15 Vet. App. 64 | Vet. App. | 2001
Lead Opinion
FARLEY, Judge, filed the opinion of the Court. STEINBERG, Judge, filed an opinion concurring in part and dissenting in part. KRAMER, Chief Judge, filed a dissenting opinion.
This is an appeal from the April 6, 1999, decision of the Board of Veterans’ Appeals (BVA or Board) which found that the total attorney fees charged by the appellant, attorney Kenneth M. Carpenter, for his representation of veteran Victor S. Weath-erspoon, were “excessive and unreasonable.” The BVA reduced the appellant’s fee to 20% of the past-due benefits awarded to his client. The Board also concluded that the appellant was legally bound to refund to Mr. Weatherspoon the fees awarded to him pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). For the reasons that follow, the Court will affirm the decision of the Board in part and reverse in part.
I. BACKGROUND
The veteran served on active duty in the United States Army from July 1979 to September 1980. Record (R.) at 13. VA denied his claim for service connection for a nervous disorder in May 1981. R. at 35. In February 1993, Mr. Weatherspoon sought to reopen his service connection claim. R. at 79. In February 1994, he filed a VA Form 22a with the regional office (RO) appointing the appellant, Kenneth M. Carpenter, as his representative. R. at 46. The RO awarded the veteran service connection for bipolar affective disorder with chronic undifferentiated schizo
In February 1995, the appellant filed, on behalf of the veteran, a claim for an earlier effective date for his service connection award on the basis of clear and unmistakable error (CUE) in the March 1981 RO decision. R. at 49-51. In April 1995, the RO determined that there was no CUE in the May 1981 RO decision and the Board affirmed. R. at 53-56, 76-86.
On May 1, 1997, the appellant filed a Notice of Appeal with this Court on behalf of the veteran. On the same date he filed with the Court a copy of a fee agreement entered into between him and the veteran. The agreement provided in pertinent part:
2. SCOPE AND DUTIES. Client [the veteran] hires Attorney [the appellant] to provide legal services in connection with appeal to U.S. Court of Veterans Appeals [now the U.S. Court of Appeals for Veterans Claims (Court)]. Attorney shall provide the following services: All services necessary to prosecute appeal to the [Court]. As a result of a decision by the [Court], the veteran’s case may be remanded and the Board of Veterans’ Appeals previous decision vacated. In the event of a court-ordered remand this agreement shall include representation of the veteran by the Attorney at both the Board of Veterans’ Appeals as well as any Regional Office of the Department of Veterans Affairs....
3. CONTINGENT FEE (DEPARTMENT OF VETERANS AFFAIRS CASES). Client agrees to pay a fee equal to thirty percent (30%) of the total amount of any past-due benefits awarded to Client, to include veteran, dependent or survivor benefits; on the basis of the Client’s claim with the Department of Veterans Affairs.... This representation is undertaken upon the following conditions:
c. The services contemplated under this contract before the [Court], Federal Circuit Court of Appeals, Board of Veterans’ Appeals, or Department of Veterans affairs Regional Office relate specifically to the claim or claims previously decided by the Board of Veterans’ Appeals.
4.EQUAL ACCESS TO JUSTICE ACT (EAJA) FEES. It is understood that in actions before the [Court], an application for attorney fees, costs and expenses may be filed on behalf of Client under EAJA in order to reimburse Client for attorney fees, costs and expenses which were required to be paid to protect Client from unreasonable governmental action. The recovery of reasonable attorney fees, costs and expenses for work performed on behalf of Client at the Court may be ordered. In the event of such Court-ordered award, such attorney fees, costs and expenses shall be payable directly to Attorney. It is understood and agreed that any attorney fees awarded under EAJA shall be the sole and exclusive property and entitlement of Attorney, for the services rendered to the Client for representation before the Court.... Attorney agrees that in the event the Court grants an award of benefits, if there is ultimate successful recovery of past-due benefits for Client, an offset will be made against the entitlement paid under the Attorney/Client Contingent Fee Contract of Attorney’s percentage of past-due benefits, in the amount of the sum of the attorney fees awarded by the Court under the provisions of EAJA. Client agrees that in the event the Court*68 remands veteran’s case, no offset will be made against the entitlement paid under the Attorney/Client Contingent Fee Contract of Attorney’s percentage of past-due benefits in the amount of the sum of the attorney fees awarded by the Court under the provisions of EAJA, if there is ultimate successful recovery of past-due benefits for Client.
R. at 89-90.
By letter dated May 1, 1997, the appellant also sent a copy of this fee agreement to the Board. The appellant’s letter stated that the fee agreement was being submitted to the Board “in the event of a remand from the [Court].” R. at 88. On July 3, 1997, the Deputy Chief Counsel for Legal Affairs of the BVA, by direction of the Chairman of the BVA, sent a letter to the appellant acknowledging receipt of the fee agreement. R. at 96. The letter also stated:
As we have previously discussed with you, paragraph 4 of your agreement, relating to fees under the [EAJA], appears to provide that fees awarded under EAJA will not be offset against your client’s fees if the [Court] remands Mr. Weatherspoon’s case and past-due benefits are awarded. This provision appears to be in violation of § 506(c) of Pub.L. No. 102-572 (Oct. 29, 1992), which provides that, when an attorney receives fees for the same work under both 28 U.S.C. § 2412(d) and 38 U.S.C. § 5904, the attorney shall refund the smaller amount to the client. The law does not appear to provide an exception where a case is remanded from the Court.
If you receive an EAJA fee and your client is awarded past-due benefits, we will take appropriate steps to review your fee agreement for reasonableness.
Id.
In February 1998, the Court granted the parties’ joint motion for remand of the veteran’s claim for an earlier effective date. R. at 110. On May 8, 1998, the Court awarded the veteran $2,473.17 in attorney fees and expenses pursuant to EAJA. See R. at 137. In August 1998, the Board found that there was CUE in the May 6, 1981, RO decision and awarded the veteran an effective date of January 20, 1981, for his service-connected psychosis. R. at 116-26. In September 1998, the RO implemented the Board’s decision and awarded the appellant $206,017.00 in past-due benefits. R. at 128-29,141-42.
In a letter dated November 17,1998, the Office of the Chairman of the BVA notified the appellant that because his fee agreement did not provide that his contingent fee be offset by the EAJA award, the Board was being directed to review his fee agreement for reasonableness pursuant to 38 U.S.C. § 5904(c)(2). The appellant filed a response in which he argued that the Board had no jurisdiction to review his fee agreement pursuant to 38 U.S.C. § 5904(c) and that, even if the Board did have jurisdiction, his fee, including the retention of the EAJA award, was reasonable. R. at 146-48. The appellant also argued that “the work performed by [his] office to secure the joint remand [was] entirely separate and apart from the work performed at the Board on remand.” R. at 147. Thus, the appellant argued, “The work performed at the [BVA] is not, and cannot as a matter of law, be considered the same work as performed before the Court.” R. at 148. The appellant also submitted a letter from the veteran stating that he considered the appellant’s fee to be fair, just, and reasonable under the circumstances. R. at 144.
In the BVA decision here on appeal, the Board found that the 30% contingency fee charged by the appellant was excessive and unreasonable and therefore reduced
II. JURISDICTIONAL ISSUES
The appellant proposes several different theories in arguing that the Board’s decision should be vacated because the Board lacked jurisdiction to review his fee agreement. First, he contends that the fee agreement reviewed by the Board was initiated pursuant to 38 U.S.C. § 7263 which pertains to representation before the Court, rather than § 5904(c) which addresses representation before the Board and VA. Accordingly, he argues that the fee agreement is controlled by § 7263, and the Board, therefore, did not have jurisdiction to review it pursuant to § 5904(c). Second, the appellant urges that since the Court granted the parties’ joint motion for remand and awarded EAJA fees, the Court presumably reviewed the fee agreement for reasonableness pursuant to § 7263 and, through its silence, implicitly decreed the agreement reasonable. The appellant contends that this implicit conclusion is “the law of the case.” Finally, the appellant argues that even if the Board had the authority to review the fee agreement for reasonableness pursuant to § 5904(c)(2), the Board exceeded that authority by considering his “eligibility” for a fee when it determined that he must return the EAJA fee awarded by the Court to the veteran.
A. Section 5904.(c) and Section 7263
Section 5904(c) of title 38, U.S.Code provides, in pertinent part:
(2) A person who, acting as agent or attorney in a case referred to in paragraph (1) of this subsection, represents an appellant before the Department or the Board of Veterans’ Appeals after the Board first makes a final decision in the case shall file a copy of any fee agreement between them with the Board at such time as may be specified by the Board. The Board, upon its own motion or the request of either party, may review such fee agreement and may order a reduction in the fee called for in the agreement if it finds that the fee is excessive or unreasonable. A finding or order of the Board under the preceding sentence may be reviewed by the United States Court of Appeals for Veterans Claims under section 7263(d) of this title.
Section 7263 of title 38, U.S.Code provides, in pertinent part:
(c) A person who represents an appellant before the Court shall file a copy of any fee agreement between the appellant and that person with the Court at the time the appeal is filed. The Court, on its own motion or on the motion of any party, may review such fee agreement.
(d) In reviewing a fee agreement under subsection (c) of this section or under section 5904(c)(2) of this title, the Court may affirm the finding of the Board and may order a reduction in the fee called for in the agreement if it finds that the fee is excessive or unreasonable.
The fee agreement at issue in this matter was entered into after the Board made a final decision in the veteran’s case and was filed with this Court at the time the appeal was filed. The agreement not only addressed representation before this Court, but also specifically provided for representation before the Board and the Department of Veterans Affairs in the event this Court remanded the veteran’s claim. In contemplation of that possibility,
The fact that this Court had the opportunity to review the fee agreement pursuant to § 7263 is not a bar to the Board’s review of the agreement. Section 7263 authorizes the Court, on its own motion or on the motion of any party, to review a fee agreement filed with the Court; it does not require us to do so. See 38 U.S.C. § 7263(c) (“The Court ... may review such fee agreement.”) (emphasis added); see also Lewis v. Brown, 5 Vet.App. 151, 154 (“[T]he Court will not ordinarily review sua sponte every fee agreement.”). Neither party made such a motion, and the Court did not undertake a review on its own. The Court agrees that had the Court reviewed the fee agreement as it pertained to work before this Court pursuant to § 7263(d), the Board would have been precluded from reviewing at least that portion of the fee agreement. Cf. Smith v. Brown, 35 F.3d 1516, 1526 (Fed.Cir.1994) (declining to interpret a regulation in such a way that would, “oddly, permit an inferior to collaterally review the actions of a superior.”). However, the Court’s silence on the reasonableness of the fee agreement cannot be said to be an implicit holding that the agreement was, in fact, reasonable and the Board was free to review the agreement properly before it pursuant to 38 U.S.C. § 5904(c).
Additionally, the Board was free to review the entire fee agreement properly before it, and was not required to limit its review to only that portion that pertained to work before the BVA. Section 5904(c)(2) requires that an attorney representing a claimant before the Board or VA file a copy of his or her fee agreement with the Board. The statute further authorizes the Board to review “such agreement” for reasonableness. Such fee agreements will often encompass work performed before the Board, VA, and the Court (as was the case with this fee agreement). We find nothing in the language of § 5904(c) or § 7263 to require the Board to dissect a fee agreement to review only that portion pertaining to work performed before the Board or to so limit the Board’s scope of review. In fact, when read together, these two sections operate to ensure that if the Court does not first review a fee agreement, the Board may review the agreement upon a remand of the claim, and that decision will be subject to de novo review by this Court. See 38 U.S.C. §§ 5904(c), 7252, 7263(d); In re Vernon, 8 Vet.App. 457, 459 (1996) (“[I]n conducting a review of a fee agreement, a finding by the Board regarding the excessiveness or unreasonableness of the fee is entitled to no deference.”); see also 38 C.F.R. § 20.609(i) (a reduction in fees may be ordered by the Board even after payment has been made to the attorney; in such a case, the attorney must refund any overpayment to the client).
B. Reasonableness vs. Eligibility
The appellant contends that, even if the Board did have jurisdiction to review this fee agreement pursuant to § 5904(c), the Board exceeded its jurisdiction because it considered not only the reasonableness of his fee but also his eligibility to collect a fee. In Scates v. Gober, this Court held that “all issues involving enti
As the appellant points out, the jurisdiction of the Board and the Court to review fee agreements pursuant to §§ 5904(c) and 7263 is narrow. See, e.g., Cox v. West, 149 F.3d 1360, 1364 (Fed.Cir.1998) (“By its terms, section 5904(c)(2) only gives the Board limited jurisdiction to review the reasonableness of a fee and to reduce the fee.”); In re Wick, 40 F.3d 367, 371 (Fed.Cir.1994) (“[T]he court’s review of fee agreements under § 7263 is strictly limited by the language of the statute.... [T]he court is authorized only to ‘order a reduction in the fee called for if it finds the fee is excessive or unreasonable.’ ”); Scates, supra. In Cox, Wick, and Scates, this Court and the U.S. Court of Appeals for the Federal Circuit held that, because the reasonableness of the fee charged by each attorney was not at issue, neither § 5904(c) nor § 7263 could serve as a jurisdictional basis for the Board or the Court’s review of the fee agreements. In each of those cases, the issue presented was the attorney’s eligibility to collect a fee.
An attorney can be eligible to collect a fee pursuant to a fee agreement and still pursue an award of statutory fees on his Ghent’s behalf. See Venegas v. Mitchell, 495 U.S. 82, 86-87, 110 S.Ct. 1679, 109 L.Ed.2d 74 (1990) (the attorney fee provision of the Civil Rights Act, 42 U.S.C. § 1988, does not preclude attorneys from contracting with their clients for fees in addition to the amount awarded by the court). However, this Court has found that fee agreements which do not provide for an offset of attorney fees paid by the veteran by the amount of any EAJA award for the same work are unreasonable. Shaw v. Gober, 10 Vet.App. 498, 505 (1997) (holding that a fee agreement was “ ‘unreasonable’ on its face to the extent that it may be read as precluding an offset where the Court remands with a direction that the BVA award benefits that the Court finds are required as a matter of law”); see also In re Mason, 11 Vet.App. 514, 516 (1998) (Court found “ ‘unreasonable’ on its face” a fee agreement provision precluding reimbursement of costs and expenses to client when EAJA settlement is less than the full amount); Wingo v. West, 11 Vet.App. 307, 312-13 (1998) (same). The Board did not find that the attorney was ineligible to collect a fee pursuant to his fee agreement or EAJA, but considered instead whether the portion of the fee agreement which provided for the attorney’s retention of both fees was unreasonable. Accordingly, the Board’s review of the fee agreement in this matter did not exceed its jurisdiction to review the fee agreement for reasonableness pursuant to § 5904(e), and therefore we find no occasion to consider the appellant’s request for an extension of Scates.
C. The Jurisdiction of the Court
The jurisdiction of the Court of [Appeals for Veterans Claims] is specifically defined by statute at 38 U.S.C. § 7252, in a provision entitled “Jurisdiction; finality of decisions.” That provision states: “The Court of [Appeals for Veterans Claims] shall have exclusive jurisdiction to review decisions of the Board of Veterans’ Appeals .... The Court shall have poiver to affirm, modify, or reverse a decision of the Board or to remand the*72 matter, as appropriate.” 38 U.S.C. § 7252 (emphasis supplied). In determining the jurisdiction conferred by § 7252, we are mindful that “[j]urisdic-tional statutes are to be construed ‘with precision and with fidelity to the terms by which Congress has expressed its wishes’.” Palmore v. United States, 411 U.S. 389, 396, 93 S.Ct. 1670, 1675, 36 L.Ed.2d 342 (1973) (quoting Cheng Fan Kwok v. INS, 392 U.S. 206, 212, 88 S.Ct. 1970, 1974, 20 L.Ed.2d 1037 (1968)).
In re Wick, 40 F.3d at 370; see also 38 U.S.C. § 7261 (defining the Court’s scope of review). In addition, Congress authorized this Court to “‘review’ fee agreements between an appellant and a person representing the appellant before the [C]ourt when an appeal is properly before the [C]ourt and when a copy of the fee agreement has been filed with the [CJourt at the time the appeal is filed.” In re Wick, 40 F.3d at 371; 38 U.S.C. § 7263. In such instances, § 7263(d) gives the Court the additional authority to “affirm the finding of the Board and ... order a reduction in the fee called for in the agreement if it finds that the fee is excessive or unreasonable.”
“[F]ee agreements are properly before the court ... when it reviews decisions of the Board concerning an agreement or on any other matter decided by the Board.” In re Wick, 40 F.3d at 371. Before this Court is an April 6, 1999, decision of the Board regarding the reasonableness of the fee called for in a fee agreement between the appellant and the veteran. That decision was appealed to this Court by the appellant. Thus, this Court has jurisdiction over the April 6, 1999, BVA decision pursuant to 38 U.S.C. § 7252 and the fee agreement between the appellant and his client is “properly before the [Cjourt” for our review. Id.
III. THE REASONABLENESS OF NO OFFSET FOR EAJA FEES
The fee agreement at issue in this matter stated that in the event the Court ordered an award of benefits, the attorney’s fee would be offset by any fees awarded to the veteran pursuant to EAJA. However, if the Court remanded the claim, the agreement stated that no such offset would be made. Since the veteran’s claim was indeed remanded, pursuant to the fee agreement no offset of the fee was to be made.
Relying upon section 506(c) of the Federal Courts Administration Act of 1992 (FCAA), the Board found that when an attorney receives fees for the same work under both 38 U.S.C. § 5904 and EAJA, the attorney must refund the smaller fee to his or her client. See Pub.L. No. 102-572, 106 Stat. 4506 (Although “[sjection 5904(d) of title 38, United States Code, shall not prevent an award of fees under [EAJA], ... where a claimant’s attorney receives fees for the same work under both section 5904 ... and [EAJA] the claimant’s attorney refunds to the claimant the amount of the smaller fee.”). Therefore, the Board concluded that the appellant must refund to the veteran the EAJA fee awarded by the Court.
Although the applicability of § 506(c) of the FCAA is “doubtful” with respect to a fee agreement reviewed pursuant to § 5904(c), as opposed to § 5904(d), which is specifically mentioned in § 506(c),
the policy underlying the proscription in section 506 against double payment for the same legal work is inherent in the policy against an ‘unreasonable’ fee embodied in sections 5904(c)(2) and 7263(d) and thus would be enforceable by the Court through a finding that a fee-agreement provision providing for such double payment is unreasonable.
[E]ven if section 506 does not apply to a fee agreement, such as is involved in this case, that does not provide, under section 5904(d), for direct payment by the Secretary of a contingent fee of 20% or less of past-due VA benefits, the policy underlying the proscription in section 506 against double payment for the same legal work is inherent in the policy against an “unreasonable” fee embodied in sections 5904(c)(2) and 7263(d) and thus would be enforceable by the Court through a finding that a fee-agreement provision providing for such double payment is unreasonable under 38 U.S.C. § 7263(d). That policy is divined from the legislative history of section 206 of Pub.L. No. 96-481, 94 Stat. 2321, 2330 (1980), as amended by Pub.L. No. 99-80, § 3, 99 Stat. 183, 186 (1985) (found at 28 U.S.C. § 2412 note) relating to the Social Security Act (SSA) [hereinafter section 206 relating to SSA], That SSA provision contains language that essentially mirrors that found in FCAA § 506(c). The legislative history of section 206 relating to SSA explained: “Without this amendment [precluding an attorney for a Social Security or Supplemental Security Income (SSI) claimant from receiving both EAJA and SSA fees] it was argued, ‘double dipping’ was possible. Such double payments are inappropriate and deprive[ ] the plaintiff of the benefits intended by EAJA.” H.R.Rep. No. 99-120, 99th Cong. 1st Sess. at p. 20, 1985 U.S.Code Cong. & Ad.News at 148-49 (1985) (EAJA Extension and Amendment) (Section by Section Analysis describing section 3 of H.R. 2378, which was identical to provision ultimately enacted in Pub.L. No. 99-80); see Wells v. Bowen, 855 F.2d 37, 42 (2d Cir.1988) (“Congress clearly intended the two statutes to work in conjunction and that dual fee applications [under the SSA and EAJA] are not improper as long as the lesser of any two amounts awarded goes to the attorney’s client”; indeed, “attorney working under contingent-fee agreement can best defray the client’s cost of legal services by seeking both EAJA and SSA fees”.). The House Committee report stated that, although the attorney would be permitted “to seek recovery under both authorizations [the EAJA and SSA] ... [, t]he attorney ... may keep the larger fee, but must return the amount of the smaller fee to the claimant.” H.R. Rep. 99-120, 99th Cong. 1st Sess. at p. 20, 1985 U.S.Code Cong. & Ad.News at p. 149.
Shaw, 10 Vet.App. at 504. Thus, a fee agreement allowing an attorney to collect and retain both an EAJA fee as well as a fee from the client for the same work is “unreasonable” pursuant to 38 U.S.C. §§ 5904 and 7263.
In Shaw, the fee agreement at issue, like the fee agreement in this matter, stated that there would be no offset of an EAJA award where the Court remanded the claim. The Court held that the fee agreement was “ ‘unreasonable’ on its face to the extent it may be read as precluding an offset where the Court remands with a direction that the BVA award benefits that the Court finds are required as a matter of law.” 10 VetApp. at 505. However, the Court also held that “the double-payment proscription would have no application to the payment of fees under the EAJA and under the fee agreement where the legal work done in connection with those fees is
The concept that work performed before this Court and on remand to the Board and VA is not necessarily the “same work” was the subject of this Court’s decision in Fritz v. West, 13 Vet.App. 190 (1999). In Fritz, the Court again considered the reasonableness of a provision in a fee agreement that no offset of an EAJA award would be made where the Court remanded the claim. On the merits of the veteran’s appeal, the Court had granted the parties’ joint motion for remand, vacated the Board’s decision, and remanded the claim for readjudication. 13 Vet.App at 191. The Court held that the fee agreement was not unreasonable on its face pursuant to Shaw, supra, because the fee agreement did not preclude an offset where the Court reverses and remands for an award of benefits. Id. at 194. The Court noted that “[u]nder Shaw, an attorney generally may retain an entire contingency-fee amount if the representation provided before the BVA/VA subsequent to the attorney’s work before the Court involves obtaining more relief from the department than2 what the appellant received from the Court.” Id. The Secretary had argued that the EAJA award required an offset because “inasmuch as the contingent fee contemplates a single sum in payment for services provided both before the Court and in any post-remand proceedings before VA, it is not clear to what extent the contingency fee may be duplicative of the EAJA award for services before the Court only.” Id. The Court rejected this argument. Relying upon this Court’s decision in In re Mason, (13 Vet.App. 79 (1999)) the Court held:
[W]here the attorney claims the contingency fee for the representation provided in this Court, it would appear that any EAJA award for such representation would result in an offset against the contingency fee owed under the agreement. On the other hand, if the attorney claims the contingency fee for the representation provided before the BVA/VA, resulting in an award of benefits beyond the relief awarded by the Court, it would appear that no offset would be required.
13 Vet.App. at 194. The Court, in Fritz, therefore held that the attorney-fee-offset provisions in the fee agreement were not objectionable in the context of that case. Id. at 194. Thus, it appears that we have by our decisions in Shaw and Fritz crafted a narrow interpretation of the term “work,” leaving open an opportunity for the subversion of the very purpose of EAJA.
“Congress passed the EAJA in response to its concern that persons ‘may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in securing vindication of their rights.’ ” Sullivan v. Hudson, 490 U.S. 877, 883, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989). “ ‘The objective of EAJA is to eliminate financial deterrents to individuals attempting to defend themselves against unjustified government action. Veterans are among the types of individuals the statute was intended to help.’ ” Abbs v. Principi, 237 F.3d
The compensation the appellant agreed to accept for his services was “thirty percent (30%) of the total amount of any past-due benefits awarded to Client ... on the basis of the Client’s claim with the Department of Veterans Affairs.” R. at 90 (emphasis added). He agreed “to provide legal services [to the veteran] in connection with [his] appeal to the [Court].” R. at 89. The fee agreement specifically provided that the work to be performed would include “[a]ll services necessary to prosecute appeal to the [Court and] ... [i]n the event of a court-ordered remand this agreement shall include representation of the veteran by the Attorney at both the Board of Veterans’ Appeals as well as any Regional Office of the Department of Veterans Affairs.” Id.
The portion of the agreement discussing the contingency fee repeatedly described the payment as it pertained to the veteran’s “claim or claims,” and made no differentiations as to work to be performed before the Court, Board, or VA. In the EAJA portion of the fee agreement, however, the agreement did make such differentiations. Although the cost to the veteran of the 30% fee would be deferred by any amount awarded by the Court pursuant to EAJA in the event the Court awarded past-due benefits, the agreement carved out an exception where, in the event the Court remanded the claim, the 30% fee would actually be supplemented by any EAJA fee awarded. The Court did remand the veteran’s claim, and past-due benefits were awarded on remand. Thus, the appellant collected a fee equal to 30% of the past-due benefits plus the EAJA fee awarded to the veteran. This, of course, resulted in no greater cost to the veteran; however, it stripped the veteran of his right pursuant to EAJA to have his legal fees paid, at least in part, by the United States.
IV. THE REASONABLENESS OF THE 30% CONTINGENCY FEE
The Court, like the Board, is vested with the power to review fee agreements; however, the Court has concluded that it “should intrude upon such a free and voluntary contract only upon the invitation of the parties or where the fee agreement is patently unreasonable on its face.” Lewis, 5 Vet.App. at 154 (emphasis added); see also In Re Mason, 12 Vet.App. 135, 136-38 (1999) (Nebeker, Chief Judge, concurring.). In an attempt to entice attorneys to represent veterans, 38 U.S.C. § 5904(d) made it possible for the attorneys to be paid directly by the Secretary, but limited the fee the attorney could charge under a § 5904(d) agreement to 20% of any past-due benefits awarded to the veteran. However, the provisions of § 5904(d) were made neither exclusive nor mandatory and attorneys are free to enter into fee agreements that do not meet the requirements of § 5904(d), but in such instances they must collect their fees directly from their clients without the assistance of the Secretary. The only statutory limits on fees pursuant to non-direct-pay fee agreements are that an attorney cannot charge for services performed prior to entry of a final decision by the Board and the fee cannot be “excessive or unreasonable.” See 38 U.S.C. § 5904(c)(1) and (2). However, the mere fact that a fee pursuant to a non-direct-pay fee agreement exceeds the 20% does not make it “patently unreasonable on its face” such that there should be an “intru[sion]” into the agreement entered into by the attorney and his client. Compare Silverman v. Brown, 7 Vet.App. 487 (1995) (Court reviewed fee agreement calling for a fee “not to exceed 50% of benefits awarded” plus “additional reasonable compensation”) with Matter of Fee Agreement of Smith, 4 Vet.App. 487, 499 (1993) (Court found fee of $1,000 plus a 20% contingency fee not “excessive or unreasonable”). With respect to the BVA’s review of fee agreements, the Court commented soon after its inception that
*77 [i]n a very real sense, the parties to a review of a fee agreement are the claimant on the one hand and the attorney on the other. Rather than performing as an advocate, the BVA serves in a quasi-judicial role. Under these circumstances, when review of a fee agreement is statutorily authorized, we think it appropriate, indeed necessary, that the BVA provide notice to the claimant as well as to the claimant’s attorney of its intention to review a fee agreement and of its ultimate decision.
Nagler v. Derwinski, 1 Vet.App. 297, 304 (1991).
The record in this matter indicates that the appellant was advised that the Board’s review of the fee agreement was initiated because of a concern that the appellant was attempting to retain both the contingency fee and the EAJA fee awarded to the veteran. In the July 3, 1997, letter, Thomas D. Roberts, Deputy Chief Counsel for Legal Affairs, concluded: “If you receive an EAJA fee and your client is awarded past-due benefits, we will take appropriate steps to review your agreement for reasonableness.” R. at 96. In his letter of November 17, 1998, Mr. Thomas wrote:
Because your fee agreement does not provide that your contingent fee payment from past-due benefits is to be offset by an EAJA award concerning your Court work, we are asking the Board to review your fee agreement with Mr. Weatherspoon for reasonableness on its own motion, pursuant to 38 U.S.C. § 5904(c)(2).
R. at 141. On the record before the Court, at no time was the appellant advised that the fee agreement was going to be reviewed for reasonableness of the 30% contingency fee.
As demonstrated in Part III of this opinion, the Board’s concern about the lack of an EAJA offset was legitimate and its review in that regard proper. An artfully or inartfully drafted contingency fee agreement which would circumvent the letter and spirit of EAJA would be “patently unreasonable on its face.” However, the Board’s actual review of the fee agreement and its ultimate decision were far more expansive than that directed by the Chairman or described in the letters to the appellant.
The Board found that the 30% contingency fee provided for by the fee agreement was excessive and unreasonable and therefore reduced the fee to 20% of past-due benefits awarded. In determining that the 30% contingency fee was unreasonable, the Board stated:
A review of the record demonstrates that the extent and type of services the attorney performed since March 1997 included negotiating and assisting in drafting a joint motion for remand, writing a letter dated February 26, 1998, to the Adjudication Officer at the RO, and writing a June 2, 1998[,] five-page document with additional argument in support of the veteran’s appeal and submitting it to the Board. It is also very likely that in the months between the March 1997 Board decision and the August 1998 Board decision, the attorney had several contacts with the veteran. However, in the additional arguments from the attorney, contained in the letter dated December 11, 1998, the attorney does not itemize or otherwise indicate that any other legal services were performed to justify fees over $60,000.00.
R. at 6. The appellant argued that there was no factual or legal basis to conclude that his fee was unreasonable; the Board disagreed, stating:
As noted above, there is no evidence of legal services provided after the March*78 1997 Board decision which justify such an excessive fee. There is no evidence of record as to the number of hours the attorney and his staff worked on this case from March 1997 to August 1998. In his December 1998 letter, the attorney has not alleged that he and his staff worked an inordinate amount of hours on this case. In assessing the reasonableness of his fee, the Board notes that if an attorney were to charge $200 per hour for legal services, it would require 309 hours of work to constitute a fee of $61,800.00. The evidence available of the legal services the attorney provided the veteran between the final Board decision in March 1997 and the August 1998 Board decision does not justify a fee of $61,805.10, and the Board finds that the fee is “excessive and unreasonable.”
R. at 7. Noting that VA regulations provide that a fee of 20% of past-due benefits is presumed reasonable, the Board then concluded that, in this matter, “[ajlthough the evidence does not demonstrate that the attorney and his staff spent a great deal of time on this case between March 1997 and August 1998, the other factors in determining whether fees are reasonable support a determination that a fee of 20 percent of past-due benefits is reasonable.” Id.
Pursuant to 38 C.F.R. § 20.609(e), factors to be considered by the Board in determining whether fees are reasonable include:
(1) The extent and type of services the representative performs;
(2) The complexity of the case;
(3) The level of skill and competence required of the representative in giving the services;
(4) The amount of time the representative spent on the case;
(5) The results the representative achieved, including the amount of any benefits recovered;
(6) The level of review to which the claim was taken and the level of the review at which the representative was retained;
(7) Rates charged by other representatives for similar services; and
(8) Whether, and to what extent, the payment of fees is contingent upon the results obtained.
The Court reviews the Board’s decisions regarding the reasonableness of a fee agreement de novo. See In re Vernon, 8 Vet.App. at 459 (“[I]n conducting a review of a fee agreement, a finding by the Board regarding the excessiveness or unreasonableness of the fee is entitled to no deference.”).
The appellant argues that the Board improperly interpreted 38 C.F.R. § 20.609(f) as establishing a presumption that a reasonable fee is limited to no more than 20% of past-due benefits, and that in order to charge a greater fee, the attorney must rebut that presumption. The Court agrees that this would be an improper application of 38 C.F.R. § 20.609(f) (“Fees which total no more than 20 percent of any past-due benefits awarded ... will be presumed reasonable.”). However, upon close inspection of the Board’s decision, it appears the Board did not apply § 20.609(f) until after it reduced the 30% fee to 20%. The Board then acknowledged that a 20% fee would be presumed reasonable, but applied the factors set forth in 38 C.F.R. § 20.609(e) to determine whether the presumption had been rebutted and a fee even lower than 20% was justified. In considering these factors the Board found that (1) “the case was quite complex”; (2) “the attorney demonstrated skill and competency”; (3) “the results, including the amount of benefits recovered, were very beneficial
Turning to the Board’s reduction of the fee from 30% to 20% of past-due benefits, it is apparent to the Court that the Board was struck by the total amount of the fee and focused primarily on the number of hours the attorney and his staff spent on this case. Although the number of hours spent is one factor to be considered in determining whether a fee is reasonable, particularly where an agreement calls for an hourly fee, it is not the only or indeed the primary factor in the case of a contingency fee agreement. An attorney taking a case on a contingent basis may earn a large fee for very few hours; however, that same attorney also takes the risk that he will receive no fee, regardless of the number of hours spent on a case. In essence, the attorney agrees to share the risk of not prevailing on the claim with his client. Based upon nothing more than a lack of evidence that the appellant spent an “inordinate” amount of time on this matter, the Board determined that the appellant’s fee should be reduced to 20% of the past-due benefits awarded. In doing so, the Board erred.
There is simply no basis in the record for the Board’s reduction of the appellant’s fee from 30% to 20%. On the contrary, as the Board explained in support of its decision not to reduce the 20% fee even lower, several of the 38 C.F.R. § 20.609(e) factors actually support the conclusion that the appellant’s 30% contingency fee is not “excessive and unreasonable,” e.g., the case was complex; the attorney was quite competent; he achieved a great deal of success for his client; and the amount awarded was a very large sum. See R. at 8. Moreover, the payment of fees was entirely “contingent upon the results achieved.” See 38 C.F.R. § 20.609(e)(8). Therefore, pursuant to 38 U.S.C. § 7263, the Court holds on de novo review that the 30% contingency fee contemplated by the fee agreement entered into by the appellant and his client is not “excessive or unreasonable.” See In re Vernon, supra. Accordingly, the April 6, 1999, decision of the Board will be and is reversed to the extent that it reduced the appellant’s fee below the 30% of past-due benefits called for in the fee agreement. See 38 U.S.C. § 7252(a). Although the Board, like the Court, is vested with the power to review fee agreements, the Court trusts that the Board will in the future exercise its authority judiciously, with attention to the seriousness of the intrusion that such a review entails and full notice to all concerned, and “only upon the invitation of the parties or where the fee agreement is patently unreasonable.” See Lewis, 5 Vet.App. at 154; see also Nagler, supra.
V. CONCLUSION
Upon consideration of the foregoing, the April 6, 1999, decision of the Board is AFFIRMED IN PART and REVERSED IN PART.
Concurrence in Part
concurring in part and dissenting in part:
I concur in the Court’s affirmance of the April 6, 1999, decision of the Board of Veterans’ Appeals (Board or BVA) as to whether or not there should be an offset of
I. Deficient Court Processes
First, the Court either glosses over or ignores entirely a number of important issues (for example, the analysis of pertinent analogous authority, such as the attorney-fee jurisprudence in the federal courts pertaining to the EAJA and Social Security Act (SSA)) that should be part of the basis for judicial decisionmaking in this case. The absence of such an approach is particularly regrettable when the Court is sitting en banc. Equally deficient is the process of the majority here in issuing an en banc opinion that overrules past precedent (1) without briefing from the parties (including possible amicus curiae) on whether that precedent should be abandoned and on certain issues not addressed in the opinion; (2) without en banc oral argument; and (3) without a conference of the full Court.
II. Merits
On the merits, I will outline first the nature of the appellant’s representation of the veteran in the proceedings before a
A. Introduction
Before turning to the analysis of these two issues, however, I want to express my concern that the majority opinion is more an exercise in policymaking, that is, in judicial legislation, than judicial review of policies established by the popularly-elected and therefore publicly accountable legislative and executive branches. I reach this conclusion because the majority appears to be intent, without any exploration of what may have been the underlying legislative intent, on reaching a one-size-fits-all holding as to EAJA offset, despite the recent incantation by three of the four majority judges that the Court should decide cases on “the narrowest possible grounds”;
B. Background
At the outset, I will set forth the facts of this case, which, in the main, the majority opinion does not set forth to the extent that I believe is necessary to decide the reasonableness and offset issues, discussed in parts II.C. and II.D., below.
It is in the context of the foregoing facts about the merits litigation and adjudication and the attorney’s representation before the Court and VA that this appeal should be decided.
C. BVA Decision on Unreasonableness of 30% Contingency Fee
1. Jurisdiction of the Court
In this case, the majority does not predicate its jurisdiction upon a Notice of Disagreement (NOD).
2. Fair Process
Assuming that the Court has jurisdiction to review the Board decision on appeal, I would vacate the Board decision on the reasonableness of the 30% contingency fee and remand this matter on a pure fair-process ground. The majority notes that “[o]n the record before the Court, at no time was the appellant advised that the fee agreement was going to be reviewed for reasonableness of the. 30% contingency fee.” Ante at 77. Notwithstanding the Court’s implicit recognition that the Board’s decision to reduce the 30% contingency attorney fee in this case was made without the attorney’s being afforded adequate notice on that issue,
3. Merits of Board’s Reduction
Although I would not reach this issue because I would vacate for consideration of the fairness of the process (again, assuming Court jurisdiction over the merits), the majority does reach this issue — albeit prematurely — and reverses the Board’s decision reducing the attorney’s contingency fee from 30% to 20%. I believe that this result is plainly and demonstrably wrong. The facts outlined in part II.B., above, illustrate that the following conclusion in the Court’s opinion dramatically overstates the quality and effect of the attorney’s representation:
[Sleveral of the 38 C.F.R. § 20.609(e) [ (2000) ] factors actually support the conclusion that the appellant’s 30% contingency fee is not “excessive and unreasonable,” e.g., the case was complex; the attorney was quite competent; [and] he achieved a great deal of success for his client....
Ante at 79 (emphasis added). That outline of the facts shows very clearly that a reduction of the 30% fee is not only reasonable (albeit essentially not for the reasons stated by the Board) but is required under VA’s regulation.
In this regard, the Court’s analysis not only fails to consider adequately each of the factors set forth in the VA regulation but fails to consider at all the VJRA legislative history in terms of fee-reasonableness review and the factors that federal courts have prescribed for assessing the reasonableness of contingency-fee agreements in Social Security cases, where a court may order that a fee up to 25% be paid out of a past-due benefits award.
Deductions should generally fall into two categories: 1) those occasioned by improper conduct or ineffectiveness of counsel; and 2) situations in which counsel would enjoy a windfall because of either an inordinately large benefit award or from minimal effort expended.
Rodriquez v. Bowen, 865 F.2d 739, 746 (6th Cir.1989) (en banc) (emphasis added).
It seems almost impossible to believe that Congress intended the extraordinary “reasonableness” review, authorized to be conducted by the BVA and this Court to protect veterans — even if they do not request such protection — to be any less comprehensive than the provision to protect Social Security recipients on which the contingent-fee provisions of section 5904(d) were generally modeled in 1988.
Because the grounds stated by the majority (relating to the case’s complexity, the competency of the attorney’s work, and the success that he achieved) are without foundation on the facts of this case, the only remaining basis under YA’s regulation (20 C.F.R. § 20.609(e)(8)) for
Furthermore, this is exactly the kind of case for which I believe that a BVA sua sponte review under 38 U.S.C. § 5904(c)(2) was designed, in order to protect a VA claimant.
Finally, I want to stress that I would not deprive the appellant of a reasonable attorney fee despite the foregoing analysis of the nature of the representation provided before the Board. Under VA regulations, a 20% contingency fee is generally presumed to be reasonable (38 C.F.R. § 20.609(f) (2000)). I agree with the majority that it is endemic in the nature of contingency agreements that an “attorney taking a case on a contingent basis may earn a large fee for a very few hours; however, that same attorney also takes the risk that he will receive no fee, regardless of the number of hours spent on a case.” Ante at 79. On the facts of this case, the 20% fee, giving due regard to its contingent nature, certainly provides adequate recompense for the nature and extent of the representation that the appellant provided before the Board.
4. Basis for Reversal
A concluding jurisdictional matter: I am concerned about the Court’s stating that its reversal of the Board’s 30%-to-20% reduction is made “pursuant to 38 U.S.C. § 7263” (ante at 79), rather then the Court’s reversing the Board under section 7252(a). I cannot find in section 7263 any authority for the Court to reverse. Rather, section 7263(d) seems to authorize the Court only to “affirm the finding or order of the Board” or to “order a reduction in the fee called for in the fee called for in the agreement”.
D. EAJA Offsetl“Same Work”
As to the majority’s concern about our prior caselaw on the offset question, I would, as noted in part H.A., above, prefer that the Court adhere to a full adversarial process with the participation of the parties before the Court overrules our prior precedent. However, I do tend to agree with the Court that the sentences that it quotes from Fritz v. West, 13 Vet.App. 190, 194 (1999), ante at 74-75 — the first reference as a characterization of Shaw v. Gober, 10 Vet.App. 498 (1997) — that seemed to draw the line at the attorney’s work involving “obtaining more relief from the Department than what the appellant received from the Court” may be overbroad and should be reexamined. However, the analysis should proceed from an allocation of the hours worked by the attorney between Court and VA representation, as I now tend to believe was correctly argued by the Secretary in Fritz, supra, and, if that allocation does not result in a total offset, only then must a comparison be made of the “work” done at the two stages to see if it is essentially “the same” — as my analysis will show that it clearly was here.
The majority, instead, chooses to adopt a one-size-fits-all holding “that the representation of a claimant in pursuit of a claim at all stages of the adjudication pro
It is especially problematic, therefore, that the Court’s opinion eschews any analysis of the nature of the actual work performed by the attorney before the Court in comparison to the work performed before the BVA and merely, ipse dixit, declares them “the same” as a matter of law “for the purposes of EAJA” because the work here and below relate to the “same claim”. Ante at 72. This conclusion seems to me to read “same work” out of the statute; that is, the result reached would be the same if Congress had just provided for an offset whenever EAJA fees are awarded and a contingency fee is paid in connection with the same claim. But the statute does not say that. Moreover, Congress did not say that in the virtually identical SSA language enacted in 1985 in the EAJA extension and amendments in which section 3 expressly prohibited “the claimant’s attorney [from] re-ceiv[ing] fees for the same work under both [SSA direct-payment provision from a past-due award] ... and [the EAJA unless] ... the claimant’s attorney refunds to the claimant the amount of the smaller fee.”
The opinion’s principal stated justification for the interpretive leap of equating “same work” with “same claim” seems to be a citation to Brown v. Gardner,
Nevertheless, I do tend to agree with the Court’s conclusion as to offset here and that generally EAJA fees should be offset when only a remand is won here. Hence, I believe that the fee-agreement provision in question is invalid in that it attempts to make a blanket offset applicable to every non award remand and that such a blanket approach violates FCAA § 506(c), which, I believe, calls for a fact-specific comparison in each case.
. Such a fact-based analysis would accomplish the result that the majority apparently seeks, but would do so with out resorting to a one-size-fits-all holding. That holding is counterintuitive because there are clearly fact circumstances where the work before the Board or RO will not be “the same” as the work before the Court (such as when the attorney argues only for a reasons-or-bases or duty-to-assist remand here and does entirely different work below in arguing as to the weighing of the evidence before VA on remand, perhaps most clearly illustrated where the application of the duty to assist on remand results in new medical evidence that could not have been part of the argument in the Court but must be argued from on remand).
Again, I stress that the one-size-fits-all holding laid down by the majority is largely unnecessary to achieve the policy result that the majority apparently seeks (of not letting attorneys — by virtue of cleverly drafted fee agreements — escape offset, i.e., recover double payment for the same work).
III. Conclusion
For the foregoing reasons, I am unable to join in the opinion of the Court, although I agree generally with the result reached on the facts of this case on the EAJA-offset question. As to the Board’s decision reducing the 30% contingency fee to 20%, I disagree with the Court’s reversal of that portion of the Board decision.
."If en banc consideration or review is ordered, the Chief Judge .... usually convenes a conference or directs the Clerk to schedule oral argument.” U.S. Vet.App. Internal Operating Procedures V.(a)(4); see Morton v. West, 13 Vet.App. 205, 213 (1999) (en banc order) (Steinberg and Kramer, J.J., dissenting from denial of en banc consideration) (admonishing "that the Court should have the benefit of full briefing from the Secretary and appellants' advocates and full oral argument before deciding the knotty questions involved in this case”); Laruan v. West, 11 Vet.App. 80, 91 (1998) (en banc) (Kramer and Steinberg, J.J., concurring in part and dissenting in part) (noting that "the majority inexplicably renders its wisdom without benefit of a conference of the judges, briefing, or oral argument”); see also Meeks v. West, 13 Vet.App. 40, 41-48 (1999) (en banc order) (Steinberg and Kramer, J.J., dissenting from prior revoked order denying en banc consideration) (protesting panel opinion’s "failure to set forth a reasoned analysis”).
. See Morton and Laruan, both supra note 1; Bailey v. Gober, 10 Vet.App. 454, 456 (1997) (en banc order) (Steinberg, J., dissenting) ("I would prefer to receive full briefing ... at this point”), rev’d, Bailey v. West, 160 F.3d 1360 (Fed.Cir.1998) (en banc); In re Motion of Smith, 7 Vet.App. 89, 95 (1994) (en banc order) (Steinberg, J., dissenting) ("By deciding this case ‘without benefit of oral argument and full briefing, ... this Court runs a great risk of rendering erroneous or ill-advised decisions that may confuse [the Department of Veterans Affairs (VA) and the Court's bar]: there is no reason to believe that this Court is immune from making mistakes, particularly under these kinds of circumstances.’ Allen v. Hardy, 478 U.S. 255, 261-62, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) (Marshall and Stevens, JJ., dissenting) (quoting Harris v. Rivera, 454 U.S. 339, 349, 102 S.Ct. 460, 70 L.Ed.2d 530 (1981) (Marshall, J., dissenting)).”).
. See also Bailey v. West, supra note 2.
. Best v. Principi, 15 Vet.App. 18 at 19 (2001) (per curiam order). But see Mahl v. Principi, 15 Vet.App. 37, 44-46 (2001) (Steinberg, J., dissenting) (pointing out that Court has never followed practice of deciding cases on "the narrowest possible grounds”).
. See Veterans Claims Assistance Act of 2000, Pub.L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA); Explanatory Statement of Committees on Veterans’ Affairs on VCAA (Background), 146 Cong. Rec. H9913 (daily ed. Oct. 17, 2000) (expressly disapproving of this Court’s opinion in Morton v. West, 12 Vet.App. 477 (1999), remanded on other grounds, 243 F.3d 557 (Fed.Cir.2000) (table)); H.R.Rep. No. 106-781, 106th Cong., 2d Sess. 11 (July 24, 2000), U.S.Code Cong. & Admin.News 2000, 2006, 2014 ("Committee’s intent is to overrule that portion of the decision in Morton that found an implied limitation on VA's authority to provide assistance to claimants who had not submitted ‘well-grounded’ claims”); S.Rep. No. 106-397, 106th Cong., 2d Sess. 72 (Sept. 6, 2000) ("Committee bill ... modifies the pertinent statutes to reinstate VA's traditional practice of assisting veterans at the beginning of the claims process”); see also D'Amico v. West, 209 F.3d 1322, 1327 (Fed.Cir.2000) (overruling Laruan, supra note 1, and noting that in Laman this "[CJourt did not rely on any statutes or regulations to support its position” and "cited the legislative history” pertinent to the statutes at issue there notwithstanding that "no statement in the legislative history support[ed] the court's interpretation of those sections”).
. It is apparent that the Board so concluded. See Record (R.) at 114 (1998 Board of Veterans' Appeals (Board or BVA) decision stating that the question before it was "whether the ... failure [by a VA regional office (RO) ] to consider or follow applicable regulations in its May 1981 rating decision constituted] clear and unmistakable error (CUE)”); Tobler v. Derwinski, 2 Vet.App. 8 (1991). The joint motion for remand stated:
Because the veteran was sound before service, was diagnosed with a disorder in service, and had symptoms of a nervous condition beginning in service and continuing after discharge, he could have been eligible for service connection in accordance with 38 C.F.R. §§ 3.303(a), (b) and 3.304(b) (1980).
However, the May 1981 rating decision did not apply any of these regulations. This Court has ruled that an RO has “undebat-ably committed error” when it "fail[ed] to follow an applicable regulation” and when it “in effect [denied] the existence of evidence that did indeed exist and was a part of the claims file.” Russell, 3 Vet.App. [310,] 319 [(1992) (en banc)]. Whether such error constitutes clear and unmistakable error as contemplated in 38 C.F.R. § 3.105(a) is a matter for the Board, not the Court, to determine. Russell [3 Vet.App.] at 320.
Accordingly, this case should be remanded to allow the BVA to consider all the relevant regulations and determine whether the regional office’s failure to consider or follow applicable regulations in its May 1981 rating decision constitutes clear and unmistakable error.
R. at 101-02 (emphasis added). The motion's citation to the two-step approach adopted in Russell demonstrates that, in granting the joint motion, the Court was determining in the words of Russell, that "the RO undebat-ably committed error ... in failing to follow an applicable regulation”, id. at 319, and that it was "a task for the Board in the first instance .... to determine whether the error made by the RO in 19 [81] was a 'clear and unmistakable error’ under 38 C.F.R. § 3.105(a)”, that is, whether "correction of the error would have [manifestly] changed the outcome”, id. at 320.
. See Russell, 3 Vet.App. at 313-14 (holding that CUE is "the sort of error which, had it not been made, would have manifestly changed the outcome”); see also Bustos v. West, 179 F.3d 1378, 1380 (Fed.Cir.1999) (expressly adopting the "manifestly changed the outcome” language in Russell, supra ), cert. denied, 528 U.S. 967, 120 S.Ct. 405, 145 L.Ed.2d 315 (1999).
. Russell, supra note 7.
. See 38 U.S.C. § 1112(a)(1) (presumption of service connection for "chronic disease becoming manifest to a degree of 10 percent or more within one year from the date of separation from ... service"); 38 C.F.R. § 3.309(a) (1980) (defining "psychoses” as chronic diseases for purposes of section 1112).
. In general, the Court has jurisdiction to review a final BVA decision only where a Notice of Disagreement (NOD) was filed under 38 U.S.C. § 7105 on or after November 18, 1988, as to the underlying decision of an agency of original jurisdiction, usually an RO. See Veterans’ Judicial Review Act, Pub.L. No. 100-687 § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note) [hereinafter VJRA § 402]; Velez v. West, 11 Vet.App. 148, 157 (1998) ("Court has no jurisdiction over an issue absent a post-November [17], 1988, NOD, expressing disagreement with an RO's decision on that issue or with an RO’s failure to adjudicate that [issue]”); see also Barrera v. Gober, 122 F.3d 1030, 1031 (Fed.Cir.1997); Grantham v. Brown, 114 F.3d 1156, 1157 (Fed.Cir.1997). Generally, an NOD "shall be filed within one year from the date of mailing of notice of the result of initial review or determination” with which it is disagreeing. 38 U.S.C. § 7105(b)(1).
. The issue was avoided in In the Matter of the Fee Agreement of Mason (Fee Agreement of Mason ), 13 Vet.App. 79 (1999), in the context of an appeal to the Court from a BVA decision that had been issued on the basis of a sua sponte BVA review of a direct-payment fee agreement carried out under 38 U.S.C. §§ 5904(c)(2) and (d).
. See supra note 10.
. Such a holding could be based on the doctrine that the law does not require the impossible because there generally could not be a decision of an RO as to which an NOD could be filed to initiate an appeal to the Board when the Board itself undertakes sua sponte review of a fee agreement under 38 U.S.C. § 5904(c)(2), unless the Court were to require that before the BVA would have the authority to undertake such review it would have to refer the issue of eligibility to an RO
. Related to this jurisdictional inquiry is one as to the jurisdiction of the Board to address in the first instance the question of the appellant’s eligibility, on the facts of this case, to receive a contingency fee under the non-direct-payment fee agreement here involved. R. at 4 (BVA finding that "the criteria for charging and being paid a fee in this case have been met”). Under Cox, 149 F.3d at 1364, which held that "section 5904(c)(2) only gives the Board limited jurisdiction to review the reasonableness of a fee and to reduce the fee”, it appears that the Board had no jurisdiction over that issue.
. See ante at 79 (calling for "full notice to all concerned” before fee agreements are reviewed by the Board); cf. Thurber v. Brown, 5 Vet.App. 119, 126 (1993) (discussing due process in terms of, inter alia, U.S. Constitu
. See Maggitt v. West, 202 F.3d 1370, 1377 (Fed.Cir.2000) (although this Court “may hear legal arguments raised for the first time with regard to a claim that is properly before the [Cjourt, it is not compelled to do so in every instance”). I note in this regard that the appellant did present a December 11, 1998, letter to the Board that defended the reasonableness of the 30% fee. R. at 146-48. Although the Board's November 17, 1998, letter had notified the appellant only that the fee agreement would be reviewed by the BVA because of its failure to provide for an offset of the contingent fee by any fee awarded under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(2)(F), any deficient notice might have been cured by the opportunity that the appellant took, sua sponte, to present a defense of the 30% fee.
. The Court's willingness to finesse this issue further suggests an eagerness to reach the merits of the reasonableness issue and render a policy admonition to the Board. See part II.A., above.
. That regulation, 38 C.F.R. § 20.609(e) (2000), provides:
(e) Pees permitted. Fees permitted for services of an attorney-at-law or agent admitted to practice before the Department of Veterans Affairs must be reasonable. They may be based on a fixed fee, hourly rate, a percentage of benefits recovered, or a combination of such bases. Factors considered in determining whether fees are reasonable include:
(1) The extent and type of services the representative performed;
(2) The complexity of the case;
(3) The level of skill and competence required of the representative in giving the services;
*86 (4) The amount of time the representative spent on the case;
(5) The results the representative achieved, including the amount of any benefits recovered;
(6) The level of review to which the claim was taken and the level of the review at which the representative was retained;
(7) Rates charged by other representatives for similar services; and
(8) Whether, and to what extent, the payment of fees is contingent upon the results achieved.
. See supra notes 6 and 7.
. In addition, as to whether the appellant could, after a decision reducing his fee to 20%, claim that he seeks 30% solely for representation before the Court pursuant to Fee Agreement of Mason, supra note 11, I hazard no view. I note, however, that (1) under paragraph 3 of the fee agreement, quoted ante at 68, it is not clear that the past-due benefits were awarded "on the basis of the client’s claim” (because CUE was found on an entirely different theory) and (2) a fee-agreement "reasonableness” review could still be undertaken by the Board, which in its decision on appeal purported to consider all representation provided "between the final Board decision in December 1997 and the August 1998 Board decision” (R. at 7). I further note that the appellant stated in his December 11, 1998, letter to the Board: "The Court action did not result in an award of past[-]due benefits. Therefore, under the terms of the fee agreement, no fee was due and owing, or otherwise payable, by Mr. Weatherspoon for the work performed at the Court in order to secure a remand.” R. at 148. In any event, that is not a matter presently before us.
.Section 206(b)(1) of the Social Security Act provides, in pertinent part:
Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security may, notwithstanding the provisions of section 405(i) of this title, but subject to subsection (d) of this section, certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits.
. The factors described by the en banc U.S. Court of Appeals for the Sixth Circuit in Rodriquez v. Bowen, 865 F.2d 739, 746 (6th Cir.1989) (en banc), seem to be representative of those that are generally applied in other jurisdictions as well. See, e.g., Wells v. Sullivan, 907 F.2d 367, 372 (2d Cir.1990); McGuire v. Sullivan, 873 F.2d 974, 981-83 (7th Cir.1989); Hull v. Bowen, 748 F.Supp. 514, 522 (N.D.Ohio 1990); see also Cotter v. Bowen, 879 F.2d 359, 363 (8th Cir.1989) (adopting lodestar hourly-rate analysis, an approach more restrictive than Rodriquez).
. S. Rep. No. 100-418, 100th Cong., 2d Sess. 67 (Jul. 7, 1988) (noting that contingency-fee provision is “similar to that provided for in section 206(a) of the Social Security Act (42 U.S.C. [§ ] 406(a))”).
. See, e.g., Wells, 907 F.2d at 372 (court "ought not blindly approve every fee request made pursuant to a contingent agreement” and “should ... consider ... whether the requested amount is so large as to be a windfall to the attorney” (citing Rodriquez, infra )); McGuire, 873 F.2d at 981 ("court should consider the reasonableness of the contingency percentage to make sure the attorney does not receive fees which are out of proportion to the service performed, the risk of loss[,] and the other relevant considerations”); id. at 982 (“we do not propose a blind approval of contingency fees”); Cotter, 879 F.2d at 365 (although “contingent fee agreement ... must also be considered as a factor in determining a reasonable fee’ ... [,] we cannot say the district court abused its discretion in holding the lodestar [hourly-rate] fee fully compensated for the contingent nature of the fee agreement in this case” (citations omitted) (emphasis added)); Rodriquez, 865 F.2d at 747 ("due deference should be given to th[e] expression of the intentions of the parties [contained in a fee agreement;] ... [h]owever ... a court is not bound to award recovery according to the stated agreement”).
. See cases cited supra note 24. See generally J.F. Ghent, Construction and application of attorney's fee provision (42 U.S.C.A. § 406(b)(1)) of Federal Social Security Act, 22 A.L.R.3d 1081 (1968 & Suppl.2000). In view of the foregoing, I believe that there is a need for thorough research on this subject, which is still another reason why this case should not have been decided without further briefing and oral argument before the full Court.
. See supra note 18. In describing the fee-agreement review process included in the VJRA compromise agreement, Senator Cran-ston stated:
In our meetings to resolve the differences between the Senate-passed and House-passed versions of S. 11, the House committee expressed concern that the cap as articulated in the Senate bill could result in veterans being able to retain effective counsel. To quote an old cliche: "You get what you pay for." Certainly, if we are going to give veterans real access to judicial review, we must give them access to good, qualified attorneys. I -believe that allowing attorneys to charge reasonable fees will accomplish that goal and was convinced by the position of the House that its provisions on this point are preferable to the highly restrictive provisions of the Senate-passed measure [limited to a $500 flat fee].
Additionally, I believe that, along with finally granting veterans the right to obtain judicial review, we should grant them as much latitude as possible to make determinations about their representation. I also note that the compromise included provisions that allow either the BVA or the Court of Veterans Appeals to review a fee agreement for “reasonableness”- — either upon a request from a party or on the Board’s or Court’s own initiative. This should provide protection against any overreaching on the part of attorneys.
134 Cong. Rec. S31461, S31469-70 (1988) (emphasis added).
. Although it is true that the client veteran does not challenge the fee and indeed endorses it (R. at 144 (December 1998 letter from veteran)), it is not clear that he has been aware of exactly what the appellant's representation before the RO actually was responsible for achieving.
. 134 Cong. Rec. at S31470.
. Cf. Cox, 149 F.3d at 1364 ("section 5904(c)(2) only gives the Board limited jurisdiction to review the reasonableness of a fee and to reduce the fee” (emphasis added)). In this regard, it is noteworthy that section 7263(d) is very similar to section 5904(c)(2) of title 38, U.S.Code.
. Pub.L. No. 102-572, § 506(c), 106 Stat. 4506, 4513 (1992) (found at 28 U.S.C. § 2412 note). That provision states:
(c) Fee Agreements. — 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.
. Pub.L. No. 99-80, § 3, 99 Stat. 183, 186 (1985) (found at 28 U.S.C. § 2412 note).
. Brown v. Gardner, 513 U.S. 115, 117-18, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994) ("interpretive doubt is to be construed in the veteran's favor”).
. "[W]hen a statute's language is plain, the sole function of the courts — at least where the disposition required by the text is not absurd — is to enforce it according to its terms.” Hartford Underwaters v. Union Planters, 530 U.S. 1, 120 S.Ct. 1942, 1947, 147 L.Ed.2d 1 (2000) (citations and internal quotation marks omitted). "When the words of a statute are unambiguous, ... this first canon is also the last: judicial inquiry is complete.” Connecticut National Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (citations and internal quotation marks omitted). "If .the statute's meaning is clear, we
. Consider the following hypothetical: Representation in the Court of 20 hours results in a duty-to-assist remand for which a $3,000 EAJA award is made. The representation below occurs at the RO and BVA, and, after much development of the evidence and a denial by the RO, results in the award of service connection with a 50% rating (awarded by the RO after the BVA awards service connection). The attorney works 90 hours in the 3 proceedings before VA, and a past-due benefits award of $40,000 is ultimately made. There is a 20% direct-payment fee agreement, and thus there would be a contingency fee of $8,000. How much of the $3,000 EAJA award is to be offset in consideration of the work performed before the Court? If the work performed below is in fact entirely different from the work performed before the Court (as is the case because the litigation involved only whether the Board had failed to require that the duty to assist be properly executed and the work below consisted totally of the development and marshaling of evidence and the argument made from the evidence for the award of service connection and the highest possible rating), then there should be no offset of the $3,000 EAJA fee award. If, however, the attorney had expended 10 hours on the same subject that he had argued to the Court, then one-half of the $3,000 awarded, for 20 hours of work before the Court, would be offset and returned to the client.
. Indeed, this is what the appellant appears to have contended to the Board in his December 11, 1998, letter to the Board, as quoted at the end of note 20, supra.
. See generally Swiney v. Gober, 14 Vet.App. 65, 75 (2000) (awarding EAJA fees for litigating EAJA fee application because amount of "fees for fees” sought was reasonable); McNeely (Allan) v. West, 12 Vet.App. 162, 164 (1999) (same).
. Ante at 75, 77 (referring to "drafting of a fee agreement which might unintentionally or intentionally deprive a veteran of his [sic] rights under the law”; referring to "artfully or inartfully drafted contingency fee agreement which could circumvent the letter and spirit of EAJA”).
.See supra note 4.
Dissenting Opinion
dissenting:
I cannot concur in the majority opinion because it fails to address several requisite issues. Although I am not in agreement with several matters in Judge Steinberg’s
First, the majority holds that the Court has jurisdiction under 38 U.S.C. § 7252(a) to review the reasonableness of a fee agreement under 38 U.S.C. § 7263(d) that the Board of Veterans’ Appeals (BVA or Board) has reviewed sua sponte under 38 U.S.C. § 5904(c)(2). Ante at 72. Pursuant to the Veterans’ Judicial Review Act, Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note) (VJRA), this Court has jurisdiction over only those appeals in which a Notice of Disagreement (NOD) was filed on or after November 18, 1988, as to an action of a VA agency of original jurisdiction (normally a VA regional office (RO)) that underlies the BVA decision that an appellant seeks to appeal. See Velez v. West, 11 Vet.App. 148, 157 (1998). Although Congress has expressly recognized one exception to this NOD requirement, that exception is not applicable in this case. See The Revision of Veterans’ Benefits Decisions Based on Clear and Unmistakable Error Act, Pub.L. No. 105-111, § 1(c)(2), 111 Stat. 2271 (1997) (found at 38 U.S.C. § 7251 note) (notwithstanding VJRA, Court has jurisdiction over claims, pending or filed on or after November 21, 1997, of clear and unmistakable error in BVA decisions pursuant to 38 U.S.C. § 7111). Because the record on appeal in this case contains no jurisdiction-conferring NOD, I believe that there is a legitimate question as to whether this Court in fact does have jurisdiction. The majority appears to allow for jurisdiction here without a jurisdiction-conferring NOD on the ground that the Court has “additional authority” under section 7263(d); Ante at 72. Although the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has stated that section 5904(c)(2) gives the Board limited jurisdiction to review the reasonableness of a fee, see Cox v. West, 149 F.3d 1360, 1364 (Fed.Cir.1998), this Court has never expressly considered whether without any NOD the Court has jurisdiction under section 7263(d) over such a BVA decision. Nor does the majority here address that important jurisdictional matter.
Second, in the BVA decision here on appeal, the Board determined in the first instance that the appellant was eligible under 38 U.S.C. § 5904(c)(1) to receive an attorney fee (Record (R.) at 3-4) and then proceeded to consider the reasonableness of the fee (R. at 4-8). This Court has held that the Board does not have jurisdiction to consider eligibility under 38 U.S.C. § 5904(c)(1) unless an RO has first made that determination. See Carpenter v. Gober, 14 Vet.App. 195 (2000) (per curiam order) (holding that neither Board nor Court has original jurisdiction under section 5904(c)(2) to consider eligibility of appellant for attorney fees), granting mot. for recons, in In the Matter of the Fee Agreement of Carpenter, No. 97-676, 1999 WL 978670 (Vet.App. Oct. 15, 1999). But see In the Matter of the Fee Agreement of Stanley, 10 Vet.App. 104, 105 (1997) (in case where Board had sua sponte raised under 38 U.S.C. § 5904(c)(2) issue of eligibility under 38 U.S.C. § 5904(c)(1), Court stated that Court had jurisdiction under 38 U.S.C. §§ 7263(d) and 7266(a)). In addition, this Court has stated that any review of reasonableness would be premature until eligibility is first determined. See Snyder v. Gober, 14 Vet.App. 154, 167 (2000), mot. for recons, filed (Nov. 13, 2000). Assuming that there is a sequential relationship between eligibility and reasonableness, I believe that before the Court can address reasonableness, it must first address the underlying threshold issue of eligibility. In reaching its decision, howev
Third, I am concerned that the majority, without adequate analysis as to why it is appropriate, appears to reverse the Board in the context of 38 U.S.C. § 7263(d). The Court states that it is reviewing under 38 U.S.C. § 7263(d) the BVA decision that reduced the attorney fees on reasonableness grounds but is reversing that decision under 38 U.S.C. § 7252(a). Ante at 79. Although section 7252(a) provides the Court with the authority to “reverse a decision of the Board,” section 7263(d) provides that “[i]n reviewing a fee agreement ... under section 5904(c)(2), the Court may affirm the finding or order of the Board 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(d). In that regard, the Federal Circuit has clearly stated that the Court’s authority to review fee agreements under section 7263(d) “is strictly limited by the language of the statute.” In the Matter of the Fee Agreement of Wick, 40 F.3d 367, 371 (Fed.Cir.1994) (Fee Agreement of Wick ); cf. Cox, 149 F.3d at 1364 (section 5904(c)(2) provides Board with limited jurisdiction to review reasonableness of fee and to reduce fee).
Fourth, the majority makes a holding that overrules previous Court precedent, see Fritz v. West, 13 Vet.App. 190, 194-95 (1999), as to the meaning of “same work” in the context of whether to offset the attorney fees with the fees awarded under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). As to that offset determination, the majority, in my opinion, fails to provide adequate analysis and legal support for its holding. For example, the majority’s discussion abruptly moves from the terms of the fee agreement to a conclu-sory holding that “same work” means “same claim” without making any connection between the terms and the holding. Ante at 76. Moreover, the majority makes that holding, ostensibly based on the veterans benefits precept that any interpretive doubt as to the meaning of the statute— that is, congressional intent as to “same work” — must be resolved in favor of the veteran, without discussing pertinent legislative history. In that regard, I note that the “same work” language that applies to this Court, see the Federal Courts Administration Act of 1992 (FCAA), Pub.L. No. 102-572, § 506, 106 Stat. 4506, 4513 (1992) (found at 28 U.S.C. § 2412 note), is exactly the same (except for the attorney-fee statutes affected, 38 U.S.C. § 5904(d) versus 42 U.S.C. § 406(b)) as the “same work” language that applies to attorney fees awarded in Social Security Act cases, see the Equal Access to Justice Act, Extension and Amendment, Pub.L. No. 99-80, § 3, 99 Stat. 183, 186 (1985) (found at 28 U.S.C. § 2412 note). The legislative history supporting the “same work” language as to Social Security Act cases provides in pertinent part:
The bill clarifies that an EAJA award in Social Security cases is not precluded by the fee provision in the Social Security Act, 42 U.S.C. § 406(b). The bill also prohibits attorneys from collecting both EAJA fees and § 406(b) fees in the same case. In the situation of dual entitlement, the attorney must refund the amount of the smaller fee to the claimant.
... This provision and related ones, when read together, allow a court or the Secretary to authorize payment of attorney fees and related expenses under the [EAJA], notwithstanding the provisions in the Social Security Act. However, an attorney collecting attorney fees under the EAJA would have to use such fees*95 to reduce the liability, if any remains, of the claimant for any portion of the past-due benefits. Courts and the Secretary would be expected to scrutinize such awards to ensure that the attorney is reducing the liability of the claimant so that the claimant is the primary beneficiary of the EAJA award.
It is the Committee’s intent ... that the EAJA award should be used as a set off to reduce the payment which the claimant would otherwise owe the attorney. Thus, under the amendment an attorney for a Social Security ... claimant would be precluded from receiving both EAJA and Social Security Act fees. Without this amendment it was argued, “double dipping” was possible. Such double payments are inappropriate and deprive[ ] the plaintiff of the benefits intended by EAJA. Because the Committee is aware of the important function served by counsel in these cases, the Committee permits the attorney to seek recovery under both authorizations. The attorney, however, may keep the larger fee, but must return the amount of the smaller fee to the claimant.
H.R.Rep. No. 99-120, Part I, at 7, 19-20 (1985) (Background; Explanatory Statement), reprinted in 1985 U.S.C.C.A.N. 132, 135-36, 148-49. Therefore, although the majority view of offset, assuming it can properly reach that issue, may be correct, see id., I cannot support its conclusory pronouncement. I note also that the majority has not addressed the question of whether the EAJA offset should include any supplemental EAJA awards of fees for fees, see McNeely v. West, 12 Vet.App. 162, 163-64 (1999) (per curiam order) (courts are “permitted to allow payment for time spent litigating the fee applications”).
Fifth, in determining error in the BVA reduction of the contingent attorney fee from 30% to 20%, the majority - has not addressed fully either the applicable VA regulation, 38 C.F.R. § 20.609(e) (2000), or all of the pertinent facts of this case. Section 20.609(e) includes eight factors to be considered in determining whether fees are reasonable. In rendering its opinion, the majority addresses only four of those eight; the majority fails to consider other appropriate factors, see ante at 79, such as “[t]he extent and type of services the representative performed,” “the amount of time the representative spent on the case,” and “[r]ates charged by other representatives for similar services,” 38 C.F.R. § 20.609(e)(1), (4), (7). And, in determining that “the case was complex; the attorney was quite competent; [and] he achieved a great deal of success for his client,” the majority fails to consider that the Board found clear and unmistakable error (as the basis of its award) on a basis other than that which the appellant had argued (compare R. at 101-02 with R. at 120-25), see ante at 79.
Finally, I firmly believe that attorneys make significant contributions to this Court’s review of appeals from BVA decisions. That said, the issues generated by the statutory scheme, through which appellants’ attorneys are compensated, over time have become increasingly complex and have resulted in a substantial degree of confusion. See 28 U.S.C. § 2412(d); 38 U.S.C. §§ 5904, 7263(c), (d); FCAA § 506; VJRA §§ 402, 403. That complexity and confusion have caused the Federal Circuit, this Court, and VA, as well as the appellants’ attorneys themselves, to devote an inordinate amount of time and resources to litigating these issues. Accordingly, as may be obvious from the following cases and the extraordinary judicial history of some of them (seven of the ten cases are still pending either on appeal before the