In re the Fee Agreement of Cox
This case is before the Court, in the main, on an October 27, 1995, petition by an attorney seeking extraordinary relief in the form of an order that the Board of Veterans’ Appeals (BVA or Board) issue a final decision on his claim to entitlement — under
I. Procedural History and Facts
Pursuant to a December 10, 1991, attorney-fee agreement, a veteran retained the petitioner, attorney Hugh D. Cox, to represent him in a claim for VA benefits and promised to pay the petitioner 20% of any past-due benefits that VA awarded. Petition [hereinafter Pet.] at Exhibit (Ex.) A; Answer to Pet. for Extraordinary Relief [hereinafter Ans.] at Ex. 8; see also In re Fee Agreement of Cox, No. 95-1068,
I ... instruct the VA, VARO, DVA, BVA, COVA [this Court], or other court to set aside one fifth (20 percent) of any such benefits I (or my family) receive after my attorney has been successful in recovering such past due benefits for the purpose of paying attorney’s fees. I understand that my contract with my attorney is to pay him the amount of twenty percent of past due benefits which will be set aside by the VA, VARO, BVA, COVA or other courts for such payment.
Ibid.; Pet. at Ex. A. On October 20,1992, the VARO awarded the veteran a 100% rating on his reopened claim (Ans. at Ex. 9); on October 30, 1992, the RO so notified the veteran (Ans. at Ex. 10); and on October 30, 1992, VA made payment of all past-due benefits directly to the veteran (Ans. at Ex. 11).
In a November 3,1992, letter, the petitioner advised the RO that his client had informed him of communications relating to the claim and that the petitioner had received no copies of these communications; he asked the RO to assist in recovering his fee. Pet. at Ex. C; Ans. at Ex. 12. In a December 4, 1992, letter, the RO informed the petitioner of the total award to the veteran ($37,408.00) and the petitioner’s resultant 20% fee ($7,481.60); the RO explained:
We have reviewed this case and find that you are entitled to a fee of 1/5 of past due benefits____
Since this case was not referred to the [BVA] the award procedure did not include consideration for payment of attorney fees. Payment was made to the claimant and the VA will be unable to pay your fee from past due benefits as these benefits have already been disbursed. We regret the error but any adjustment of the fee must be arranged between you and [the veteran]. We will inform [him] of our error and the fee that is payable to you.
Pet. at Ex. B; Ans. at Ex. 13.
On January 11,1993, the petitioner filed in this Court a petition for extraordinary relief seeking a writ of mandamus to compel the Secretary to show cause why he should not immediately pay the fees due the petitioner. Pet. at Ex. D; Ans. at Ex. 15. A February 23, 1993, order of this Court consolidated that petition with two other like petitions, and the Court thereafter held that, because this petitioner “did not represent an appellant before this Court and the agreement was not reviewed by the BVA, we lack jurisdiction ...” over his claim under
The petitioner then filed with the BVA an April 1993 motion seeking payment of attorney fees. Pet. at Ex. F; Ans. at Ex. 17. In a May 7, 1993, letter, counsel to the BVA Chairman responded that the BVA would not act on the motion pending resolution of the appeal in In re Wick, which, by then, had been appealed to the U.S. Court of Appeals for the Federal Circuit; the letter further stated: “Your ‘motion for payment of attorney’s fees’ does not meet the requirements of a motion for review of a fee agreement under
I have found no authority that would allow the Board to issue an order compelling the RO to pay a fee to an attorney when the elient/elaimant had received all the past-due benefits awarded. Indeed, in a 1992 precedent opinion of the VA General Counsel (O.G.C.Prec.27-92), it was held that because of the prohibition in38 U.S.C. § 5904 [d] against the withholding of benefits payable after the date of the decision awarding past-due benefits for the purpose of paying attorney fees, VA has no legal authority to pay attorney fees when payment of the complete amount of past-due benefits has been made to the claimant.
Pet. at Ex. I; Ans. at Ex. 22. In an April 20, 1995, letter, the RO similarly informed the petitioner that, in light of the Federal Circuit’s reversal in In re Wick and O.G.C. Prec 27-92, it was unable to create an overpayment against the veteran. Pet. at Ex. H; Ans. at Ex. 20.
In a June 23, 1995, motion directed to the BVA, the petitioner, for the stated purpose of providing himself with a basis for an appeal to this Court, requested a final decision from the BVA related to payment or nonpayment of attorney fees in his ease. Pet. at Ex. J; Ans. at Ex. 23. The BVA Deputy Vice Chairman denied that motion in an August 31,1995, letter concluding: “[T]he Board has no authority to order the regional office to pay a fee to an attorney in the circumstances of this case.” Pet. at Ex. K; Ans. at Ex. 24.
This case is now before the Court on an October 27, 1995, petition for extraordinary relief and a separate NOA. That petition seeks a Court order compelling a final decision by the BVA on the issue of payment of attorney fees or the payment of those attorney fees to the petitioner by VA; the petition also requests sanctions against VA pursuant to
II. Analysis
A. Introduction
To the extent that past-due benefits are awarded in any proceeding before the Secretary, the [BVA], or the United States Court of Veterans Appeals, the Secretary may direct that payment of any attorney’s fee under a fee arrangement [complying with the other provisions ofsection 5904 ] ... be made out of such past-due benefits.
The amendment to section [5904](e) of title 38, United States Code, made by section 104(a) shall apply only with respect to services of agents and attorneys in cases in which a notice of disagreement is filed with the [VA] on or after the date of the enactment of this division [Division A of the VJRA],
VJRA, § 403,
The VA regulation,
As an initial matter, it is clear that the petitioner’s claim, in premise, satisfies the requirements of
There is, then, no dispute about what should have taken place and about the fact that the petitioner was entitled to direct pay•ment by the Secretary of the full $7,481.60. The only reason we are here considering this matter at this late date and at this stage in the proceedings is because of the Secretary’s admitted error in not making that payment.
Nevertheless, as the Federal Circuit emphasized in In re Wick, the Court has jurisdiction to review VA adjudicative actions only under
B. AWA Authority
Hence, the only matters before the Court are those raised by the petition for extraordinary relief, and that petition implicitly raises the following three questions: (1) Does the Court have the power, pursuant to the All Writs Act (AWA),
The AWA provides: “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
Indeed, the Court’s enabling legislation quite clearly contemplates the Court’s issuance of writs. See
Athough the Secretary has specifically chosen not to contest the Court’s authority to issue a writ of mandamus in this case, see Ans. at 5, the Court takes judicial notice of the fact that the Secretary has sometimes, in his pleadings before this Court, argued vigorously that the Court lacks such authority. See, e.g., Respondent’s Memorandum of Law in Ruger v. Brown, No. 94-681 (memorandum filed Oct. 3,1994). The Secretary there contended: “While literally the All Writs Act applies to ‘courts established by Act of Congress,’ logically the Act applies solely to those courts which have inherent powers derived from the Constitution.” Id. at 2-3. The Secretary cites to Northern Pipeline Constr. Co. v. Marathon Pipe Line Co.,
1. Other Court Caselaw. Neither the Federal Circuit nor the Supreme Court has, thus far, supplied any direct precedent to confirm or reject this Court’s conclusion that it possesses AWA authority. In the only
The Secretary’s position that Article I courts have been found not to possess the inherent powers of Article III courts does have some support. See Northern Pipeline Const., supra (Article I courts cannot be given the plenary powers of Article III courts); In re United States,
2. Plain Meaning of AWA. As an initial matter, the Court notes that “all federal courts, except the Supreme Court, are established by Congress”. In re United States,
3. AWA as Specific Statutory Authority. Although the foregoing analysis should end the matter, because this Court is an Article I court the question may remain whether, if this Court requires a “specific” grant of AWA authority, that specificity has been satisfied. The Court could appropriately conclude that the AWA itself is that specific act of Congress whereby, through use of the word “all”, Congress sweeps into its grant of AWA authority all courts established by federal law, both those Article III courts pos
As to conclusions (1) and (2), this Court will not infer such an obligation where “ah” makes the meaning of the statute plain, see Gardner v. Brown,
Finally, the Court notes again that its enabling legislation specifically contemplates in two places the issuance of writs by the Court. See
4. Other Specific Authority. However, even if the Court were to conclude that the AWA is not itself a specific grant to the Court of the authority therein, the Court nevertheless possesses AWA authority pursuant to the specific grant in
5. Circumstances Justifying AWA Writ. Ultimately, even where a court possesses the authority to issue a writ of mandamus, that remedy “is a drastic one, to be invoked only in extraordinary situations.” Kerr v. U.S. Dist. Ct.,
The court will not interfere by mandamus with the executive officers of the Government in the exercise of their ordinary official duties, even where those duties require an interpretation of the law, the court having no appellate power for that purpose; but when they refuse to act in a case at all, ... a mandamus may be issued to compel them.
United States v. Black,
C. Jurisdiction over Petition for Writ Ordering BVA to Issue Final Board Decision and Petitioner’s Right to Writ
Even though the Court is empowered pursuant to the AWA to issue a writ of mandamus, the question remains whether the Court possesses jurisdiction to issue a writ ordering the BVA to issue the final, appealable decision sought by the petitioner in this ease.
1. In Aid of Prospective Jurisdiction. The Court has jurisdiction to review a final BVA decision only where an NOD was filed on or after November 18,1988, as to the underlying RO decision. See VJRA § 402. In the instant case, it is true that there is no BVA decision for the Court to review; however, the Court is not here concerned with the direct appeal of a BVA decision but with the petitioner’s right to a BVA decision that would confer upon this Court jurisdiction to review the legal conclusion underlying the BVA’s refusal to issue such a decision. As the following discussion demonstrates, jurisdiction to issue a writ of mandamus pursuant to the AWA relies upon not actual jurisdiction but potential jurisdiction. In other words, the Court’s jurisdiction to issue the order sought by the petitioner depends upon whether the Court would have jurisdiction to review the final BVA decision that would issue pursuant to that order. As the Supreme Court has held:
As the jurisdiction of the circuit court of appeals is exclusively appellate, its authority to issue writs of mandamus is restricted*371 by statute to those cases in which the writ is in aid of that jurisdiction. Its authority is not confined to the issuance of writs in aid of jurisdiction already acquired by appeal but extends to those eases which are within its appellate jurisdiction although no appeal has been perfected.
Roche v. Evaporated Milk Ass’n,
The U.S. Court of Appeals for the District of Columbia Circuit summarized the applicable AWA law as follows:
[Statutory commitment of review ..., read in conjunction with the [AWA], affords this court jurisdiction over claims of unreasonable Commission delay.... Here, of course, there is no final order— indeed, the lack of a final order is the very gravamen of the petitioner’s complaint. This lack of finality, however, does not automatically preclude our jurisdiction.... [AWA authority] extends to support an ultimate power of review, even though it is not immediately and directly involved.... In other words,section 1651(a) empowers a federal court to issue writs of mandamus necessary to protect its prospective jurisdiction.
Telecommunications Research and Action Ctr.,
As the D.C. Circuit has stated: “Before entertaining the [AWA] application, then, we must identify a jurisdiction that the issuance of the writ might assist.” Christian,
2. Indisputable Right to Writ. The Secretary erroneously argues that, because In re Wick suggests that the Court’s review of a fee agreement under
The Secretary argues that the BVA’s jurisdiction is limited by
The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans.
All questions in a matter which undersection 511(a) of this title is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board.
By its very wording,
In this case, as the discussion in part II. C.3., below, indicates, it appears that there was not a jurisdiction-conferring NOD that would have supplied the Board with jurisdiction to review the petitioner’s claim. However, the Court need not reach a definite conclusion on whether the petitioner has shown an indisputable right to the writ — the first requirement for a writ of mandamus — -because it is clear that the second requirement is not satisfied insofar as the petitioner possesses an adequate alternative means to obtain the relief sought.
3. Alternative Remedy to Obtain Relief. As to the availability of an alternative remedy, although the Secretary has contended that the petitioner has recourse against the veteran for payment of attorney fees, the existence of such an alternative remedy has no bearing upon the petitioner’s entitlement to a final BVA decision on the question of VA’s liability for payment of such fees. See part H.D., below. Nevertheless, for the reasons that follow, the Court concludes that the requirements for the writ are not satisfied in this case because the appellant still possesses adequate alternative means to obtain the relief — an appealable Board decision — he seeks.
a. Appealable RO decisions: In order to determine whether the petitioner has an adequate alternative remedy, we must decide what options have been and presently are open to him to obtain the relief he seeks, and to do that we must start by determining the nature of the RO actions already taken pertaining to this matter. See Tablazon v. Brown,
We have reviewed this case and find that you are entitled to a fee of 1/5 of past due benefits____
Since this case was not referred to the [BVA] the award procedure did not include consideration of payment of attorney fees. Payment was made to the claimant and VA will be unable to pay your fee from past due benefits as these benefits have already been disbursed. We regret the error but any adjustment of the fee must be arranged between you and [the veteran]. We will inform [the veteran] of our error and the fee that is payable to you.
Pet. at Ex H; Ans. at Ex. 13. The 1995 letter, which came after the Federal Circuit’s decision in In re Wick, came to a similar conclusion:
On November 7, 1994, the U.S. Court of Appeals for the Federal Circuit reversed the CVA decision in Wick v. Brown,40 F.3d 367 (Fed.Cir.1994), finding that the CVA lacked jurisdiction to review Mr.*374 Wick’s petition to compel VA to pay attorney fees.
Under the circumstances, we are constrained to follow a 1992 precedent opinion of the VA General Counsel (O.G.C.Prec.2792) in which it was held that VA has no legal authority to pay attorney fees when payment of the complete amount of past-due benefits has been made to the claimant.
Pet. at Ex. H; Ans. at Ex. 20.
In the normal course of VA adjudication, a claimant who wishes to appeal an adverse RO decision files an NOD and then, after the RO has filed a SOC, perfects an appeal to the Board by filing a VA Form 9 (Substantive Appeal to BVA). See Grantham,
The Court’s January 9, 1997, order sought additional filings from the parties to determine whether a VJRA § 402 jurisdiction-conferring NOD had been filed as to the petitioner’s claim. The petitioner’s response contends that the jurisdiction-conferring NOD is the one underlying the claim of the veteran he represented. Memorandum in Response at 1. Although it is true that, absent a VJRA § 403 jurisdiction-conferring NOD as to the veteran’s underlying claim, the Court possesses no authority to review a fee agreement, see Matter of Smith in Case No. C 21 317 717,
Rather, the instant issue is whether a writ of mandamus may properly issue where the petitioner had adequate alternative means that he left unpursued by failing to file an NOD. The Secretary contends that “there can be no notice of disagreement within the meaning of
b. Lack of notice of appellate rights: Section 5104(a) states that, in the case of a decision under
The Court notes that this claim would still be open if notice of appellate rights as to that claim had not been provided with the denial of the claim (the ROA does not indicate one way or the other). See38 U.S.C. § 5104(a) ; Hauck v. Brown,6 Vet.App. 518 , 519 (1994) (per curiam order) (holding that where appellant “never received notification of any denial ..., the one-year period within which to file an NOD, which commences with the ‘date of mailing of notice of the result of initial review or determination,’ did not begin to run”).
Holland,
c. Futility of pursuing alternative remedy: That does not end the matter, however. It is well-settled under AWA law that a petitioner need not pursue an alternative remedy that is futile. See Bankers Life & Cas. Co. v. Holland,
Therefore, the Court holds that the petitioner has an adequate alternative means to obtain the specific relief he seeks, a final BVA decision on the fee-payment matter. See Hahnemann Univ. Hosp.,
D. Jurisdiction over Petition for Writ Ordering Payment of Attorney Fees
To the extent that the petition before the Court is simply one for the payment of attorney fees owed to the petitioner, the
As a tangential matter, the Secretary and his agents at the RO and BVA have suggested that the petitioner’s recourse is with the veteran, to whom the Secretary paid the full amount of past-due benefits. In his October 1995 petition, the petitioner stated that the veteran had already made payments totaling $4,100 of the $7,481.60 owed him (Pet. at 6-7), but his response to the Court’s January 9, 1997, order states that he has received no additional payments. Nonetheless, it would seem that the petitioner retains a contract-law remedy against the veteran for the remainder of the fee owed. See, e.g., Contemporary Mission, Inc. v. Famous Music Corp.,
III. Conclusion
This matter has now been in dispute between the parties for more than five years. The long delay highlights the complexities surrounding the interaction of
In light of the long delay — delay occasioned in part, no doubt, by this Court’s prior conclusion in In re Smith, 4 Vet.App. at 500, that the petitioner’s appropriate remedy was to file with the Board a motion for review of a fee agreement pursuant to
APPEAL DISMISSED; PETITION DENIED.