Cameron v. McDonough

Case: 20-1839 Document: 41 Page: 1 Filed: 06/09/2021

United States Court of Appeals for the Federal Circuit ______________________

JOHN F. CAMERON, Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2020-1839 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 18-2121, Judge Michael P. Allen, Judge William S. Greenberg, Judge Joseph L. Toth. ______________________

Decided: June 9, 2021 ______________________

KENNETH M. CARPENTER, Law Offices of Carpenter Chartered, Topeka, KS, argued for claimant-appellant.

AMANDA TANTUM, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, argued for respondent-appellee. Also represented by CLAUDIA BURKE, JEFFREY B. CLARK, ROBERT EDWARD KIRSCHMAN, JR.; CHRISTOPHER O. ADELOYE, CHRISTA A. SHRIBER, Office of General Counsel, United States Depart- ment of Veterans Affairs, Washington, DC. ______________________

Case: 20-1839 Document: 41 Page: 2 Filed: 06/09/2021 2 CAMERON v. MCDONOUGH

Before MOORE, Chief Judge *, TARANTO and HUGHES, Circuit Judges. HUGHES, Circuit Judge. John Cameron appeals the decision of the Veterans Court denying his attorney’s fees for certain services per- formed prior to a final decision by the Board of Veterans’ Appeals. Because we agree with the Veterans Court that the 2006 amendment to 38 U.S.C. § 5904, in effect at the time he petitioned for the fees, plainly limited payment of such fees to cases in which a Notice of Disagreement was filed on or after June 20, 2007, we affirm. I The basic facts of this appeal are not disputed. As rele- vant here, Mr. Cameron sought attorney’s fees from the Department of Veterans Affairs for services performed on behalf of a U.S. Army veteran, Charles Bolden, prior to a final Board decision on the claims. With respect to the claim at issue, Mr. Cameron had filed an NOD on behalf of Mr. Bolden in August 2005. The VA denied Mr. Cameron attorney’s fees under 38 C.F.R. § 14.636(c), which permits an attorney to charge fees for services provided prior to a final Board decision only where an NOD was filed on or after June 20, 2007. Mr. Cameron appealed to the Board and then to the Veterans Court, which held that 38 C.F.R. § 14.636(c) was consistent with its authorizing statute, 38 U.S.C. § 5904. Mr. Cameron timely appealed to this court. Before the law was amended, attorneys representing veterans in veterans’ benefits cases before the VA were pro- hibited from charging fees for services provided prior to a final Board decision. 38 U.S.C. § 5904(c)(1) (1998). On De- cember 22, 2006, Congress enacted the Veterans Benefits,

• • Chief Judge Kimberly A. Moore assumed the posi- tion of Chief Judge on May 22, 2021.

Case: 20-1839 Document: 41 Page: 3 Filed: 06/09/2021 CAMERON v. MCDONOUGH 3

Health Care, and Information Technology Act of 2006 (Act), Pub. L. No. 109-461, 120 Stat. 3403, which, as rele- vant here, amended the law to allow attorneys to charge fees for services rendered prior to a final Board decision, but after an NOD was filed. The Act provided, in relevant part: (h) EFFECTIVE DATE.—The amendments made by subsections (c)(1) and (d) shall take effect on the date that is 180 days after the date of the enact- ment of this Act and shall apply with respect to ser- vices of agents and attorneys that are provided with respect to cases in which notices of disagree- ment are filed on or after that date. 120 Stat. at 3408, sec. 101(h) (2006) (emphasis added). It is undisputed that the effective date referred to in the Act— the 180th day after enactment—is June 20, 2007. The Act was codified at 38 U.S.C. § 5904: [I]n connection with a proceeding before [VA] with respect to benefits under laws administered by the Secretary, a fee may not be charged, allowed, or paid for services of agents and attorneys with re- spect 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). The effective date provision of the Act was included as a statutory note to § 5904, which reads in relevant part: The amendments made by subsections (c)(1) and (d) [amending this section] shall take effect on the date that is 180 days after the date of the enact- ment of this Act [Dec. 22, 2006] and shall apply with respect to services of agents and attorneys that are provided with respect to cases in which no- tices of disagreement are filed on or after that date.

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Id. § 5904(c)(1) note (2006) (alterations in original). In 2008, the VA promulgated a regulation applying that amendment, 38 C.F.R. § 14.636(c)(3), which provides that: In cases in which a Notice of Disagreement was filed on or before June 19, 2007, agents and attor- neys may charge fees only for services provided af- ter both of the following conditions have been met: (i) A final decision was promulgated by the Board with respect to the issue, or issues, involved in the appeal; and (ii) The agent or attorney was retained not later than 1 year following the date that the decision by the Board was promulgated. . . . II We have limited jurisdiction to review decisions by the Veterans Court. This court may review a Veterans Court decision “with respect to the validity of a decision of the Court on a rule of law or of any statute or regulation . . . or any interpretation thereof . . . that was relied on by the Court in making the decision.” 38 U.S.C. § 7292(a). Unless presented with a constitutional challenge, we lack jurisdic- tion to review any “challenge to a factual determination” or any “challenge to a law or regulation as applied to the facts of a particular case.” Id. § 7292(d)(2). In reviewing a Veterans Court decision, this court must decide “all relevant questions of law, including interpreting constitutional and statutory provisions,” and set aside any interpretation thereof “other than a determination as to a factual matter” relied upon by the Veterans Court that we find to be: “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without observance of procedure required by law.” Id. § 7292(d)(1). “We review

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the Veterans Court’s statutory interpretation de novo.” O’Brien v. Wilkie, 948 F.3d 1339, 1341 (Fed. Cir. 2020). Mr. Cameron argues on appeal that the Veterans Court erred in interpreting 38 U.S.C. § 5904 to limit attor- ney’s fees for services before a final Board decision to cases in which an NOD was filed on or after the effective date of the Act, June 20, 2007. Appellant’s Br. 18. Specifically, Mr. Cameron asserts that the “Effective Date” section of the Act has no substantive effect on 38 U.S.C. § 5904(c)(1) because it “does not appear in the text of the statute itself” and is “essentially ministerial language.” Id. 1 But it is well- established that the placement of a provision in the United States Code as a note is not dispositive. “Though the ap- pearance of a provision in the current edition of the United States Code is ‘prima facie’ evidence that the provision has the force of law, . . . it is the Statutes at Large that provides the ‘legal evidence of laws’ . . . .” U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 448 (1993) (citing 1 U.S.C. §§ 112, 204(a)). This court addressed a sim- ilar issue in Conyers v. MSPB, 388 F.3d 1380 (Fed. Cir. 2004). There, this court rejected the appellant’s emphasis on the placement of the relevant language as a note—ra- ther than in the text of the statutory section—stating “the fact that this provision was codified as a statutory note is of no moment.” Id. at 1382 n.² (citing 1 U.S.C. § 112). In- deed, even if a provision is omitted entirely from the Code,

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it “remains on the books if the Statutes at Large so dic- tates.” U.S. Nat’l Bank of Or., 508 U.S. at 448. Here, the effective date provision of the Act appears in the Statutes at Large. 120 Stat. at 3408, sec. 101(h) (2006). Mr. Cameron’s reliance on the plain meaning of the Act as it appears in the Code, and not the Statutes at Large, is accordingly misplaced. The text of the relevant portion of the Act as it appears in the Statutes at Large plainly limits attorney’s fees for services provided prior to a final Board decision to cases in which an NOD was filed on or after June 20, 2007. See id. The VA regulation at issue here, 38 C.F.R. § 14.636(c)(2), is wholly consonant with that ex- press statutory language. 2 Mr. Cameron also relies on the purpose of the Act to support his atextual reading of the law. Mr. Cameron ar- gues that because the Act expanded the availability of at- torney’s fees, it is contrary to the intent of Congress to interpret a portion of the Act to limit that expansion to cer- tain cases. Appellant’s Br. 22–23. Mr. Cameron urges: “[W]hat conceivable purpose would this additional require- ment have served in the context of a liberalizing change in law intended to benefit veterans and their families?” Ap- pellant’s Reply Br. 10. But it is axiomatic that “no legisla- tion pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice—and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.”

Case: 20-1839 Document: 41 Page: 7 Filed: 06/09/2021 CAMERON v. MCDONOUGH 7

Rodriguez v. United States, 480 U.S. 522, 525–26 (1987) (emphasis original). Here, Congress considered eliminating all fee re- strictions under § 5904(c)(1) by repealing subsection (c)(1) entirely. S. 2694, 109th Cong. § 101(c) (2006). Instead, Con- gress made a legislative choice between the competing pur- poses of liberalizing the availability of attorney’s fees and avoiding disruption to the veterans’ benefits system, and “adopted a delayed and staggered effective date . . . [to] al- low a deliberate and gradual implementation of these poli- cies in order to minimize any disruption to the VA system.” S. Rep. No. 109-297, at 19 (2006). In promulgating 38 C.F.R. § 14.636(c)(2) and accordingly denying Mr. Cam- eron attorney’s fees in this case, the VA has done no more than give effect to that legislative choice. Finally, Mr. Cameron argues that the Veterans Court’s interpretation of 38 U.S.C. § 5904(c)(1) creates an irrecon- cilable conflict with § 5904(d). Appellant’s Br. 9–14. We re- ject Mr. Cameron’s argument. The Veterans Court’s interpretation of § 5904(c) does not conflict with § 5904(d) because, contrary to Mr. Cameron’s assertions, § 5904(d) does not create an effective date inconsistent with the ef- fective date provision of the Act. Section 5904(d) does not allow payment of attorney’s fees earned under a contin- gency agreement and paid out of past-due benefits until a favorable result has been reached for the veteran. That lim- itation in no way conflicts with the effective date of § 5904(c)(1), which defines the services for which a vet- eran’s attorney can charge fees. III We have considered Mr. Cameron’s remaining argu- ments and find them unpersuasive. Because we agree with the Veterans Court that 38 U.S.C. § 5904 does not permit Mr. Cameron to recover attorney’s fees when he filed an

Case: 20-1839 Document: 41 Page: 8 Filed: 06/09/2021 8 CAMERON v. MCDONOUGH

NOD on his client’s behalf in 2005, and that 38 C.F.R. § 14.636(c)(2) is consistent with that statute, we affirm. AFFIRMED

Footnotes

[1] Mr. Cameron also characterized his argument as limited to the “on or after” portion of the effective date pro- vision, which he asserts “is extraneous to the substantive operation” of 38 U.S.C. § 5904(c)(1) as amended. Appel- lant’s Reply Br. 7. We find this alternative characterization linguistically untenable. Moreover, this is a distinction without a difference, as it is the effect of the “on or after” the effective date language that is at the heart of this ap- peal.

[2] Because we conclude that the text of the effective date provision of the Act has a plain meaning, we need not reach the issue of whether the VA’s interpretation of that provision is owed deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842–43 (1984).