Cameron v. Shinseki

United States Court of Appeals
for the Federal Circuit
______________________
JOHN F. CAMERON,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2012-7125
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 09-1894, Judge Lawrence B.
Hagel.
______________________
Decided: July 3, 2013
______________________
KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka, Kansas, argued for claimant-appellant.
JAMES R. SWEET, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondent-
appellee. On the brief were STUART F. DELERY, Principal
Deputy Assistant Attorney General, JEANNE E. DAVIDSON,
Director, KIRK T. MANHARDT, Assistant Director, and
2 JOHN CAMERON v. SHINSEKI
ALEX P. HONTOS, Trial Attorney. Of counsel on the brief
was BRIAN D. GRIFFIN, Staff Attorney, Office of the Gen-
eral Counsel, United States Department of Veterans
Affairs, of Washington, DC. Of counsel was MICHAEL J.
TIMINSKI, Deputy Assistant General Counsel.
______________________
Before O’MALLEY, SCHALL, and WALLACH, Circuit Judges.
Opinion for the court filed by Circuit Judge WALLACH.
Dissenting opinion filed by Circuit Judge SCHALL.
WALLACH, Circuit Judge.
Attorney John F. Cameron appeals the United States
Court of Appeals for Veterans Claims’ (“Veterans Court”)
affirmance of the Board of Veterans’ Appeals’ (“Board”)
decision determining “that attorney fees from past due
benefits in the amount of $9,199.19 for his representation
of veteran Floyd W. Bartlett were correctly calculated and
that additional fees were not warranted.” Cameron v.
Shinseki, 2012 U.S. App. Vet. Claims LEXIS 362, at *5–6
(U.S. App. Vet. Cl. Mar. 1, 2012) (“Veterans Court Deci-
sion”). Because the Veterans Court correctly interpreted
38 U.S.C. § 5904(c)(1) (2004), we affirm.
BACKGROUND
Mr. Bartlett served on active duty from 1943 to 1963.
On March 28, 2002, he submitted a claim to the Depart-
ment of Veterans Affairs (“VA”) Regional Office (“RO”) to
increase his rating for his service-connected Post-
Traumatic Stress Disorder (“PTSD”), which was then
rated at 30% disabling. The RO denied Mr. Bartlett’s
claims for an increased rating.
After Mr. Bartlett appealed the RO’s denial, the
Board issued its first final decision in this matter on
March 16, 2005, increasing Mr. Bartlett’s disability rating
from 30% to 100%. It remanded the claim for the RO to
JOHN CAMERON v. SHINSEKI 3
implement its decision and determine the effective date of
the award. 1
On March 31, 2005, after the first final Board deci-
sion, but before the RO issued a decision on remand, Mr.
Bartlett entered into a fee agreement with Mr. Cameron.
The fee agreement provided that Mr. Cameron would
provide legal representation to Mr. Bartlett “in connection
with all proceedings for benefits before the U.S. Depart-
ment of Veterans Affairs.” J.A.44. The fee agreement
stipulated that Mr. Bartlett would pay Mr. Cameron “a
contingent fee equal to 20 percent of the total amount of
any past due VA benefits awarded on the basis of [his]
claim(s) with the [VA].” J.A.44.
In July 2005, the RO issued a decision implementing
the Board’s decision to increase Mr. Bartlett’s disability
rating for PTSD from 30% to 100%, effective April 10,
2002, the date that Mr. Bartlett filed his claim. J.A.48
(“We have assigned an effective date of April 10, 2002,
which is the date we received your claim for an increased
evaluation.”).
Mr. Cameron sought to recover fees for the past-due
benefits awarded to Mr. Bartlett as a result of the RO’s
implementation of the 100% rating. In September 2005,
the RO denied Mr. Cameron entitlement to attorney fees,
finding that, because “the March 16, 2005, decision [wa]s
the first final decision rendered by the [Board] in this
veteran’s PTSD claim, the provisions of 38 U.S.C.
1 The Board also remanded Mr. Bartlett’s claim for
entitlement to dependents’ educational assistance benefits
for further development and readjudication. The subse-
quent award of dependents’ educational assistance bene-
fits has not been appealed and is therefore not before this
court.
4 JOHN CAMERON v. SHINSEKI
§ 5904(c)(1) preclude the attorney’s entitlement to fees
based on benefits arising from this decision.” J.A.52.
In addition to filing this fee petition, Mr. Cameron
filed an appeal on Mr. Bartlett’s behalf with respect to the
effective date the RO assigned to Mr. Bartlett’s increased
disability rating. In May 2006, the RO determined that
the proper effective date for the 100% disability rating
was January 22, 2001, approximately 15 months earlier
than the effective date initially assigned. The RO granted
Mr. Bartlett $45,995.93 in past-due benefits and also
found that that Mr. Cameron met the requirements for
payment of attorney fees under 38 U.S.C. § 5904 and 38
C.F.R. § 20.609. Accordingly, attorney fees were set aside
for Mr. Cameron, representing 20% of the additional
award occasioned by the change in the effective date of his
100% disability rating. 2
Mr. Cameron filed an appeal with respect to the RO’s
denial of his first fee request. In September 2008, the
Board issued the decision now on appeal, which affirmed
the denial of attorney fees for the RO’s implementation of
the 100% disability rating. On appeal, the Veterans
2 Neither Mr. Bartlett nor Mr. Cameron filed a no-
tice of disagreement with this decision.
JOHN CAMERON v. SHINSEKI 5
Court affirmed the Board’s denial. Veterans Court Deci-
sion at *20. 3 Mr. Cameron filed this timely appeal.
DISCUSSION
This court’s jurisdiction to review decisions of the
Veterans Court is limited by statute. Pursuant to 38
U.S.C. § 7292(a), this court has jurisdiction to review “the
validity of a decision of the [Veterans] Court on a rule of
law or of any statute or regulation . . . or any interpreta-
tion thereof (other than a determination as to a factual
matter) that was relied on by the [Veterans] Court in
making the decision.” Except to the extent that a consti-
tutional issue is presented, this court may not review “a
challenge to a factual determination,” or “a challenge to a
law or regulation as applied to the facts of a particular
case.” 38 U.S.C. § 7292(d)(2). The Veterans Court’s legal
3 In January 2012, the Veterans “Court sought clar-
ification from Mr. Cameron regarding the relief” he re-
quested on appeal. Veterans Court Decision at *12. In
February 2012, Mr. Cameron asserted that “he is entitled
to an additional $11,407.40 in attorney fees, which he
calculated to be 20% of the past due benefits paid to Mr.
Bartlett as a result of the July 2005” RO implementation.
Id. Mr. Cameron asserted “that he arrived at that figure
‘by subtracting the dollar value of the 60% rate of com-
pensation [that] Mr. Bartlett had been receiving prior to
the . . . [July 2005 RO decision] from the dollar value of
the 100% rate of compensation assigned’ in the July 2005”
RO decision. Id. at *12 (citation omitted). The Veterans
Court noted that this statement contains two errors:
“First, Mr. Bartlett was previously assigned a 30% disa-
bility rating for post-traumatic stress disorder, not 60%,
and, second, it was the March 2005 Board decision that
assigned the 100% disability rating for post-traumatic
stress disorder, not the July 2005 Regional Office deci-
sion.” Id. at *13.
6 JOHN CAMERON v. SHINSEKI
determinations are reviewed de novo. Cushman v.
Shinseki, 576 F.3d 1290, 1296 (Fed. Cir. 2009).
The applicable statute at issue is section 5904(c)(1) of
title 38 of the United States Code, which provides:
Except as [otherwise] provided . . . a fee may not
be charged, allowed, or paid for services of agents
and attorneys with respect to services provided
before the date on which the Board of Veterans’
Appeals first makes a final decision in the case.
Such a fee may be charged, allowed, or paid in the
case of services provided after such date only if an
agent or attorney is retained with respect to such
case before the end of the one-year period begin-
ning on that date. The limitation in the preceding
sentence does not apply to services provided with
respect to proceedings before a court.
38 U.S.C. § 5904(c)(1) (2004) (emphasis added). 4
The Government argues that this court does not have
jurisdiction over Mr. Cameron’s appeal because the ap-
peal rests on the “fact that the Veterans Court found that
the operative decision that awarded benefits was the
March 2005 Board decision, which occurred before Mr.
Cameron was even retained to provide legal services to
Mr. Bartlett,” and this is a “factual matter[] or, at a
minimum, application of law to fact.” Secretary’s Br. at 16
n.11.
Mr. Cameron asserts that “[t]he issue on appeal is en-
tirely an issue of law,” stating that the Veterans Court
4 In 2006, Congress altered the language of this sec-
tion; the statute now provides, in pertinent part: “[A] fee
may not be charged, allowed, or paid for services of agents
and attorneys with respect to services provided before the
date on which a notice of disagreement is filed with
respect to the case.” 38 U.S.C. § 5904(c)(1) (2006).
JOHN CAMERON v. SHINSEKI 7
misinterpreted 38 U.S.C. § 5904(c)(1), which, he claims, is
clear on its face. Cameron’s Br. at 1. According to Mr.
Cameron, an attorney may recover fees pursuant to
section 5904 as long as the attorney is retained within one
year after the date of the Board’s issuance of a final
decision. Id. at 5.
The Veterans Court considered whether 38 U.S.C.
§ 5904(c)(1) prevented Mr. Cameron from recovering
attorney fees based on the RO’s implementation of the
first final Board decision. This is a question of statutory
interpretation over which this court may exercise jurisdic-
tion. See Carpenter v. Nicholson, 452 F.3d 1379, 1383
(Fed. Cir. 2006) (“The Veterans Court’s interpretation of
the ‘first . . . final decision in the case’ in § 5904(c) is a
statutory interpretation, and places this appeal within
the Federal Circuit’s appellate jurisdiction.”).
The statute provides that a fee may be charged “in the
case of services provided” after the date on which the
Board “first makes a final decision in the case.” 38 U.S.C.
§ 5904(c)(1). However, no fee may be charged with re-
spect to services before the first final Board decision. Id.
This court has explained that Congress intended this
provision to “prohibi[t] an attorney or agent from charging
for services until the VA affirms its decision to deny a
claim,” Stanley v. Principi, 283 F.3d 1350, 1357 (Fed. Cir.
2002) (quoting H.R. Rep. No. 100-963, at 28 (1988), re-
printed in 1988 U.S.C.C.A.N. 5782, 5810-11) (emphasis
omitted), and to “bar the retention of paid counsel in
connection with the original VA proceedings,” id. at 1356.
See also Scates v. Principi, 282 F.3d 1362, 1366 (Fed. Cir.
2002) (recognizing the “congressional intent to protect
veterans benefits from improper diminution by excessive
legal fees”).
This case hinges on the meaning of the term “services”
in the context of this statute. Assuming all other neces-
sary criteria are met, Mr. Cameron must prove that
8 JOHN CAMERON v. SHINSEKI
services were indeed provided to the veteran with respect
to the award as to which fees are sought. When an RO
simply implements the relief granted in the first final
Board decision, there are no services to be provided by an
attorney to the veteran. As of the March 16, 2005 Board
decision, Mr. Bartlett was legally entitled to a 100%
rating for his PTSD, effective as of the date he filed his
claim for an increased rating. J.A.41; see 38 U.S.C.
§ 5110(a); 38 C.F.R. § 3.400(o). That is what Mr. Bartlett
received in the July 2005 RO decision. J.A.48. The RO
decision did not weigh evidence or engage in substantive
consideration of any kind. Id. Rather, it made clear that
“[t]he purpose of this rating is to implement the [Board’s]
decision.” Id.
Mr. Cameron can point to no specific services he pro-
vided to Mr. Bartlett with regard to the RO’s implementa-
tion of the increase in Mr. Bartlett’s disability rating for
PTSD from 30% to 100%, effective from Mr. Bartlett’s
original filing date of April 10, 2002. Mr. Cameron’s
vague assertions of activity on appeal do not rise to the
level of “services” within the meaning of this statute
because they are unrelated to the award obtained by Mr.
Bartlett. In briefing, Mr. Cameron’s counsel, Mr. Carpen-
ter, asserts only that: “the VA regional office’s actions
were encouraged and reviewed by Mr. Bartlett’s lawyer,
Mr. Cameron.” Cameron’s Reply Br. at 4. Similarly, Mr.
Carpenter stated in oral arguments:
Services were [provided] to essentially shepherd
the case back before the RO and get the RO to im-
plement the Board Decision and to be sure that
the Board [sic, RO] implemented that Board deci-
sion correctly. Now on the question of rating,
there was really not that much to do. However on
the issue of the effective date, it was necessary for
Mr. Cameron to determine what the correct effec-
tive date is in order to be sure that the Regional
JOHN CAMERON v. SHINSEKI 9
Office when it implemented this decision assigned
a correct effective date.”
Oral Argument at 1:27–1:57, John Cameron v.
Shinseki, No. 2012–7125, available at
http://www.cafc.uscourts.gov/oral-argument-recordings.
Additionally, counsel offered Mr. Cameron’s time-
sheets as evidence of what Mr. Cameron accomplished.
J.A. 64–66. The records submitted show that Mr. Camer-
on drafted two letters to the RO before its implementation
of the Board’s final decision. In those letters, he requested
copies of the rating decision, allocating a total sum of 30
minutes for both activities. J.A. 64–65 (4/01/05: “Draft
cover letter . . . requested the required Rating Decision.”;
6/16/05: “Draft follow up letter to the [RO], requesting the
Rating decision”). Mr. Cameron offers no explanation as
to why these limited actions were relevant to the RO’s
decision with respect to the effective date or how such
limited activities were in any way advocating for that
which the veteran had not already secured.
It is undisputed that Mr. Cameron did not make any
arguments to the RO at that time about the proper effec-
tive date. Rather, as already noted, the RO set the effec-
tive date pursuant to statutory direction, see 38 U.S.C.
§ 5110(a); 38 C.F.R. § 3.400(o). It was only after the RO
had initially established an effective date that Mr. Cam-
eron pursued a successful appeal of that determination on
Mr. Bartlett’s behalf. For that effort, Mr. Cameron was
awarded fees at the 20% of benefits rate specified in his
agreement with Mr. Bartlett.
This holding makes complete sense. It is undisputed
that Mr. Cameron would be barred by 38 U.S.C.
§ 5904(c)(1) from recovering for any services provided
before the date of the Board’s first final decision. This
requirement would be rendered meaningless if Mr. Cam-
eron could reap 20% of the rewards from the first Board
10 JOHN CAMERON v. SHINSEKI
decision simply by signing a fee agreement with the
veteran before the RO’s implementation of that decision.
This holding also has serious practical implica-
tions; attorneys should not be encouraged to seek out
veterans who, like Mr. Bartlett, have already secured an
award of benefits on their own in order to sign them as
clients only to extract as a fee 20% of already payable
benefits.
Finally, as a practical matter, we note that Mr. Cam-
eron has already collected a fee of $9,199.19 for “little
more than 18 hours of work on Mr. Bartlett’s claims over
17 months, which consisted largely of phone conversations
with Mr. Bartlett.” Veterans Court Decision at *18.
Despite the fact that Mr. Cameron “did precious little
advocacy” on Mr. Bartlett’s behalf, he has already re-
ceived fees computed on the basis of an approximate rate
of $540 per hour. Id. at *19. The Veterans Court also
observed that if the court agreed with Mr. Cameron’s
request for additional fees, the approximate rate would be
“$1,129 per hour.” Id. at *19 n.15. The Veterans Court
admonished Mr. Cameron for seeking additional fees,
explaining that “challenging . . . the fee awarded in this
case as insufficient strikes the Court as frivolous.” Id. at
*20.
Notwithstanding this admonishment, Mr. Cameron
continues to urge on appeal that the Veterans Court
misinterpreted 38 U.S.C. § 5904(c)(1) when it affirmed the
Board’s denial of his claim and that because the RO
decision at issue occurred after he had signed Mr. Bartlett
as a client, he is entitled to 20% of Mr. Bartlett’s past-due
benefits.
He is not.
CONCLUSION
Because the Veterans Court correctly interpreted 38
U.S.C. § 5904(c)(1) (2004), the decision is
JOHN CAMERON v. SHINSEKI 11
AFFIRMED
United States Court of Appeals
for the Federal Circuit
______________________
JOHN F. CAMERON,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2012-7125
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 09-1894, Judge Lawrence B.
Hagel.
______________________
SCHALL, Circuit Judge, dissenting.
The work performed by Mr. Cameron between March
31, 2005, when he was retained by Mr. Bartlett, and July
19, 2005, when the RO issued its decision implementing
the Board’s final decision, was limited in the extreme.
Under these circumstances, one cannot help but recoil, as
the majority does, at Mr. Cameron’s claim for attorney
fees. That said, I believe the result reached by the major-
ity today is contrary to the clear language of the statute,
38 U.S.C. § 5904 (c)(1). I therefore respectfully dissent.
The statute provides that a fee may be charged for
“services provided” after the date on which the Board
2 JOHN CAMERON v. SHINSEKI
“first makes a final decision in the case.” It is undisputed
that the work performed by Mr. Cameron, for which he is
claiming attorney fees, took place after the Board’s March
16, 2005 final decision. In my view, for that reason, Mr.
Cameron’s claim is covered by the language of §
5904(c)(1).
The majority, though, concludes that the work per-
formed by Mr. Cameron after March 16, 2005, and prior
to July 19, 2005, which consisted of drafting letters to the
RO, did not rise to the level of “services” within the mean-
ing of the statute. In reaching that conclusion, the major-
ity notes that, at most, all Mr. Cameron did following the
Board’s remand was send two letters to the RO requesting
a decision. See Majority Op. 9. According to the majority,
that work did not constitute the providing of legal ser-
vices: “[W]hen an RO simply implements the relief grant-
ed in the first final Board decision, there are no services
to be provided by an attorney to the veteran.” See id. at 8.
As a matter of policy, the majority’s decision has
much to recommend it. It can quite reasonably be argued
that Mr. Cameron should not be able to recover attorney
fees for the extremely limited work he performed. The
problem I have with the majority’s approach is that I am
unable to find anything in the statutory language which
limits the meaning of the word “services” in the way the
majority does. If Congress had wished to limit the cir-
cumstances under which work performed by an attorney
after a final Board decision qualifies as “services provid-
ed,” it could easily have done so.
In my view, however, the statute does provide a way
of addressing the circumstances presented by a case such
as this. Pursuant to the prior version of 38 U.S.C. §
5904(c)(2) relevant to this appeal, “[t]he Board, upon its
own motion or the request of either party, may review
such a fee agreement and may order a reduction in the fee
called for in the agreement if the Board finds that the fee
JOHN CAMERON v. SHINSEKI 3
is excessive or unreasonable.” I see nothing to prevent
the Board from considering, on its own motion, whether
the fee claimed by Mr. Cameron in this case is unreason-
able and then reducing the fee if it determines that it is
unreasonable.
For the reasons set forth above, I would hold that the
Board and the Court of Appeals for Veterans Claims
(“Veterans Court”) erred in holding that the work per-
formed by Mr. Cameron that is at issue did not qualify as
“services” under prior § 5904(c)(1). I therefore would
reverse the Veterans Court’s decision and would remand
the case with the instruction that the court, in turn,
remand the case to the Board for the Board to determine
the amount of fee to which Mr. Cameron is entitled,
noting that the Board has the authority under prior §
5904(c)(2) to consider, on its own motion, the reasonable-
ness of the fee claimed by Mr. Cameron.