee be the case. Such (“The (Fed.Cir.2006) Veterans allowed, paid in the case services or of of the ... final interpretation ‘first agent date if an Court’s provided such 5904(c) is a statu- in the case’ in respect to decision attorney or is retained with appeal tory interpretation, places and this one-year of the case before the end such ju- appellate Circuit’s that The lim- within Federal beginning on date. period risdiction.”). does preceding itation in the sentence provided to services with re- apply not may that a fee be provides The statute to before court. spect proceedings charged provided” “in the case of services 5904(c)(1) (2004) (emphasis the Board “first after the date on which added).4 a final decision in the case.” 38 makes 5904(c)(1). However, may no fee U.S.C. that argues Government before charged respect with to services jurisdiction does not have over Camer- decision. Id. This the first appeal because the rests on on’s Congress that intend- explained court has that the Court found that “fact provision “prohibit] ed this to that awarded bene- operative until charging for services agent or decision, fits the March 2005 Board deny a affirms its decision to the VA occurred Mr. Cameron was before claim,” Stanley Principi, v. 283 F.3d provide legal even retained to services to (Fed.Cir.2002) No. (quoting H.R.Rep. Bartlett,” a “factual mat- and this is 100-963, (1988), reprinted in 1988 or, minimum, application at a of law ] ter! 5810-11) (emphasis U.S.C.C.A.N. Secretary’s fact.” Br. at 16 n. 11. to omitted), paid and to “bar the retention original in connection with the VA issue on counsel
Mr. Cameron asserts law,” also Scates stating proceedings,” id. at 1356. See entirely an issue of provided attorneys respect services Congress to 4. altered section; disagree- a notice of provides, per- before the date on which the statute now respect the case.” 38 part: charged, ment is filed with tinent not be "[A] (2006). allowed, agents paid for services (Fed.Cir. Principi, Similarly, Carpenter 282 F.3d stated oral 2002) in (recognizing “congressional arguments: im protect
tent to veterans benefits from [provided] Services were essentially legal excessive proper diminution shepherd the case back before the RO fees”). get RO to the Board Decision and to be sure that the Board hinges This case on the [sic, implemented RO] that Board deci- term “services” in the context of this stat- correctly. sion question Now on the Assuming necessary ute. all other criteria rating, really there was not that much to met, prove are Mr. Cameron must do. However on the issue of the effec- indeed services were veter- date, tive necessary for Mr. Cam- an with to the award as to which eron to determine what the correct ef- sought. simply fees are When an RO im- fective date is in order to be sure that plements the relief Regional it implemented final Board there are no services this decision a correct effective provided by to be to the veter- *5 date.” an. As of the March 2005 Board deci- sion, legally Mr. Bartlett was entitled to a 1:27-1:57, Oral Argument at John Cam- PTSD, rating for his effective as of Shinseki, 2012-7125, eron v. No. available
the date he filed his for an increased http://www.cafc.uscourts.gov/oral- J.A.41; 5110(a); § see 38 U.S.C. argument-reeordings. 3.400(o). 38 C.F.R. That is what Mr. Bartlett received in the Additionally, RO deci- counsel offered Mr. Camer- sion. J.A.48. The RO decision did not on’s time-sheets as evidence of what Mr. weigh engage accomplished. evidence substantive Cameron J.A. 64-66. The Rather, any consideration of kind. Id. it records submitted show that Mr. Cameron purpose made clear that of this rat- drafted two letters to the RO before its ing is to implementation [Board’s] decision.” of the Board’s final deci- letters, Id. requested copies sion. those rating of the allocating a total point specific Mr. Cameron can to no sum of 30 minutes for both activities. J.A. provided services he to Mr. Bartlett with (4/01/05: 64-65 “Draft cover letter ... re- regard to the implementation RO’s Decision.”; quested required Rating increase in Mr. Bartlett’s “Draft up follow letter to the 6/16/05: for PTSD from 30% to effective decision”). [RO], requesting Rating original filing from Mr. Bartlett’s date explanation Mr. Cameron offers no as to April vague 2002. Mr. Cameron’s as- why these limited actions were relevant to activity sertions of on appeal do not rise the RO’s decision with to the effec- to the level of “services” within the mean- tive date or how such limited activities ing they of this statute because are unre- any way advocating for that were lated to the award obtained Mr. Bart- already the veteran had not secured. counsel, In briefing, lett. Mr. Cameron’s Carpenter, only undisputed asserts that: “the It is that Mr. Cameron did VA regional any office’s at that encouraged arguments actions were not make RO lawyer, proper reviewed Mr. Bartlett’s time about effective date. Rather, noted, Reply already Mr. Cameron.” Cameron’s Br. at RO set request agreed with Mr. Cameron’s statutory di- pursuant date effective fees, approximate rate 5110(a); additional 38 C.F.R. rection, see 38 U.S.C. Id., “$1,129 per hour.” WL would be 3.400(o). RO had It was n. Vet. at *6 date that an effective initially established n. 15. The at *19 Vet- a successful pursued Mr. Cameron Mr. Cameron for erans admonished Mr. Bartlett’s on of that determination explaining additional seeking effort, Mr. Cameron behalf. For ... the fee awarded “challenging rate at the 20% of benefits awarded fees strikes the Court as case as insufficient Mr. Bart- in his with specified frivolous.” lett. 362, at Claims LEXIS It complete makes sense. holding This would be undisputed that admonishment, Notwithstanding 5904(c)(1) re- barred urge Mr. Cameron continues to services before covering misinterpreted 38 that the Veterans Court the Board’s first final decision. the date of affirmed rendered would be requirement This his claim and that be- Board’s denial of reap if Mr. Cameron could meaningless occurred cause the RO decision issue from the first Board 20% of the rewards Bartlett as a signed after he had by signing a fee simply client, of Mr. Bart- he is entitled imple- the veteran before the RO’s past-due lett’s benefits. of that decision. mentation *6 He is not. holding practical also has serious This attorneys should not be en- implications; who, Conclusion to seek out veterans like
couraged Bartlett, already have secured correctly Because the Veterans Court on their own in order to award of benefits 5904(c)(1) (2004), interpreted 38 U.S.C. clients to extract as a sign them as the decision is already payable fee 20% of benefits. AFFIRMED matter, note Finally, practical as a we already collected a that Mr. Cameron has SCHALL, Judge, dissenting. Circuit $9,199.19 for “little more than 18 fee of claims of work on Mr. Bartlett’s hours performed by The work Mr. Cameron months, largely which consisted over 17 31, 2005, between March conversations with Mr. Bartlett.” phone Bartlett, 19, by July and retained Decision, WL its im- when the RO issued *6, LEXIS at Vet. Claims plementing the Board’s Despite at the fact that Mr. limited in the extreme. Under these cir- precious advocacy” “did little Cameron cumstances, recoil, help cannot but as one behalf, already he has re- Mr. Bartlett’s does, majority at Mr. the Cameron’s computed on the basis of an said, ceived fees That I the fees. believe per rate of hour. approximate majority today is by $540 result reached contrary language to the clear of the stat- 5904(c)(1). ute, I at *19. The Veterans therefore respectfully that if dissent. Court also observed Board, may that a fee own provides upon request The statute its motion or the provided” “services after the charged for party, may of either review such a fee the Board “first makes a date on which order a reduction in undisput- final decision in the case.” It is the fee called for in the if the by Mr. performed ed that the work Cam- Board finds that the fee is excessive or eron, claiming attorney he is for which I nothing prevent unreasonable.” see March place took after the Board’s the Board from considering, on its own view, my final decision. In motion, by whether the fee claimed Mr. reason, that Mr. Cameron’s claim is cov- in this Cameron ease is unreasonable and 5904(e)(1). ered reducing then if it determines that majority, though, concludes that the it is unreasonable. performed by Mr. Cameron after work above, For the reasons set forth I would prior March hold that the Board and the Court of drafting consisted of letters to the (“Veterans Appeals for Veterans Claims RO, did not rise to the level of “services” Court”) erred in holding that the work within the of the statute. performed by Mr. Cameron that is at issue conclusion, reaching majority qualify did not prior “services” under that, most, *7 much it. It decision has to recommend quite reasonably argued
can that Mr.
Cameron should not be able to recover extremely fees for the limited NEPHEW, INC., Appellant, SMITH & performed. problem work he I have majority’s approach with the is that I am anything statutory
unable to find REA, Acting Director, Teresa Stanek which limits the Patent and Trademark way majority word in the “services” Office, Appellee, Congress does. If had wished to limit the per- circumstances under which work (U.S.A.), Synthes Appellee. formed after a final Board qualifies provided,” “services No. 2012-1343. easily could have done so. Appeals, States Court of United view, however, my the statute does Federal Circuit. provide way addressing circum- presented by stances a case such as this. prior Pursuant version of 38 U.S.C. appeal, relevant to this notes all Mr. Cameron did 5904(c)(1). I therefore would reverse following the Board’s remand was send the Veterans Court’s decision and would requesting two letters to the RO a deci- remand the case with the instruction that Majority According Op. sion. See 1369-70. court, turn, remand the case to the majority, to the that work not consti- did Board for the Board to determine the providing legal tute services: “[Wjhen amount of fee to which Mr. simply implements an RO entitled, noting the Board has the relief the first final Board deci- sion, no there are services to be authority prior under to con- veteran.” See id. sider, motion, on its own the reasonable- ness of the fee claimed Mr. Cameron. policy, majority’s As a matter of