Case: 19-1532 Document: 29 Page: 1 Filed: 04/20/2020
United States Court of Appeals
for the Federal Circuit
______________________
SEAN A. RAVIN,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-1532
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-285, Judge Coral Wong Pietsch,
Judge Joseph L. Falvey, Jr., Senior Judge Robert N. Davis.
______________________
Decided: April 20, 2020
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
ERIC PETER BRUSKIN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by JOSEPH H. HUNT, CLAUDIA BURKE, ROBERT
EDWARD KIRSCHMAN, JR.; CHRISTA A. SHRIBER, JONATHAN
KRISCH, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
Case: 19-1532 Document: 29 Page: 2 Filed: 04/20/2020
2 RAVIN v. WILKIE
______________________
Before LOURIE, CHEN, and STOLL, Circuit Judges.
CHEN, Circuit Judge.
The Department of Veteran Affairs (VA) Regional Of-
fice in Muskogee, Oklahoma (RO) denied an attorney’s re-
quest that the RO withhold his attorney’s fees from an
award of a veteran’s past-due benefits, pursuant to a di-
rect-pay fee agreement with the veteran, and pay those fees
directly to the attorney under 38 U.S.C. § 5904(d). By stat-
ute, an attorney “represent[ing] a person before [VA]” must
“file a copy of any fee agreement” with VA “pursuant to reg-
ulations prescribed by the Secretary.” 38 U.S.C.
§ 5904(c)(2). One such regulation is 38 C.F.R.
§ 14.636(h)(4), which requires the attorney to file “a copy of
the [direct-pay] fee agreement” with “the agency of original
jurisdiction” (the relevant RO) “within 30 days of the date
of execution of the agreement.” Because the attorney did
not comply with that regulatory filing requirement, the
Court of Appeals for Veterans Claims (Veterans Court)
held that VA was not obligated to withhold the attorney’s
fees from the veteran’s past-due benefits and pay those fees
directly to the attorney. Ravin v. Wilkie, 30 Vet. App. 310,
316 (2018). For the reasons explained below, we affirm.
I. BACKGROUND
The appellant, attorney Sean A. Ravin, represented
veteran Norman E. Cook before VA as to Mr. Cook’s claim
for past-due disability benefits. On December 1, 2009, Mr.
Ravin and Mr. Cook entered into an attorney fee agree-
ment entitling Mr. Ravin to “a contingent fee equal to
twenty percent (20%) of past-due benefits awarded due to
or flowing from” his representation of Mr. Cook. The fee
agreement further contemplated that VA would withhold
the contingent fee amount from any past-due benefits
awarded and pay that amount directly to Mr. Ravin.
J.A. 46 (“Client hereby authorizes and directs the VA to
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RAVIN v. WILKIE 3
withhold 20% of past-due benefits awarded and to make
direct payment to Attorney.”); see 38 U.S.C. § 5904(d)(3)
(providing that VA “may” direct payment of the fee “out of
the such past-due benefits” pursuant to an attorney fee
agreement); 38 C.F.R. § 14.636(g)(2) (“A direct-pay fee
agreement is a fee agreement between the claimant . . . and
an . . . attorney providing for payment of fees out of past-
due benefits awarded directly to an . . . attorney.”). Within
a few days of executing the direct-pay fee agreement,
Mr. Ravin sent a copy of the fee agreement to the Board of
Veterans’ Appeals (Board), where it was date stamped as
received on December 11, 2009. No copy of that fee agree-
ment, however, was submitted to the RO “within 30 days
of the date of execution of the agreement,” as required by
38 C.F.R. § 14.636(h)(4). 1
Mr. Cook received a favorable ruling from the Board on
his claim in March 2010, and the RO implemented that de-
cision by awarding past-due benefits to Mr. Cook in April
2010. On April 13, 2010, the Attorney Fee Coordinator at
the RO searched for any attorney fee agreement on file but
did not find one. As a result, the Attorney Fee Coordinator
determined that “no attorney fee decision is required” and
“[a]ll retroactive benefits may be paid directly to the vet-
eran.” J.A. 67. Subsequently, on April 19, 2010, the RO
paid the full amount of past-due benefits to Mr. Cook.
J.A. 80–81.
On April 27, 2010, Mr. Ravin mailed a copy of his di-
rect-pay fee agreement with Mr. Cook to the RO and re-
quested direct payment of his attorney’s fees from Mr.
Cook’s past-due benefits. J.A. 72–79. The RO subse-
quently informed Mr. Ravin that it had not withheld his
attorney’s fees from Mr. Cook’s past-due benefits payment
1 The applicable regulations are those in effect at the
time of execution of the fee agreement in December 2009.
See J.A. 46–50.
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4 RAVIN v. WILKIE
and that it thus would not directly pay those fees to Mr.
Ravin. The RO explained that Mr. Ravin’s direct-pay fee
agreement was “not timely filed” in accordance with
38 C.F.R. § 14.636(h)(4) because Mr. Cook had failed to file
a copy of the fee agreement with the RO within 30 days of
its execution. J.A. 80–82.
Mr. Ravin filed a Notice of Disagreement with the RO’s
decision, and the Board denied his claim for payment of at-
torney’s fees by VA. After a long procedural history, the
Veterans Court issued the decision now on appeal to this
court, in which the Veterans Court affirmed the Board’s de-
nial of Mr. Ravin’s claim.
II. DISCUSSION
We have jurisdiction to review challenges to Veterans
Court decisions regarding the interpretation or validity of
a statute or regulation. 38 U.S.C. § 7292(c). In conducting
that review, we must “decide all relevant questions of law.”
38 U.S.C. § 7292(d)(1). “[S]tatutory interpretations by the
Veterans Court are reviewed de novo” by this court. Cook
v. Principi, 353 F.3d 937, 938 (Fed. Cir. 2003). “Interpre-
tations of regulations . . . may only be set aside if they are:
‘(A) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (B) contrary to constitu-
tional right, power, privilege, or immunity; (C) in excess of
statutory jurisdiction, authority, or limitations, or in viola-
tion of a statutory right; or (D) without observance of pro-
cedure required by law.’” Id. (quoting 38 U.S.C.
§ 7292(d)(1)). At issue here is the interpretation of
38 U.S.C. § 5904(d) and 38 C.F.R. § 14.636(g)(3) and (h)(4).
Section 5904 establishes the framework for attorneys
to represent benefits claimants at VA on a contingent-fee
basis. It provides, among other things, that the parties
may agree that the contingent fee “is to be paid to the agent
or attorney by the Secretary directly from any past-due
benefits awarded on the basis of the claim.” 38 U.S.C.
§ 5904(d) (statutory provision for direct payment of
Case: 19-1532 Document: 29 Page: 5 Filed: 04/20/2020
RAVIN v. WILKIE 5
contingent fees). The statute then provides that, when
there is such a direct-pay fee agreement, “[t]o the extent
that past-due benefits are awarded in any proceeding . . .
the Secretary may direct that payment of any fee to an
agent or attorney . . . be made out of such past-due bene-
fits.” 38 U.S.C. § 5904(d)(3) (emphasis added).
Further, § 5904(c)(2) provides that an attorney who
“represents a person before the Department [of Veteran Af-
fairs] . . . shall file a copy of any fee agreement between
them with the Secretary pursuant to regulations prescribed
by the Secretary.” 38 U.S.C. § 5904(c)(2) (emphases added).
As relevant here, the “regulations prescribed by the Secre-
tary” are 38 C.F.R. § 14.636(g)(3) and (h)(4), which set forth
the 30-day filing requirement. Sections 14.636(g)(3) and
(h)(4) require attorneys to file direct-pay fee agreements
with the VA’s “Office of the General Counsel” and “the
agency of original jurisdiction within 30 days of the date of
execution of the agreement.” The “agency of original juris-
diction” in this case is the Muskogee RO. See 38 C.F.R.
§ 14.627(b) (The “[a]gency of original jurisdiction means
the VA activity or administration that made the initial de-
termination on a claim or matter or that handles any sub-
sequent adjudication of a claim or matter in the first
instance.”).
Mr. Ravin concedes that he did not comply with the
regulatory requirements relating to filing his direct-pay fee
agreement with VA. His main contention in this appeal is
that 38 U.S.C. § 5094(d)(3) mandates VA to withhold and
directly pay attorney’s fees from a past-due benefits award
when there is an otherwise valid direct-pay fee agreement,
and that the Veterans Court misinterpreted 38 C.F.R.
§ 14.636(g)(3) and (h)(4) to override the statutory mandate
of § 5094(d)(3). Appellant’s Br. at 7–8. The problem for Mr.
Ravin is that no such mandate exists in the statute.
As in any case of statutory construction, our analysis
begins with the language of the statute. Estate of Cowart
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6 RAVIN v. WILKIE
v. Nicklos Drilling Co., 505 U.S. 469 (1992). Section
5904(d)(3) provides that “[t]o the extent that past-due ben-
efits are awarded . . . the Secretary may direct that pay-
ment of any fee to an agent or attorney under a fee
arrangement.” 38 U.S.C. § 5094(d)(3) (emphasis added).
We agree with the Veterans Court that the plain language
of § 5904(d)(3) cannot be read as mandatory. The fact that
§ 5904(d)(3) uses the term “may” means the statute should
not be read as mandatory. See Andersen Consulting v.
United States, 959 F.2d 929, 932 (Fed. Cir. 1992) (“The use
of the permissive ‘may’ instead of the mandatory ‘shall,’ [in
a statute] authorizes the board to employ its discre-
tion . . . .”).
Where the statutory language provides a clear answer,
the analysis ends there. Hughes Aircraft Co. v. Jacobson,
525 U.S. 432, 438 (1999). “Beyond the statute’s text, [the
‘traditional tools of statutory construction’] include the
statute’s structure, canons of statutory construction, and
legislative history.” Timex V.I. v. United States, 157 F.3d
879, 882 (Fed. Cir. 1998). Here, since the language of
§ 5904(d)(3) is clear on whether its directive is mandatory
or permissive, it is not necessary for us to go beyond the
statutory language. Mr. Ravin’s reliance on Snyder v. Prin-
cipi, 15 Vet. App. 285 (2001) is of no help, because the Vet-
erans Court in that case held that direct payment is
mandatory “if the statutory and regulatory requirements
are met.” Id. at 291.
Moreover, we reject Mr. Ravin’s assertion that the 30-
day filing requirement of 38 C.F.R. § 14.636(g)(3) and (h)(4)
is unenforceable. The Secretary “has authority to prescribe
all rules and regulations which are necessary or appropri-
ate to carry out” Congress’s statutory directives. 38 U.S.C.
§ 501(a). In § 5904, Congress expressly confirmed the Sec-
retary’s authority in the context of filing attorney fee agree-
ments by providing that an “attorney . . . shall file a copy of
any fee agreement . . . with the Secretary pursuant to reg-
ulations prescribed by the Secretary.” 38 U.S.C.
Case: 19-1532 Document: 29 Page: 7 Filed: 04/20/2020
RAVIN v. WILKIE 7
§ 5904(c)(2) (emphasis added). “If Congress has explicitly
left a gap for the agency to fill, there is an express delega-
tion of authority to the agency to elucidate a specific provi-
sion of the statute by regulation.” Chevron U.S.A. Inc. v.
Nat. Res. Def. Council, Inc., 467 U.S. 843–44 (1984). “Such
legislative regulations are given controlling weight unless
they are arbitrary, capricious, or manifestly contrary to the
statute.” Id. We agree with the Veterans Court that the
30-day filing requirement of 38 C.F.R. § 14.636(g)(3) and
(h)(4), which is intended to allow VA to process direct-pay
fee agreements as efficiently as possible, is eminently rea-
sonable. 30 Vet. App. at 316. The facts in this case, where
the RO had already paid the veteran the full amount of
past-due benefits before learning of the direct-pay fee
agreement, illustrate the need for such a regulatory filing
requirement.
Next, Mr. Ravin argues that VA’s decision constitutes
an improper “forfeiture of the attorney fee,” given that none
of the statutory and regulatory provisions explicitly set
forth a “penalty” for failing to timely file a fee agreement.
Appellant’s Br. at 8, 14. As an initial matter, we note that
Mr. Ravin’s earned fees have not been forfeited, as he re-
mains entitled to use all available remedies to obtain them
from his client, Mr. Cook, per their fee agreement. As the
Veterans Court correctly observed, VA has not seized or de-
nied Mr. Ravin his fees; “it only has decided not to enter
the role of paymaster because the appellant did not meet
the requirements necessary for it to do so.” 30 Vet. App. at
315.
We also agree with the Veterans Court that the natu-
ral, logical consequence of an attorney not complying with
the direct-pay fee agreement regulations is that VA need
not provide direct payment. Id. As already explained, VA
“may,” not shall, by statute provide for direct payment of
fees per an attorney fee agreement. 38 U.S.C. § 5904(d)(3).
38 C.F.R. § 14.636(g) and (h), entitled “Fee agreements”
and “Payment of fees by Department of Veterans Affairs
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8 RAVIN v. WILKIE
directly to an agent or attorney from past-due benefits,”
enumerate several requirements relating to direct-pay fee
agreements under this rule. One of those requirements is
the 30-day filing requirement with “the agency of original
jurisdiction” in § 14.636(h)(4). The clear import of the reg-
ulation’s structure is that VA will not assist in collecting
any attorney’s fees when the enumerated requirements are
not met. Further, we see no evidence that such a conse-
quence for failing to adhere to the regulatory filing require-
ment is arbitrary, capricious, or manifestly contrary to the
statute.
CONCLUSION
We have considered Mr. Ravin’s remaining arguments,
but we find them unpersuasive. Accordingly, we affirm the
decision of the Veterans Court.
AFFIRMED