*1 litigation stages ministrative and uniformity was sub- cure maintain of the Court’s stantially justified. However, I dissent decisions or question excep- to resolve a from the holding, contrary ap- importance. tional appeal, Sec- plicable precedent, appellant did retary has not shown that either basis prevailing-party not achieve status under exists warrant a full Court decision. the EAJA. Upon foregoing, consideration on appeal,
record and mo- decision, a full Court it is ORDERED the motion for a full Court decision is denied.
STEINBERG, Judge, concurring. For the my reasons set forth in concur- Hugh COX, Appellant/Petitioner, D. ring statement in the order the en banc denying v. motion full-Court consideration in the companion Anthony PRINCIPI, J. Secre- of Snyder 2002 WL tary Affairs, of Veterans (2002), 99-1164, Nos. 98-2219 and Appellee/Respondent. 1-10, order I voted against the motion in this case as well. Mosley, Samuel Intervenor. 95-1068,
Nos. 99-1250.
United Appeals States Court of
for Veterans Claims.
April 2002. KRAMER,
Before Judge, Chief FARLEY, HOLDAWAY, IVERS, SNYDER, Keith D. STEINBERG, GREENE, Judges. Appellant/Petitioner,
ORDER Anthony PRINCIPI, J. Secre- PER CURIAM: Affairs, of Veterans 14, 2001, On November grant- Appellee/Respondent, ed, part, motion for re- consideration, but reaffirmed its October McCreary, Patrick D. Intervenor. 2000, opinion, and issued order that Nos. contained analysis. additional On Decem- 5, 2001, ber renewed his States Court of decision, motion for a full Court which was for Veterans Claims. 7, 2000, contained in the November April for reconsideration.
Motions for a full Court decision KRAMER, are not Before Judge, Chief Ordinarily favored. they FARLEY, will not grant- HOLDAWAY, IVERS, ed unless such necessary STEINBERG, action is GREENE, to se- Judges.
63
the
foregoing,
of the
Upon consideration
ORDER
Secretary’s
mo-
appeal,
on
the
record
PER CURIAM:
decision,
full
it is
tion for a
Court
full
the motion
a
ORDERED that
14, 2001,
grant-
On November
decision is denied.
Court
Secretary’s
motion for reconsidera-
ed
6, 2000,
tion, but reaffirmed its October
STEINBERG,
Judge, concurring:
opinion that
and issued a new
opinion,
unanimously to
has voted
The Court
analysis.
Decem-
On
contained additional
full-
Secretary’s motion for a
deny the
17, 2001,
renewed
ber
As
au
decision in this matter.
decision,
which was
motion for
full Court
panel opinion in this
thor
13, 2000,
in
mo-
the November
contained
(2001)
Principi,
Snyder v.
Vet.App.
15
285
tion
reconsideration.
II
],
and as a member
[hereinafter
full
are not
Motions for a
Court decision
panel
companion
that decided the
of
Ordinarily they
grant-
will not be
favored.
v.
Principi,
case of Cox
15
280
necessary
to se-
such action
order)
ed unless
(2001) (per
Cox
[hereinafter
curiam
uniformity
or maintain
the Court’s
IV],
cure
separately
to address
write
question
excep-
because,
or
resolve a
decisions
in
arguments,
Secretary’s flawed
review, I
importance.
appeal,
In this
the Sec-
appellate
tional
event of further
in this
should
retary has not shown that either basis
that the record
believe
possible.1
complete
full
as
warrant
Court decision.
be
exists to
at-
any
whether or not an
factors that determine
I have not undertaken to address
torney
representation
fee for
arguments regarding
can collect
length
VA;
eligible to
in
collect
before
order to
perceives to
interfer-
what he
be unreasonable
(1)
pertain “to
must
such fee
fee
not
Department
ence with
of Veterans Affairs
provided
the date
services
before
on
(VA) adjudication process
as the se-
insofar
Appeals first
Board of Veterans’
makes
steps
quence
adjudication
to be taken VA
case”;
(2)
”[s]uch
final decision in
regional
offices and the Board
Veterans’
allowed,
charged,
paid
may
or
(BVA)
agree-
regarding
of fee
review
provided after
date
services
I believe
is concerned. That is because
ments
attorney
with re-
agent
an
or
is retained
if
opinion,
Principi,
one-
spect
such case before
end
(2001)
Sny-
[hereinafter
296-98
year period beginning on that date.”
II],
adequately
conten-
der
deals
with these
5904(c)(1).
The reasonableness
tions.
hand,
fee,
on the other
excessiveness of
filed,
motion was
Since
fee that
with the amount of the
deals
however,
Appeals for the
the U.S. Court of
attorney
to collect. See
seeks
Circuit)
(as
(Federal
Circuit
affirmed
Federal
5904(c)(2).
held
II was
What we
modified)
opinion in
our
Scates
5904(c)(2) requires that determi-
that “section
(Fed.Cir.2002).
In that
(which,
eligibility
[v.
under Scates
nations of
opinion,
Circuit stated that ’'[t]he
the Federal
Gober,
(2000)],
must be
(2)
reason-
line
entitlement to
between
(RO)
regional
in the
[VA
]
office
done
fees
ableness and excessiveness
instance)
prerequisite
are
first
bright as the Veter-
be as clear and
a di-
Board review of
reasonableness
“it
and that
is unclear
ans Court believed”
agreement.”
rect-payment fee
to,
solely entitlement
involves
recognized
this case
the se-
We thus
Vet.App. at 297.
of,
i.e.,
steps,
it
rather than the reasonableness
quentiality two distinct
these
Nonetheless,
the differ-
exces-
fee.” Id. at 1367.
the reasonableness or
inappropriate for
sec-
under
entitlement
reasonable-
of a fee to be determined
ences between
siveness
5904(c)(2)
a VARO makes
quite
on the face of
stat-
before
ness
clear
seem
representa-
5904(c).
determination of the
threshold
Determinations
ute.
5904(c)(1)
eligibility
presence
the two
tive's
eligibility
with the
deal
Argument
blush,
I.
Donovan
first
there is a critical difference
content, in
sought,
terms of the relief
be-
Initially,
proce-
makes a
tween the
for panel
reconsideration
dural contention. He states
Donovan and the one
this case.
*3
not
on
Secretary’s
Court “did
act
alter-
(Panel
native motion for full Court review”
Donovan,
In
the Secretary moved “for
(Mot.)
1),
Reconsideration Motion
at
and
panel
reconsideration
the ...
decision
argues
pending
still
the extent that the Court
a
held that veter-
before the Court
because
ac-
may appeal
Board[,]
to the
and then
cording
Secretary’s argument,
has
Court, a
accept
[to] the
VA decision
not
granted the
in
sought
not
entire relief
a
in
deed
lieu of foreclosure.” Ibid. The
Secretary’s
panel
motion for
reconsidera-
“[sjhould
Secretary then
stated
(Mot.
1-2).
support
at
In
tion
motion for reconsideration be
in
denied
argument,
cites Donovan v.
in part,
Appellee respectfully
whole or
West,
(1999)
500,
(en
banc
moves for a full Court
panel
review of the
order), for the following: “Because the
decision”.
Ibid. In the instant
(which
opinion in
II
grant-
Donovan
[
had
Secretary stated first his
mo-
alternative
ed reconsideration but had held that the
decision,
then,
a
for
full-Court
opinion
I
Donovan
remained valid and con-
very generally,
panel
stated that “the
re-
withdrawn)
trolling and would not be
] did
upon
lied
Comptroller
decisions of the
grant
the entire
in
sought
relief
law,
longer good
General which are
reconsideration,
Secretary’s motion for
failed to
applicable Supreme
alternative motion for a full
consider
Court decision
precedent concerning
was circulated to the
full Court”. Al-
im-
though
comparison
munity,
apparently
between
misapplied
Donovan
apt
and the instant case might seem
at
own prior
Mot.
caselaw.”
at
benefits,
any
collect
fee.
despite
pending
the Federal
and future claims for VA
apparent
clarity
point,
Circuit's
lack of
on
Expansion
Veterans Education and Benefits
2001,
any
107-103,
603,
entitlement to
fee and
§
the reasonableness
Act of
Pub.L. No.
are, indeed,
976,
sought
999).
or excessiveness of
fee
point,
Stat.
On the first
the inde-
quite separate
(described
pendent
and distinct
issues.
basis for affirmance
event,
any
ground”
as whether the BVA can
Federal Circuit as an "alternative
for ),
original jurisdiction
sustaining
exercise
under section
the action we had taken in Scates
5904(c)(2)
where an RO has not made
judgment
the Federal Circuit
amade
that an
eligibility,
determination as to
in
"appropriate
Scates the
RO was the
agency
most
initial-
(1)
claim”,
ly
Federal Circuit
stated that
there was an
to decide
fee
[the]
Scates v.
independent
concluding
basis
its
Principi,
that the
Pursuant to Manual Part at 3-15. provisions The Manual M21-1 (a) 12.46, (c), [paragraphs] Ch. and when are, fact, fully that he cites in concert presented potential with di- prior opinions case; with our in this the situation, rect VA will deter- past-due withheld 20% of in benefits is mine past-due the total benefits due to deed to be held until “the amount of the awarded, percent will obtain 100 payment, if any, retroactive due the attor that amount from Compensation the and ney” by is Department. determined the account, Pension immediately and will at however, See Mot. In this eighty release to the claimant percent of “erroneously that withheld amount was that twenty per- award. The withheld II, to Snyder released the veteran”. processed cent as an “06B fiscal trans- added). (emphasis action,” It deduction,” was called a “31J and this erroneous release of funds led the “[t]he amount of the 31J deduction that, Court to note “as is inherent in 38 (twenty percent of pay- the retroactive 5904(d)(2)(A) § ment) ... and in 38 paid Agent will be Cash- 20.609(h) ..., C.F.R. Secretary who, “[u]pon reciept,” ier” deposits the obligated to pay withhold and amount suspense into station’s ac- II, amount.” at 294- count “until BVA determines amount 95. The Secretary’s Manual new any, payment, retroactive if due M21-1. unavailing are thus because M21-1, attorney.” III, Part Ch. they do not deal with the fact (c)(2) crucial under added) [paragraph] (emphasis
examination, namely, the erroneous re lease of funds to the veteran without Put simply, the Court’s assertion that of legal justification statement for that ac there twenty percent are an additional Secretary tion. The only has shown past-due benefits that un- “remain[ ] procedures comport statute, VA with the compensation pen- disturbed in the and with regulations, and with II. factually sion account” is inaccurate. Secretary was to authorized with- Even assuming had draw from that cogent account the amount argument made a to why benefits to the veteran Manual provisions M21-1 cites would entitled, can VA withdraw no create a result different from that de- benefits), may recoup the additional premise of this by the scribed twenty re- percent That is veteran argument would still be flawed. ceived, pointing provi- pursuant to to because [15 295]. of an internal manual to show Section sions provides allowed to act in contravention that “the shall should be statute, regulations, and this ... the amount of the indebted- deduct Clearly, pro- person caselaw. VA internal ness who has been deter- higher mined trump cedures cannot these author- to be indebted to person’s Secretary’s argument by partic- ities. The States virtue of such ipation from his in a regard program is little different benefits adminis- reconsideration, by in the from future motion for tered payments responded person which the Court as follows: made Secretary.” law administered Therefore, accept order un- 5314(a) added). (emphasis assumption in derlying If, pursuant Court’s rationale in argument, we would have to endorse the Regional I & the VA. Office view that released the vet- (RO) subsequently concludes funds a manner other eran’s withheld attorney is entitled all or some of the than as directed the veteran twenty percent of benefits that of the stat- therefore contravention Compen- have been withdrawn from the words, regulation. ute other paid sation and Pension account and agree Secretary’s argument, with the veteran, will re- accept posi- would have to *6 of quired to follow the direction section in situa- that the these Yet, 5904(d)(3) 38 U.S.C. tions, contrary to law as to his acted the may Secretary “In no event states: 5904(d) obligation, un- section whereas ... purpose payment for the of withhold in theory der the I the Court is any portion of any attorneys’ [of fee] assumption no making determination or period after the payable benefits for a to legality payment about the of date the final decision of the Secre- equal veteran of an amount to the with- tary, Appeals, the Board Veterans’ held amount. for Veterans or Court of Secretary’s arguments Id. at 295. The are (or ordering making the mak- Claims now, persuasive a citation to no more with of) ing award.” they support, Manual M21-1 for than added). 5904(d)(3) (emphasis any previous in their incarnations. were VA, preclude to in appears section 5904 instance, following from section Argument III. Section 5314 5314, irrespective appar- Secretary argues The that can- also VA contrary. statements to the ent pay attorney not because 38 U.S.C. (emphasis origi- in Full-Court Mot. with § 5314 conflict this context would nal). Again, Secretary’s arguments 5904(d)(3). full, Secre- far of the mark. fall short tary states as follows: First, appears imply Secretary to paid only that The Court states VA (un- some to gave him directive percent benefits the Court eighty course, 5314. That compliance with section less, attorney is later not ensure correct; fees, as to section in which is not entitled found be following: stated percent paid VA [Ujnder (which theory obligation section 5314 lowing making no or again determination fails to mention could be obviated pay- assumption legality 5302(a)) 5904(d)(3) about section because section equal ment to the veteran of an amount prohibits any portion him withholding from the withheld amount. That is mat- payment of future benefits for attor- ter Secretary between the and the veter- course, ney fees. Of to the extent 5802(a) §§ an. (providing eligible this case is found to Cf. be of overpayment waiver of collection fees, is, pursuant granted “whenever the Secre- paid to be this amount recovery determines would be directly from the undisturbed amount in against conscience”), equity good compensation pension account. 5314 (providing for declaration over- Secretary would thus transmute into payment against and offset other due an attorney’s amount that VA benefits). might attempt recoup from the veteran at 295. In this in light of its erroneous disbursement only passage in the that cites to However, any him. such amount would be passed judg- section paid by the veteran to the ment on whether how the protect would be collected in a VA effort apply should section 5314 in this case. taxpayers by recouping an amount er- Furthermore, citation of section roneously to the released veteran. Even 5302(a) shows drawing the connection that the stating correct in that “the will seems to be advocating such amount —that required to follow the direction sec- replace, compensation would tion 5314” the event he makes pension account, paid the amount to the 5302(a) payment attorney; still fail to transform such —would clearly provides an alternative that would attorney’s into a of an amount allow the to cut this asserted fees; be, again, recoupment it would Gordian knot. VA of amount that it had erroneous-
Second, argument here ly essence, dispersed. The is ignores precepts one of the essential attempting place to by two amounts side Snyder II: twenty-per- The fact that the side, similarity note the in amount of po- cent of benefits set aside funds, and have us declare them to be one payment attorney tential as fees remains However, and the same. even the fact undisturbed, whereas the amount acciden- apple that an orange and an be the tally part disbursed to the veteran was not same size and same mass does not mean of the veteran’s benefits. accurately apple we could call the an 294-95. The orange or vice versa. Secretary’s argument here cannot succeed Secretary’s “Money-Mandatiny” TV. unless can successfully demonstrate Aryument holding point that the Court’s on this above, incorrect. As Secretary presents argu- shown he has failed The also one carry Secretary pos- to that burden. ment that not presented previously The he has prohibited its that he would places argument be from fol- this case.3 He course, pre- arguments 3. Of be stage should not sentation of these at this is senting problematic years first time in even more because over pre- litigation for a full-Court decision. His that this has been before the Court original mandating argument back titled: “The Court’s Ratio-. immunity argument, not stat- Immunity Sovereign sovereign Because nale Violates motion; anywhere That Requires Section Impermissibly It ed 5904(d) however, conclusion, Money-Mandat- drawing without Be Considered Statute”; argument logi- simply way synthesize he frames the no ing there is cally follows: contentions on this point). A brief examination the caselaw Secretary is finding that the The Court’s support cites in of this pay ‘obligated’ to withhold argument reveals its fundamental weak- directly fee agreed-upon ness. duty correspond- creates a and that also
ing ‘right’ for the to collect cites Khan v. United The ... inaccurate as being in addition States, (Fed.Cir.2000), statutory interpretation, vio- a matter of money-mandat- that a proposition principles of sover- lates well-established fairly inter- ing that “can statute one immunity. eign by mandating compensation preted damage Federal Government for sus- It is trace Full-Court Mot. at 9. difficult to important It is to note at the tained.” implicit exactly putative how the cases cited the Secre- 5904(d) outset that money- is a finding that section damage attempts to receive involve statute would violate mandating States, whereas awards from the United link immunity. The seems to attempts pending cases involve our two by stating to his that contention 5904(d) owing (a) receive amounts due and to individ- following: Section cannot wrongly paid uals were out it is money-mandating statute because recipients. (b) to the incorrect United States mandatory; permissive rather than Indeed, “money-mandat- definition money-mandating authority the Court re- points to in ing statute” that upon comes from 38 lies therefore C.F.R. Khan stat- (c) supports the notion those 20.609(h); attempt to elevate damages. utes relate money-mandat- regulation to the level of explains how a nowhere attempt elevate the ing statute is an damages in the in- applicable statute Secretary’s rulemaking authority to the Nonetheless, assum- statutes, even stant context. authority Congress enact concept a mon- ing, see statutes, arguendo, including money-mandating (d) appropriate were 13; ey-mandating statute Mot. at because Full-Court here, statute, Secretary neglects the rather there is regulation cannot be *8 Circuit, (this Federal important point that the immunity here sovereign waiver Khan, mon- clearly recognized that the actually money- step, which ties last J., (raising (the (Steinberg, dissenting) contention began In the companion of CoxIV Smith, Cox, stage Agreements is nor Matter Fee time at reconsideration first 487, Wick, 1993), had 4 has mally practice” that an “undesirable argu- opportunities to this make numerous process” decision-making ] "hinder! no should need remind- ment. The specter piecemeal the undesirable "raise! 1 longstanding policy dis- er of the Court's Derwinski, litigation” (quoting Fugere 1 Vet. litigation. courage See Burton piecemeal However, 103, (1990))). App. as I stated 105 276, (2001) (per 277 15 statement, have ad this at the outset of order) ("[w]e encourage should not curiam argument because of the desira dressed litigation piecemeal in which kind bility Court's consider that the record West, engaged”); appellant Black v. here has possible. complete ation asbe order) (1998) (per curiam 16 11 ey-mandating provision does have to under title and his argument merely in a opin- be contained statute. The Khan applicability. assumes such words, ion “In plaintiff states: other Second, to suggest seems must a claim separate assert under a mon- that a of sovereign immunity waiver ey-mandating provision, constitutional somehow related to a money-mandating statute, regulation, or the violation of (and provision a provision, therefore such supports for damages claim because of the waiver of immuni- against the United States.’ James v. ty, must arise from a statute not a Caldera, (Fed.Cir.1998).” 159 F.3d regulation). Supreme The U.S. Court has Khan, 1378. even if the stated, in the context litigation under 5904(d) Secretary were correct that section Act6, the Tucker as follows: (for discretionary provides which he no decades, For this Court consistently precedential support, proposi- and which interpreted the Tucker as having Act tion, indeed, seems to be without affir- provided the consent United caselaw4), support mative our and that States to be sued eo nomine for the authority the money-mandating here classes of claims described 20.609(h), arises out of instead 38 C.F.R. Act.... In at least two recent decisions support presented for the unstated explicitly this Court stated assumption that such money-mandating Tucker Act effects a of sovereign waiver powers cannot arise out a regulation. immunity.... assuming, Even arguendo, that the Sec- retary could overcome the above-noted
flaws in point, on this It nonetheless remains true that the “ cannot overcome appears the fact that he Tucker Act ‘does not create sub- completely have misapprehended the stantive right against enforceable “money-mandating” nature of a provision. money damages.’ States for ”... First, provided right has no evi- A substantive must be found in dence whatsoever that concept law, of a some other source of such as “the “money-mandating” applicable Constitution, statute is or or Congress, Act of or binding title any regulation 38. None cases depart- an executive pertains cites action ment.” 28 U.S.C. 1491. States, 4. (Fed.Cir.1992); It should be noted specif- that this Court has F.2d and Mil ically States, rule on whether statute (Fed.Cir. lard v. United F.2d refUsed to, "requires, merely give alone discretion 1990)). ap either all of these cases carry out the withhold-and- pear authority to arise under the of the Tuck statute”, III, pay provisions of the Cox Act, Indeed, er see note infra. Vet.App. at 152. presented any has not evidence con cept money-mandating of a provision applies Indeed, each of the cases cited the Secre- anywhere proceed other than in a Tucker Act tary is either decision of U.S. Court of ing. (Hoch States, Federal Claims v. United *9 (1995); Eastport Steamship Fed.Cl. Corp. 39 Act, 1491, 6.The States, Tucker 28 599, is titled v. United 178 372 Ct.Cl. F.2d 1002 against (1967)) "[c]laims United generally; States ac- or an of the U.S. Court of involving Authority”. tions Appeals Valley Tennessee arising for the Federal Circuit out of 28, It is appeal chapter a codified under decision of the U.S. Court 91 title (Khan States, pertains Federal Claims v. United U.S. Court of Federal (Fed.Cir.2000); F.3d 1375 Huston v. United Claims. Mitchell, they rejected it best that thought U.S. States United silently. 77 L.Ed.2d S.Ct. added). Supreme As the (emphasis Act, out, Tucker in cases under the
points each of the predicate
which forms money-
cases cited to the issue
mandating provision goes not (which already immunity sovereign Act), way of the Tucker but to
waived right pay- of a the issue substantive SMITH, Appellant, D. Shannon Supreme Again, ment. Mitchell, money-man- points out Anthony PRINCIPI, J. right and its dating provision substantive Affairs, Appellee. Veterans regulation as from can as well from arise if to find even we were statute. No. 01-547. (a) principle money-mandat- of a States Court of applies context of ing provision outside the for Veterans Claims. (b) Act; principle the Tucker (c) 38; that section applies under title April 5904(d) permissive rather than mandato- 5904(d) (d)
ry; thus cannot be (e) that, statute; and money-mandating
therefore, money-mandating authority upon from 38 Court relies comes 20.609(h), still
C.F.R. have that such an
would not demonstrated “impermissible”, let alone that
action was im-
it constituted violation view, pre- Regrettably, my
munity. poorly-constructed such a ar-
sentation of if all its fail even
gument, which would true, proved is not
predicate assumptions being borders on unpersuasive but (contempt
frivolous. Cf. YetApp. Court); R. authority of the U.S. (“[i]f ap- that an the Court determines frivolous, may such order
peal it enter appropriate”).
itas deems
V. Conclusion voted, reasons, I as did
For all above deny my on the
all of brethren case. Not-
en banc consideration
withstanding that the substan- unpersuasive, are
tive