Bates v. Nicholson

Error: Bad annotation destination
United States Court of Appeals for the Federal Circuit

CORRECTED: 2/28/05

04-7085

R. EDWARD BATES,

Claimant-Appellant,

v.

R. JAMES NICHOLSON, Secretary of Veterans Affairs,

Respondent-Appellee.

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for
claimant-appellant.

David D’Alessandris, Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-
appellee. With him on the brief were Peter D. Kiesler, Assistant Attorney General,
David M. Cohen, Director, and Brian M. Simkin, Assistant Director. Of counsel on the
brief were Richard J. Hipolit, Deputy Assistant General Counsel and Martin J. Sendek,
Attorney, United States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Opinion Per Curiam
 United States Court of Appeals for the Federal Circuit
04-7085

R. EDWARD BATES,

Claimant-Appellant,

v.

R. JAMES NICHOLSON, Secretary of Veterans Affairs,

Respondent-Appellee.

___________________________

DECIDED: February 28, 2005
___________________________

Before NEWMAN, BRYSON, and DYK, Circuit Judges.

Opinion for the court filed by Circuit Judge DYK. Concurring opinion filed by Circuit
Judge BRYSON.

DYK, Circuit Judge.

The Secretary, acting through the General Counsel, terminated appellant R.

Edwards Bates’ (“Bates”) accreditation to represent claimants before the Department of

Veteran Affairs (“VA”). Bates sought review before the Board of Veterans Affairs (“the

Board”). The Secretary declined to issue the Statement of the Case (“SOC”) that Bates

required to pursue his appeal. He then sought mandamus from the United States Court

of Appeals for Veterans Claims to order the Secretary to issue the SOC so that he could

appeal to the Board. The court found that the Board had no jurisdiction over the appeal,

and accordingly, the court would have no jurisdiction over an appeal from the Board,

thus rendering mandamus unavailable. We reverse the decision of the Court of
Appeals for Veterans Claims and remand with instructions to issue the requested writ of

mandamus.

BACKGROUND

Appellant Bates is an attorney who represents claimants for benefits before the

VA. Such representation is permissible only if an attorney is accredited by the VA

pursuant to 38 U.S.C. §§ 5901 and 5904(a). Bates was accredited. On July 28, 2003,

following a hearing, the General Counsel of the VA (“GC”), acting on behalf of the

Secretary, terminated Bates’ accreditation, acting under the authority of 38 U.S.C.

§ 5904(b) and 38 C.F.R. § 14.633. The GC concluded that Bates had “engaged in

unlawful practice and violated laws administered by the Secretary.” (J.A. at 49.) In

particular, the GC found that Bates had “accepted unlawful compensation for preparing,

presenting, and prosecuting claims for VA benefits in violation of 38 U.S.C § 5904(c)(1),

. . . solicited and contracted for illegal fees in violation of 38 U.S.C. § 5905(1) . . . [and]

deceived and misled a claimant.” (Id.) Bates was also accused of violating 38 U.S.C.

§ 5904(c)(2) by seeking unreasonable fees from his clients, although the GC did not

directly address that violation in making his decision, finding it subsumed in the other

charges. (Id. at 48.)

Bates urged that the Secretary’s action was reviewable by the Board, because

the Board’s jurisdictional statute provides for review of “decision[s] by the Secretary

under a law that affects the provision of benefits,” 38 U.S.C. § 7104(a) (2000)

(incorporating by reference, 38 U.S.C. § 511(a)), and because the Secretary’s decision

to cancel his accreditation under 38 U.S.C. § 5904(b) was such a decision.

Accordingly, in August 2003, Bates filed a Notice of Disagreement (“NOD”) as to the

04-7085 2
Secretary’s decision with the VA’s regional office and requested that the Secretary issue

an SOC so that he could appeal to the Board. An SOC is a mandatory prerequisite to a

Board appeal. 38 U.S.C. §§ 7105(a) and (d) (2000). The Secretary refused to issue

the SOC, and thereby prevented a Board appeal. In October 2003, Bates filed a

petition for extraordinary relief in the nature of a writ of mandamus in the Court of

Appeals for Veterans Claims, requesting the court to order the Secretary to provide the

SOC. The parties appeared to agree that Bates’ entitlement to the writ under the All

Writs Act (“AWA”), 28 U.S.C. § 1651(a), turned on whether the Board had jurisdiction to

review the Secretary’s action and whether the Court of Appeals for Veterans Claims

ultimately had jurisdiction to review the Board’s action.

The court held that it would possess jurisdiction to issue the writ only if the

granting of Bates’ petition could lead to a Board decision over which the court would

have jurisdiction. The Court of Appeals for Veterans Claims held that the Board lacked

jurisdiction in the first instance, and as a consequence, the court lacked jurisdiction, and

therefore there was no authority to issue a writ of mandamus. 38 U.S.C. § 7252 (2000).

The court concluded that the provision which the Secretary noted, section

5904(b), was not “a law that affects the provision of benefits,” and was therefore outside

the Board’s jurisdiction under 38 U.S.C. §§ 511(a) and 7104(a), and that the court

therefore lacked jurisdiction under 38 U.S.C. § 7252. In holding section 511(a) to be

inapplicable, the Court of Appeals for Veterans Claims distinguished our decision in Cox

v. West, 149 F.3d 1360 (Fed. Cir. 1998). Bates v. Principi, No. 03-1903 (Vet. App. Feb.

19, 2004). Cox held that 38 U.S.C. § 5904(d), which authorizes the Secretary to

withhold a portion of past-due benefits owed to a VA claimant and to pay those withheld

04-7085 3
benefits to an attorney, pursuant to an otherwise valid fee agreement, was a provision

that “affects the provision of benefits” and therefore that the Secretary’s decisions under

the statute were subject to review pursuant to 38 U.S.C. § 511(a). 149 F.3d at 1365.

The Court of Appeals for Veterans Claims distinguished 38 U.S.C. § 5904(d), at

issue in Cox, from 38 U.S.C. § 5904(b), at issue in Bates’ case. The court found the

latter provision to “pertain[] to a decision to terminate the accreditation of an attorney

[and to] . . . say[] nothing about VA benefits.” Bates, slip op. at 3. Thus, the court

dismissed Bates’ petition for lack of jurisdiction. Id. at 4.

Bates timely appealed to this court. We have jurisdiction pursuant to 38 U.S.C.

§ 7292. Cox, 149 F. 3d at 1362.

DISCUSSION

Our review of this question is governed by 38 U.S.C. § 7292(d)(1), which

provides that this court, in reviewing decisions of the Court of Appeals of Veterans

Claims, “shall decide all relevant questions of law, including interpreting constitutional

and statutory provisions.” Such legal interpretations are reviewed without deference.

Jones v. Brown, 41 F.3d 634, 637 (Fed. Cir. 1994); Mayer v. Brown, 37 F.3d 618, 619

(Fed. Cir. 1994).

As we confirmed in Cox, the Court of Appeals for Veterans Claims “has the

power to issue writs of mandamus in aid of its jurisdiction under the AWA.” 149 F.3d at

1363; see also FTC v. Dean Foods Co., 384 U.S. 597, 603 (1966) (“The exercise of

this [AWA] power . . . extends to the potential jurisdiction of the appellate court where an

appeal is not then pending but may be later perfected.”). The propriety of a writ of

mandamus in this case turns on the question of whether the Court of Appeals for

04-7085 4
Veterans Claims would have jurisdiction to review the GC’s decision. By virtue of 38

U.S.C. § 7252, the Court of Appeals for Veterans Claims has jurisdiction to review

decisions of the Board, but it does not have jurisdiction to review other decisions of the

Secretary. Thus, the question is whether the Board had jurisdiction over the appeal.

Section 7104(a) of 38 U.S.C. limits the Board’s jurisdiction to “all questions in a

matter which under section 511(a) of this title is subject to decision by the Secretary.”

Section 511(a) states:

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.
Subject to subsection (b), the decision of the Secretary as to any such
question shall be final and conclusive and may not be reviewed by any
other official or by any court, whether by an action in the nature of
mandamus or otherwise.

38 U.S.C. § 511(a) (2000) (emphasis added).1 The ultimate question before us is

whether this case arises “under a law that affects the provision of benefits.” Id.

I

The Secretary here, in deciding to terminate Bates’ certification, acted pursuant

to 38 U.S.C. § 5904(b). Section 5904(b) authorizes the Secretary to “suspend or

exclude” agents and attorneys from practice before the VA. Bates argues that section

5904(b) is itself a “law that affects the provision of benefits” because if he is unable to

1
The exceptions set forth in 38 U.S.C. § 511(b) are: (1) matters subject to
38 U.S.C. § 502 (Federal Circuit jurisdiction over Administrative Procedure Act review of
VA rulemaking); (2) matters covered by 38 U.S.C. §§ 1975 and 1984 (jurisdiction of
federal district courts over suits on Veterans’ Group Life Insurance, National Service
Life Insurance and U.S. Government life insurance); (3) matters arising under chapter
37 of title 38 (involving VA housing and small business loans); and (4) matters arising
under chapter 72 of title 38, (covering the appeals process to the Board, the Court of
Appeals for Veterans Claims, and, ultimately, this court and the Supreme Court).

04-7085 5
practice, his clients will not be able to secure the benefits to which they are entitled. We

cannot agree. The relationship between the canceling of the appellant’s accreditation

and the securing of benefits by his clients is far too attenuated. Bates has made no

showing that the cancellation of his accreditation has affected the delivery of benefits to

any VA claimant. Not only could the appellant’s clients find another attorney, the VA

system provides claimants with a wide choice of possible representatives, including

representatives of recognized veterans service organizations and claims agents in good

standing with the VA. 38 C.F.R. § 14.629 (2004). The argument that 38 U.S.C. §

5904(b) is itself a “law that affects the provision of benefits” is unpersuasive.

This is not the end of the matter. A further question is whether subsection

5904(b) should be considered as a “law” separate and apart from the remainder of

section 5904, or whether the entirety of section 5904 should be considered part of a

single “law.” Other subsections of section 5904 deal with matters closely related to the

decertification provisions in subsection 5904(b). Subsection 5904(a) authorizes the

Secretary to certify individuals for practice before the VA. Subsection 5904(c) regulates

when, and what types, of fees may be charged by agents and attorneys, and subsection

5904(d), involved in our decision in Cox, authorizes contingency fees limited to 20% of

the total amount of past-due benefits awarded, and provides for direct payment of such

fees by the VA when appropriate. 38 U.S.C. § 5904 (2000).2

2
Section 5904, titled “Recognition of agents and attorneys generally,” reads
in its entirety:
(a) The Secretary may recognize any individual as an agent or attorney for
the preparation, presentation, and prosecution of claims under laws
administered by the Secretary. The Secretary may require that individuals,
before being recognized under this section, show that they are of good moral

04-7085 6
 character and in good repute, are qualified to render claimants valuable
service, and otherwise are competent to assist claimants in presenting claims.
(b) The Secretary, after notice and opportunity for a hearing, may suspend or
exclude from further practice before the Department any agent or attorney
recognized under this section if the Secretary finds that such agent or
attorney—
(1) has engaged in any unlawful, unprofessional, or dishonest
practice;
(2) has been guilty of disreputable conduct;
(3) is incompetent;
(4) has violated or refused to comply with any of the laws
administered by the Secretary, or with any of the regulations or
instructions governing practice before the Department; or
(5) has in any manner deceived, misled, or threatened any actual or
prospective claimant.
(c)(1) Except as provided in paragraph (3), in connection with a proceeding
before the Department 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 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 beginning on that date. The limitation in the
preceding sentence does not apply to services provided with respect to
proceedings before a court.
(2) A person who, acting as agent or attorney in a case referred to in
paragraph (1) of this subsection, represents a person 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 a fee agreement and may order
a reduction in the fee called for in the agreement if the Board 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 [Title 38].
(3) A reasonable fee may be charged or paid in connection with any
proceeding before the Department in a case arising out of a loan made,
guaranteed, or insured under chapter 37 of [Title 38]. A person who charges a
fee under this paragraph shall enter into a written agreement with the person
represented and shall file a copy of the fee agreement with the Secretary at
such time, and in such manner, as may be specified by the Secretary.
(d)(1) When a claimant and an attorney have entered into a fee agreement
described in paragraph (2) of this subsection, the total fee payable to the
attorney may not exceed 20 percent of the total amount of any past-due
benefits awarded on the basis of the claim.

04-7085 7
 If section 5904 is itself a single law, we have already held that subsection

5904(d), which governs the amount that may be awarded to attorneys on a contingency

basis from past-due benefits, “affects the provision of benefits.” Cox, 149 F.3d at 1365.

In that case, Cox, an attorney, represented a veteran before the VA in a claim for

benefits, subject to a twenty percent contingent fee arrangement under which the

Secretary was to pay the fee to the lawyer out of any past-due benefits as provided in

subsection 5904(d). We reasoned that Cox’s claim to entitlement to his fee was

justiciable by the Board, as the claim required the Secretary, in reaching his decision, to

necessarily interpret subsection 5904(d), a provision “that affects the provision of

benefits.” Id. Thus, if section 5904 is to be considered as a whole, subsection 5904(b)

is part of a “law that affects the provision of benefits,” and the Board has jurisdiction.

(2)(A) A fee agreement referred to in paragraph (1) is one under which the
total amount of the fee payable to the attorney—
(i) is to be paid to the attorney by the Secretary directly from any
past-due benefits awarded on the basis of the claim; and
(ii) is contingent on whether or not the matter is resolved in a
manner favorable to the claimant.
(B) For purposes of subparagraph (A) of this paragraph, a claim shall be
considered to have been resolved in a manner favorable to the claimant if all or
any part of the relief sought is granted.
(3) To the extent that past-due benefits are awarded in any proceeding before
the Secretary, the Board of Veterans’ Appeals, or the United States Court of
Appeals for Veterans Claims, the Secretary may direct that payment of any
attorneys’ fees under a fee arrangement described in paragraph (1) of this
subsection be made out of such past-due benefits. In no event may the
Secretary withhold for the purpose of such payment any portion of benefits
payable for a period after the date of the final decision of the Secretary, the
Board of Veterans’ Appeals, or Court of Appeals for Veterans Claims making
(or ordering the making of) the award.
38 U.S.C. § 5904.

04-7085 8
 II

We think that section 511’s reference to a “law” is to a single statutory enactment

that bears a Public Law number in the Statutes at Large. Congress has not specifically

defined the term “law,” but both the Constitution and Section 106a of Title 1 of the

United States Code make clear that a law is a bill that has been duly approved by both

Houses of Congress and signed by the President (or enacted over his veto). U.S.

Const., art. I, § 7, cl. 2; 1 U.S.C. § 106a (2000).3 Congress has also made clear that

such laws, once duly enacted, are to be published in the Statutes at Large. 1 U.S.C.

§ 112 (2000). Thus, a “law” is a Public Law appearing in the Statutes at Large. There

is no basis in the statutory language, legislative history, or case authority for construing

the term “law” to be limited to a particular statutory subsection, as the government

urges. Nor is there a basis for construing the term “law,” as the concurrence apparently

seems to do, to be a particular statutory section. The cases cited by the concurrence,

where the term “law” is used to describe a specific section of a statute, can hardly be

read to hold as a matter of statutory construction that the term “law” should be limited to

a particular numbered section of the law. Concurring Op., post at 4 n.2.

3
Titled “Promulgation of laws,” 1 U.S.C. § 106a sets forth the procedures
by which a bill, order, resolution or vote of the Congress, “having been approved by the
President, or not having been returned by him with his objections, becomes a law or
takes effect.”

04-7085 9
 Here, the relevant “law” is the public law that originally enacted section 5904, the

Veterans Act of 1936, ch. 867, 49 Stat. 2031.4 Title II of the Veterans Act of 1936,

entitled “Agents and Attorneys,” was the predecessor of 38 U.S.C. § 5904. Title II

differed from the current section 5904 only in limited respects, including the imposition

of a $10-per-claim limitation on attorney fees (and consequently the absence of a

separate provision regarding contingency fees), and the inclusion of the criminal penalty

provisions for improper practice (now separately codified as 38 U.S.C. § 5905).

Compare Veterans Act of 1936, § 201, 49 Stat. at 2032, with 38 U.S.C. § 5904 (2000).

Title II of the Veterans Act of 1936 has never been repealed and, as noted, has

remained largely unchanged since originally enacted in 1936. The current codification

of section 5904 reflects a series of amendments to the original law, as well as the

placement of that law, together with other laws related to veterans that do not

necessarily involve the provision of benefits, into Title 38. These changes have

transpired through the promulgation of consolidation statutes passed, inter alia in 1958

and 1988. Act of Sept. 2, 1958, Pub. L. No. 85-857, § 3404, 72 Stat. 1105, 1238-39;

Veterans Judicial Review Act, Pub. L. No. 100-687, § 104(a), 102 Stat. 4105, 4108

(1988); renumbered § 5904 and amended by, Department of Veterans Affairs Health-

Care Personnel Act of 1991, Pub. L. No. 102-40, § 402, 105 Stat. 187-238-39; amended

by VPub. L. 102-40, Title IV, § 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239;

amended by, Veterans Programs Enhancement Act of 1998, Pub. L. No. 105-368, §

4
The other provisions of the 1936 Act dealt with related issues: Title I
relaxed restrictions on compensation for World War Widows and Children; Title III
provided the VA with the authority to issue subpoenas, make investigations, and
administer oaths when processing benefits claims; Title IV covered miscellaneous

04-7085 10
512, 112 Stat. 3315, 3341. Neither the history of the amendments to the law, nor its

changing position in the United States Code through the passage of a series of

consolidation statutes, alters the fact that, as originally enacted, 38 U.S.C. § 5904 was

part of a Public Law “that affects the provision of benefits” and therefore is subject to

review by the Board and the Court of Appeals for Veterans Claims under the terms of

38 U.S.C. § 511.

III

The history and purpose of section 511(a) confirm the correctness of our

interpretation. In this connection, some understanding of the history of section 511(a) is

necessary.

With minor exceptions, from the origin of federal provision of veterans’ benefits

until 1988, the Congressional philosophy was that benefits decisions by the executive

should not be subject to judicial review. This philosophy was reflected in the

predecessors to section 511, which generally precluded judicial review of benefits

decisions.

The predecessor to section 511(a), namely section 211(a), was originally

enacted as two separate provisions that were consolidated in 1958, resulting in 38

U.S.C. § 211(a).5 This provision barred judicial review of the Administrator’s decisions

“on any question of law or fact concerning a claim for benefits or payments under any

areas, all relating to benefits claims; and Title V provided hurricane relief for World War
veterans and their dependents. 49 Stat. at 2031-35.
5
The first provision was enacted in 1933, under the Economy Act, ch. 3, 48 Stat. 9
(1933) and the latter in 1940 as an amendment to the World War Veterans’ Act of 1924,
see Act of Oct. 17, 1940, ch. 893, § 11, 54 Stat. 1193, 1197. Frederick Davis, Veterans’
Benefits, Judicial Review, and the Constitutional Problems of “Positive” Government, 39

04-7085 11
law administered by the Veterans’ Administration.” 38 U.S.C. § 211(a) (1958). In

1970, Congress amended the statute expressly to tighten up “an apparent gaping hole”

in the bar to judicial review that had been opened by a line of District of Columbia Circuit

cases narrowly construing the language of the statute to bar review only of initial filings

of claims. H.R. Rep. No. 100-963, at 18 (1988), reprinted in 1988 U.S.C.C.A.N. 5782,

5800 (citing Wellman v. Whittier, 259 F.2d 163 (D.C. Cir. 1958), Tracy v. Gleason, 379

F. 2d 469 (D.C. Cir. 1967), and the Act of August 12, 1970, Pub. L. No. 91-376, § 8(a),

84 Stat. 787, 790) (other citations omitted)). This amendment was intended to preclude

review of “any decision of the Administrator ‘on any question of law or fact under any

law administered by the Veterans’ Administration.’” Id. at 18-19, reprinted in 1988

U.S.C.C.A.N. at 5800.

Thus, prior to 1988, section 211(a) provided that, with the exception of review of

decisions regarding life insurance and small business and housing loans,

[T]he decisions of the Administrator on any question of law or fact under
any law administered by the Veterans’ Administration providing benefits
for veterans and their dependents or survivors shall be final and
conclusive and no other official or any court of the United States shall
have power or jurisdiction to review any such decision by an action in the
nature of mandamus or otherwise.

38 U.S.C. § 211(a) (1982) (codifying Act of Aug. 12, 1970, § 8(a), 84 Stat. at 790). No

independent judicial review of benefits decisions was available. As noted by the

Supreme Court in Johnson v. Robison, 415 U.S. 361 (1974), the two primary purposes

of this pre-1988 version of the provision were “to insure that veterans’ benefits claims

will not burden the courts and the Veterans’ Administration with expensive and time-

Ind. L.J. 183, 186 n.12 (1964) (tracing the 1958 version of section 511(a)—38 U.S.C. §
211(a) (1958)—back through the conversion tables to these two original enactments).

04-7085 12
consuming litigation, and . . . to insure that the technical and complex determinations

and applications of VA policy connected with veterans’ benefits decisions will be

adequately and uniformly made.” Id. at 370 (footnotes omitted). 6

If this objective of precluding judicial review had continued, it would have been

appropriate to give a narrow construction to section 511(a), as is done with all

provisions precluding judicial review. See Abbot Labs. v. Gardner, 387 U.S. 136, 140

(1967) (recognizing a basic presumption in favor of judicial review); see also de Magno

v. United States, 636 F.2d 714, 721 (D.C. Cir. 1980) (“[J]urisdictional limitations are

interpreted narrowly, with an eye both to avoiding potential constitutional difficulties, and

to preserving the Courts’ traditional role of deciding legal disputes.”). But in 1988, the

purpose, but not the language, of this section changed dramatically.

The passage of the Veterans’ Judicial Review Act (“VJRA”) provided veterans

with their day in court. See Forshey v. Principi, 284 F.3d 1335, 1344-45 (Fed. Cir.

2002) (en banc) (summarizing the major changes to judicial review with the enactment

of the VJRA); Beamon v. Brown, 125 F.3d 965, 967 (6th Cir. 1997) (same). As noted by

one of the original House sponsors, the legislation was “intended to produce timely,

consistent, and fair decisions for veterans in a truly independent court which will not be

burdened by other cases having nothing to do with veterans.” 134 Cong. Rec. H9258

(daily ed. Oct. 3, 1988) (statement of Rep. Solomon).

One might have expected this reversal of congressional policy concerning judicial

review to have brought about the repeal of section 211(a). It did not. Rather, section

6
A narrow exception to the foreclosure rule was carved out by the Supreme
Court in Johnson, id. at 367, for certain constitutional challenges to the VA’s actions.

04-7085 13
211(a) continued to broadly bar judicial review of benefits decisions, but an exception

was created for judicial review of such decisions by the newly created Article I court. 38

U.S.C. § 511(b)(4).7 At the same time, Congress added new sections to Title 38,

reflected in today’s versions of Chapters 71 and 72, reforming the existing internal

mechanisms for the review of benefits decisions by the VA regional offices and by the

Board; specifically providing for independent judicial review of the Board’s final

decisions by a new Article I Court of Veterans Appeals (today known as the Court of

Veterans Appeals for Veterans Claims); and providing the Federal Circuit with exclusive

appellate jurisdiction over the decisions of the Court of Appeals for Veterans Claims.

Veterans’ Judicial Review Act, § 301 (codified as amended at 38 U.S.C. § 7251 et seq.).

Section 511(a) (then section 211(a))—originally designed to bar judicial review

entirely—became the provision that defined the scope of the Board’s jurisdiction, and

therefore, that of the new Article I court.8

Thus, the effect of the 1988 legislation was to generally place judicial review of

Secretarial decisions “under a law that affects the provision of benefits” within the

7
Section 211(a) was renumbered as section 511(a) in 1991. Department of
Veterans Affairs Codification Act, Pub. L. No. 102-83, § 2, 105 Stat. 378, 388-89 (1991).
8
In keeping with the new role for the provision, Congress noted that “[t]he
effect of [replacing “under any law administered by the Veterans’ Administration
providing benefits” with “under a law that affects the provision of benefits”] is to broaden
the scope of section 211,” and provided the example of a decision regarding the
potential conflict in VA regulations with another law prohibiting discrimination against
disabled persons as being reviewable through the VA appeals process as a decision
under a law that affects the provision of benefits. H.R. Rep. No. 100-963, at 27,
reprinted in 1988 U.S.C.C.A.N. at 5809.

04-7085 14
specialized review process.9 Congress plainly preferred this approach as a matter of

policy, both because it avoided overburdening the district court system and because the

district courts lacked the necessary expertise. As the House Report noted, the “courts

already have far too many cases to handle,” H.R. Rep. No. 100-963, at 22, reprinted in

1988 U.S.C.C.A.N. at 5804, and the legislation aimed to prevent reviewing courts from

being “put in a position where [they have] no idea of an agency’s views on a particular

legal question.” Id. at 27, reprinted in 1988 U.S.C.C.A.N. at 5809.

In view of the history of section 511(a), we see nothing to suggest that

interpretation of the section in accordance with its plain language would disserve

congressional intent behind the passage of the 1988 legislation. To the contrary, an

interpretation of section 511(a) that generally places review of Secretarial decisions

under a single piece of legislation relating in whole or in part to benefits first in the

Board, and then in the Court of Appeals for Veterans Claims, clearly serves the

congressional purpose.

This is particularly clear from the fact that Secretarial decisions under subsection

5904(b) are, as in this case, also likely to involve interpretations of other subsections

that themselves are subject to the specialized review process. We held in Cox that

subsection 5904(d) is subject to the specialized review process. 149 F.3d at 1365. We

9
The only listed exceptions to this overall scheme were rules and
regulations promulgated by the Secretary which are reviewed directly in this court under
38 U.S.C. §§ 511(b)(1) and 502; insurance disputes, which are reviewable in the district
courts under 38 U.S.C. §§ 511(b)(2) and 1975; and matters arising under Chapter 37,
pertaining to housing and small business loans, which, under 38 U.S.C. §§ 511(b)(3)
and 3720, allow for suits against the Secretary in state or federal court.

04-7085 15
have also held that the Board has jurisdiction over actions taken under subsection

5904(c). See, e.g., Scates v. Principi, 282 F.3d 1362, 1366 (Fed. Cir. 2002) (discussing

Board’s power to assess reasonableness of attorney fees and order their reduction if

necessary under § 5904(c)(2)); Cox, 149 F.3d at 1364 (same); In re Wick, 40 F.3d 367,

369 (Fed. Cir. 1994) (same). One of the grounds for terminating Bates’ certification

was an alleged violation of 38 U.S.C. § 5904(c)(1), for charging attorney fees to various

claimants prior to their receipt of a final Board decision on their claims. Bates was also

initially accused of violating of 38 U.S.C. § 5904(c)(2), for charging unreasonable fees.

The facts of Bates’ case thus illustrate the interrelatedness between the various

subsections of 5904, and the likelihood that any Secretarial action to certify or decertify

an attorney under 38 U.S.C. §§ 5904(a) or (b) will necessarily implicate interpretations

of 38 U.S.C. §§ 5904(c) and (d). To hold that the latter subsections (c) and (d) are

justiciable by the Board, but subsections (a) and (b) are not, would invite piecemeal

adjudication of closely related issues, and undermine the congressional purpose.

IV

The concurrence proposes to depart from the plain meaning interpretation of

section 511 on the theory that the majority’s interpretation of the provision could, in the

case of omnibus statutory enactments, confer jurisdiction over disputes that Congress

could not have intended to refer to the Board, such as disputes over contracts or

employment appeals. Concurring Op., post at 2-3. We need not address this

interpretative issue here, since the law in question is not such an omnibus statutory

enactment. In any event, our holding does not go so far as the concurrence suggests,

and does not confer jurisdiction in the Board over the myriad disputes that may arise

04-7085 16
under every “law” that “affects the provision of benefits.” Section 511(a) does not apply

to every challenge to an action by the VA. As we have held, it only applies where there

has been a “decision by the Secretary.” Hanlin v. United States, 214 F.3d 1319, 1321

(Fed. Cir. 2000). In the context of the history of this provision, the statute plainly

contemplates a formal “decision” by the Secretary or his delegate.

Even where there has been a formal decision by the Secretary, other provisions

of federal law specifically confer jurisdiction on other tribunals to resolve particular

disputes, such as contract or employment disputes. See, e.g., Contract Disputes Act,

41 U.S.C. §§ 606 and 609(a) (2000); 5 U.S.C. § 7701 (2000). As we noted in Hanlin,

with respect to section 511(a) itself, “when two statutes are capable of co-existence, it is

the duty of the courts, absent a clearly expressed congressional intention to the

contrary, to regard each as effective.” Hanlin, 214 F.3d at 1321 (quoting Morton v.

Mancari, 417 U.S. 535, 551 (1974)). Just as we held that section 511(a) cannot be

read to preclude Tucker Act jurisdiction, section 511(a) cannot be read to preclude

jurisdiction in other tribunals when that jurisdiction is specifically conferred by Congress.

Id. at 1322.

In the case of contract and employment disputes, these other review

mechanisms have been held to be exclusive. Contractor appeals may be pursued

exclusively in the Court of Federal Claims or the appropriate agency board of contract

appeals. England v. Sherman R. Smoot Corp., 388 F.3d 844, 852 (Fed. Cir. 2004)

(citing the Contract Disputes Act, 41 U.S.C. §§ 606 and 609(a)). Employment disputes

under the Civil Service Reform Act are exclusively appealable, if at all, to the Merit

Systems Protection Board, under 5 U.S.C. § 7701, as part of the “integrated statutory

04-7085 17
scheme set up by Congress to protect civil servants.” United States v. Fausto, 484 U.S.

439, 444-51, 453 (1988) (holding that Civil Service Reform Act precluded review in the

Court of Federal Claims of the underlying personnel decision giving rise to the claim for

back pay). Nothing we say today suggests that the Board has jurisdiction to review

controversies that are committed by statute to other tribunals.

CONCLUSION

For these reasons we conclude that the Board had jurisdiction; that the Court of

Appeals for Veterans Claims had jurisdiction; and that a writ of mandamus should issue

to direct the Board to decide the matter. Accordingly, the decision of the Court of

Appeals for Veterans Claims is

REVERSED AND REMANDED.

COSTS

No costs.

04-7085 18
United States Court of Appeals for the Federal Circuit

04-7085

R. EDWARD BATES,

Claimant-Appellant,

v.

R. JAMES NICHOLSON, Secretary of Veterans Affairs,

Respondent-Appellee.

BRYSON, Circuit Judge, concurring in the result.

I agree with the result reached by the court in this case, but not with the path the

court follows to reach that result. In particular, I cannot agree with the court’s

construction of the phrase “law that affects the provision of benefits by the Secretary to

veterans or the dependents or survivors of veterans.” 38 U.S.C. § 511(a). I would

construe that phrase to refer only to specific legal provisions that affect the provision of

veterans’ benefits. The court, however, construes that phrase more broadly, to refer to

any public law that contains some veterans’ benefit provisions.

The problem is that public laws, particularly in recent years, have often not been

confined to a single subject. Some public laws run to hundreds of pages and deal with

a myriad of different subjects. Sometimes the multitude of subjects touched upon in a

single public law include veterans’ benefits. For example, the Transportation Equity Act

for the 21st Century, Pub. L. No. 105-178, 112 Stat. 107 (1998), runs to more than 400

pages. Among the various topics in that public law are three pages of provisions
dealing with veterans’ benefits. Under the court’s definition, the entire Transportation

Equity Act is a “law that affects the provision of benefits” for veterans.

The court’s construction of the phrase “law that affects the provision of benefits”

as referring to an entire public law would appear to extend the jurisdiction of the BVA to

a wide range of actions by the Secretary for which BVA appeals have never been

considered appropriate. Consider, for example, the Veterans Health Care, Capital

Asset, and Business Improvement Act of 2003, Pub. L. No. 108-170, 117 Stat. 2042.

That public law contains provisions extending and increasing benefits to veterans in

various classes, and thus it clearly qualifies as a public law that “affects the provision of

benefits” to veterans as the court construes that language in 38 U.S.C. § 511. But that

public law also contains provisions relating to non-benefit-related matters such as the

construction of VA facilities and the promotion and appointment of certain VA

employees. Congress plainly did not intend for disputes arising under the portions of

that public law dealing with employment and construction to be subject to the jurisdiction

of the BVA. Yet that would seem to be the result of the court’s construction of the

phrase “law that affects the provision of benefits.”1

The court’s broad construction of section 511(a) is problematical because of

section 511(b). Section 511(a) provides that the decision of the Secretary as to any

1
The 2003 statute is not unique in this regard. For example, the Veterans
Benefits and Health Care Improvement Act of 2000, Pub. L. No. 106-419, 114 Stat.
1822, contains a number of provisions pertaining to veterans’ benefits, but also contains
other matters plainly outside the contemplation of laws “that affect[ ] the provision of
benefits,” such as provisions governing the pay of VA nurses and transactions involving
the acquisition, disposition, and management of real property. See also, e.g., Veterans
Millennium Health Care and Benefits Act, Pub. L. No. 106-117, 113 Stat. 1545 (1999)
(statute contains provisions regarding veterans’ benefits and provisions pertaining to a
voluntary separation incentive program to reduce the level of employment in the
Department of Veterans Affairs).

04-7085 2
question within its scope “shall be final and conclusive and may not be reviewed by any

other official or by any court, whether by an action in the nature of mandamus or

otherwise.” Section 511(b) contains only four exceptions to section 511(a)’s bar to

review, one of which is the exception that permits review by the Veterans Court. The

other exceptions deal with narrow subject matters: the review of Departmental rules and

regulations in this court; suits in district court on claims related to federally provided

insurance; and suits under chapter 37 of Title 38 relating to housing and small business

loans. Those four exceptions do not include review by specialized tribunals such as the

Merit Systems Protection Board, the agency’s Board of Contract Appeals, or the Court

of Federal Claims. Thus, the court’s construction of section 511 would appear to lead to

the conclusion that certain employment and contract matters would be reviewable by

the BVA and the Veterans Court.

The court resolves the problem of the statutory conflict created by its construction

of section 511 in favor of the statutes that assign jurisdiction over employment and

contract matters to specialized tribunals. But the preferable construction of section 511

is one that does not create such a conflict in the first place. It is clear that Congress did

not intend to create, or believe it was creating, such a conflict in 1970, when it adopted

what is essentially the current language of section 511, see Pub. L. No. 91-376, 84 Stat.

787, 790 (1970), or in 1988 when it amended section 511 to provide for review of

veterans’ benefits matters by the Veterans Court, see Pub. L. No. 100-687, 102 Stat.

4105 (1988). See H.R. Rep. No. 91-1166 (1970), reprinted in 1970 U.S.C.C.A.N. 3723,

3731 (“The restated section [now section 511] will make it perfectly clear that the

Congress intends to preclude from judicial review all determinations with respect to

04-7085 3
noncontractual benefits provided for veterans and their dependents and survivors.”).

Moreover, the court’s resolution of the “specialized tribunal” problem leaves another

problem unaddressed. The court’s construction of section 511 does not solve the

broader problem of non-benefit-related matters that would not be committed under any

circumstances to a specialized tribunal, but would be expected to be reviewed by a

district court under the Administrative Procedure Act. As to such decisions arising

under a public law that contains some veterans’ benefit provisions, the court’s approach

would appear to render such non-benefit-related matters reviewable, if at all, only in the

BVA and the Veterans Court, a result that Congress surely did not intend. Yet to ensure

that such non-benefit-related matters fall outside the jurisdiction of the BVA and the

Veterans Court, one has to circle back to the position that section 511(a) applies only to

disputes arising under particular legal provisions pertaining to benefits.

The best approach, in my view, is simply to construe “law” in section 511 to refer

to particular provisions of law, not to the disparate collection of legal provisions that may

appear in a particular public law.2 Under this construction, the question whether the

2
The court refers to its “public law” construction as the “plain meaning” of section
511. I do not agree. It is certainly true the term “law” includes public laws, but that is
not to say that only public laws are properly referred to as laws. For example, the
statute that grants federal question jurisdiction to federal courts, 28 U.S.C. § 1331,
prescribes the courts’ jurisdiction as being based on the “Constitution, laws, or treaties
of the United States,” yet the term “laws” in that statute has not been limited to public
laws. See Illinois v. City of Milwaukee, 406 U.S. 91, 99-100 (1972) (holding that the
“natural meaning” of the term “laws” includes federal common law as well as statutes).
The court’s citations to the Constitution and Title 1 of the United States Code do not
establish that a single statutory provision is not a “law.” Indeed, it is commonplace to
refer to single statutory sections and subsections as “laws,” and not to reserve that
designation exclusively for whole public laws. See, e.g., Gonzalez v. United States, 275
F.3d 1340, 1343 (Fed. Cir. 2001) (“section 654 [of Public Law 105-85] . . . is a ‘law
conferring rights, privileges, or benefits’ upon certain World War II veterans”); United
States v. Dela Cruz, 358 F.3d 623, 625 (9th Cir. 2004) (“Section 844(e) [of Title 18] is a

04-7085 4
Board has jurisdiction over an appeal would turn on whether the statutory provision in

question “affects the provision of benefits by the Secretary to veterans or the

dependents or survivors of veterans,” i.e., whether the particular statutory provision

relates to the substance or procedures of the veterans’ benefits system. In most cases

that question will be easy to decide: Most of the statutes that pertain to the veterans’

benefits system address subjects such as the conditions for eligibility, the procedures to

be followed in determining eligibility, and the amount of the benefits to be paid.

In this case, the connection between the certification of lawyers and the conferral

of benefits on veterans is not so obvious. Nonetheless, in light of the agency’s

longstanding practice of regulating the representation of veterans so as to ensure that

the beneficiaries obtain and retain the benefits to which they are entitled, statutory

provisions authorizing the certification and regulation of representatives of applicants for

veterans’ benefits are properly regarded as laws “that affect[ ] the provision of benefits.”

On that ground, I would hold that 38 U.S.C. § 5904(b) is such a law and that the Board

of Veterans’ Appeals therefore has jurisdiction to hear appeals from the Secretary’s

decisions under that statute.

In Walters v. National Association of Radiation Survivors, 473 U.S. 305 (1985),

the Supreme Court reviewed the history of the veterans’ benefits system, with particular

attention to the role of attorneys within that system. The Court explained that the

system for administering benefits was designed to be managed “in a sufficiently informal

law of general application”); Rayner v. Smirl, 873 F.2d 60, 65 (4th Cir. 1989) (“Section
441 [of Title 45] clearly is a law ‘relating to railroad safety’ under § 434”). This is not to
say that a statutory section or subsection is the only meaning of the term “law,” but
simply that it cannot reasonably be claimed that the “plain meaning” of the term “law” is
restricted to public laws.

04-7085 5
way that there should be no need for the employment of an attorney to obtain the

benefits to which a claimant was entitled, so that the claimant would receive the entirety

of the award without having to divide it with a lawyer.” Id. at 321. Section 5904(b),

which governs the suspension or exclusion of agents and attorneys who have been

certified to prepare, present, and prosecute claims for veterans’ benefits, has been a

part of the veterans’ benefits system for many years. Along with the other subsections

of section 5904, which govern certification (subsection (a)) and restrictions on fees

charged by agents and attorneys (subsections (c) and (d)), subsection (b) has served

as one of the means by which the agency has sought to ensure that veterans not be

deprived of the benefits to which they are entitled. It is therefore properly considered a

“law that affects the provision of benefits by the Secretary to veterans or the dependents

or survivors of veterans.”

Both the construction of section 511 and the analysis of section 5904(b) that I

have proposed are consistent with our prior decision in Cox v. West, 149 F.3d 1360

(Fed. Cir. 1998). In that case, we upheld the ruling of the Veterans Court that 38 U.S.C.

§ 5904(d) is a law that affects the provision of veterans’ benefits and thus falls within 38

U.S.C. § 511(a). Id. at 1365. The specific provision at issue in Cox authorized the

Secretary to withhold a portion of the past-due benefits owed to a claimant and to pay

those withheld benefits to an attorney. Because section 5904(d) authorized the

Secretary to make decisions that directly affected the amount of the benefits that the

claimant received, the relationship between the statute and the claimant’s benefits was

more direct in Cox than it is here. Nonetheless, the purpose of certification of attorneys

is to ensure that claimants in the veterans’ benefits system are competently and

04-7085 6
honestly represented, to the end that they will receive the full measure of benefits to

which they are entitled, without loss or reduction due to attorney incompetence or

overreaching. Because the purpose underlying section 5904(b) is the same as the

purpose underlying section 5904(d), it is fair to say that section 5904(b) is “a law that

affects the provision of benefits” to veterans and their survivors and dependents. Thus,

although I would not decide this case on the “public law” rationale employed by the

majority, I agree that the writ of mandamus should issue.

04-7085 7