Snyder v. Secretary of Veterans Affairs , 858 F.3d 1410 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
KEITH D. SNYDER,
Petitioner
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent
______________________
2016-1529
______________________
Petition for review pursuant to 38 U.S.C. Section 502.
______________________
Decided: June 8, 2017
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for petitioner.
SHARI A. ROSE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by ERIC
PETER BRUSKIN, SCOTT D. AUSTIN, ROBERT E. KIRSCHMAN,
JR., BENJAMIN C. MIZER; Y. KEN LEE, BRYAN THOMPSON,
Office of General Counsel, United States Department of
Veterans Affairs.
______________________
Before MOORE, TARANTO, and CHEN, Circuit Judges.
2 SNYDER v. SECRETARY OF VETERANS AFFAIRS
MOORE, Circuit Judge.
Keith D. Snyder petitions for review of a precedential
opinion of the Department of Veterans Affairs’ (“VA”)
General Counsel. Mr. Snyder requests that we hold
unlawful and set aside the General Counsel opinion based
on its misinterpretation of 38 U.S.C. §§ 5121 and 5904.
For the reasons discussed below, we deny Mr. Snyder’s
petition.
BACKGROUND
Mr. Snyder began representing a veteran, Larry S.
Beck, in February 2001 pursuant to a fee agreement
under 38 U.S.C. § 5904. The fee agreement required
Mr. Beck to pay Mr. Snyder a fee “equal to 20 percent of
the total amount of any past-due benefits awarded” for
Mr. Beck’s claim with the VA. J.A. 2. Eight months later,
Mr. Snyder sent the Board of Veterans’ Appeals (“Board”)
a letter stating “irreconcilable differences have arisen
such that my continued representation of Mr. Beck is not
possible,” and requested that his fee agreement be can-
celled effective immediately. J.A. 31.
In June and August 2003 the VA granted Mr. Beck
service connection and awarded past-due benefits based
on a 100% disability rating effective June 24, 1992.
Despite the fact that he had terminated his representa-
tion of Mr. Beck nearly two years earlier, after Mr. Beck’s
victory, Mr. Snyder sought attorney fees pursuant to his
§ 5904 fee agreement based on the past-due benefits
awarded to Mr. Beck. A VA regional officer (“RO”), based
on Mr. Snyder’s presentation of the initial fee agreement,
determined that Mr. Snyder was entitled to $41,920.47
(20% of the past-due benefits), which were to be deducted
from the past-due benefits otherwise due to Mr. Beck.
Because Mr. Snyder had terminated his representation of
Mr. Beck and not participated in the nearly two years of
proceedings which lead to Mr. Beck’s successful recovery
of his veteran’s benefits, Mr. Beck contested the attorney
SNYDER v. SECRETARY OF VETERANS AFFAIRS 3
fee award Mr. Snyder claimed he was entitled to.
Mr. Beck filed a notice of disagreement objecting to
Mr. Snyder’s request for fees. On November 21, 2005, the
Board remanded the fee determination back to the RO to
readjudicate Mr. Snyder’s eligibility for fees. Mr. Beck
died in December 2006 while the fee dispute was pending.
Mr. Beck’s widow sought to recover the disputed fees
in the form of accrued benefits. Accrued benefits are due
and unpaid periodic monetary benefits “to which the
individual was entitled at death under existing ratings or
decisions or those based on evidence in the file at date of
death.” 38 U.S.C. § 5121(a). A veteran’s surviving spouse
may recover accrued benefits upon the veteran’s death.
Id. § 5121(a)(2)(A). The RO denied Mrs. Beck’s request
for accrued benefits and Mrs. Beck pursued her claim
with the Board.
In February 2008, the Board issued two decisions re-
lated to the attorney fees dispute. The Board dismissed
Mr. Beck’s pending dispute over attorney fees pursuant to
38 C.F.R. § 20.1302, which requires dismissal of a veter-
an’s pending appeal before the Board upon the veteran’s
death. The Board separately remanded Mrs. Beck’s claim
for accrued benefits to the RO. The RO determined
Mrs. Beck could not recover the disputed attorney fees
because her husband’s claim ceased to exist upon his
death and notified Mr. Snyder of his entitlement to
$41,920.47 in attorney fees. Mrs. Beck appealed the RO’s
determination and the Board requested an opinion from
the VA’s General Counsel.
On December 3, 2015, the General Counsel published
a precedential opinion stating in relevant part:
A claim, pending at the time of a veteran’s death,
challenging an attorney’s entitlement to payment
of attorney fees under section 5904 from the vet-
eran’s retroactive periodic monetary benefits may
provide a basis for an accrued benefits claim un-
4 SNYDER v. SECRETARY OF VETERANS AFFAIRS
der section 5121, because such a claim concerns
entitlement to periodic monetary benefits alleged-
ly due and unpaid to the veteran at the time of
death.
J.A. 70. Mr. Snyder petitions for review of the General
Counsel opinion pursuant to 38 U.S.C. § 502. Mr. Snyder
and Mrs. Beck’s attorney fee dispute remains pending
before the Board.
DISCUSSION
A. Jurisdiction
We can directly review actions of the Secretary to
which 5 U.S.C. §§ 552(a)(1) or 553 refer pursuant to 38
U.S.C. § 502. Section 552(a)(1) refers to certain agency
actions that must be published in the Federal Register.
Section 553 refers to agency rulemaking that must comply
with notice-and-comment procedures under the Adminis-
trative Procedure Act. There is one exception to this
grant of jurisdiction: “if such review is sought in connec-
tion with an appeal brought under the provisions of
chapter 72 of this title, the provisions of that chapter shall
apply rather than the provisions of chapter 7 of title 5.”
38 U.S.C. § 502.
The Secretary argues we lack jurisdiction over
Mr. Snyder’s petition because Mr. Snyder seeks review of
a VA action in connection with his case before the Board,
which § 502 excludes from our review. The Secretary
argues we lack jurisdiction to review General Counsel
opinions issued in response to a request from the Board.
Secretary Br. 7–10 (citing Paralyzed Veterans of Am. v.
Sec’y of Veterans Affairs, 308 F.3d 1262 (Fed. Cir. 2002)).
We do not agree.
Precedential General Counsel opinions must be pub-
lished in the Federal Register and are expressly subject to
§ 552(a)(1). A precedential General Counsel opinion is a
formal agency action that is binding on the Board. 38
SNYDER v. SECRETARY OF VETERANS AFFAIRS 5
U.S.C. § 7104(c); 38 C.F.R. § 19.5. The VA’s regulations
specify that by designating a General Counsel opinion
precedential, the opinion “shall be considered by the
Department of Veterans Affairs to be subject to the provi-
sions of 5 U.S.C. § 552(a)(1).” 38 C.F.R. § 14.507(b);
compare with id. § 14.507(a) (explaining General Counsel
opinions designated as advisory are instead subject to
§ 552(a)(2)). The Secretary is statutorily required to
ensure rules announced “with respect to opinions and
interpretations of the General Counsel” are published in
the Federal Register in compliance with § 552(a)(1). 38
U.S.C. § 501(c).
The General Counsel opinion before us is an action of
the Secretary to which § 552(a)(1)(D) refers. Sec-
tion 552(a)(1)(D) refers to agency actions that announce
“substantive rules of general applicability . . . and state-
ments of general policy or interpretations of general
applicability” that must be published in the Federal
Register. The General Counsel opinion is designated as
precedential and thus is binding on the Board. J.A. 70; 38
U.S.C. § 7104(c) (“The Board shall be bound in its deci-
sions by . . . the precedent opinions of the chief legal
officer of the Department.”). It is a VA action that must
be published in the Federal Register. See 38 U.S.C.
§ 501(c); 38 C.F.R. § 14.507(b). It announces a rule that
readily falls within the broad category of rules and inter-
pretations encompassed by § 552(a)(1)(D). The General
Counsel opinion reviews the language of 38 U.S.C.
§§ 5121 and 5904 and implementing regulations, deter-
mines neither the statutes nor regulations directly an-
swer the question presented, and announces a new rule.
J.A. 74–75. The General Counsel’s announcement of this
rule in a precedential opinion makes clear that it is an
action of the Secretary to which § 552(a)(1) refers.
That the General Counsel’s opinion was issued in re-
sponse to a request from the Board does not alter our
conclusion. Nothing in the statute limits our review to
6 SNYDER v. SECRETARY OF VETERANS AFFAIRS
only some precedential General Counsel opinions. Sec-
tion 502 requires that our jurisdiction to review the
General Counsel opinion fall under 38 U.S.C. § 7292 only
if Mr. Snyder sought review of the opinion in connection
with his appeal. But Mr. Snyder did not seek review of
the opinion in connection with his appeal. Instead, he
sought review pursuant to § 502 under which the General
Counsel opinion clearly falls. To the extent the Secretary
contends our holding is inconsistent with Paralyzed
Veterans of America, that decision came after our decision
in Splane v. West, 216 F.3d 1058 (Fed. Cir. 2000), which
controls in this case. See Splane, 216 F.3d at 1062 (hold-
ing we had jurisdiction to review a precedential General
Counsel opinion requested by the Board pursuant to
§ 502). Whenever two cases decided by our court are in
apparent conflict, we adopt the first in time and follow it.
Newell Companies, Inc. v. Kenney Mfg. Co., 864 F.2d 757,
765 (Fed. Cir. 1988) (“Where there is direct conflict, the
precedential decision is the first.”). The precedential
General Counsel opinion falls squarely under
§ 552(a)(1)(D) and is thus reviewable pursuant to § 502.
B. General Counsel Opinion
Mr. Snyder argues the General Counsel wrongly
concluded that a pending claim for attorney fees under 38
U.S.C. § 5904 may provide a claim for accrued benefits
under 38 U.S.C. § 5121. He argues that because 38 C.F.R.
§ 20.1302 requires dismissal of a veteran’s pending appeal
upon his death, a pending dispute over attorney fees
under § 5904 terminates upon the veteran’s death. We do
not agree.
The General Counsel’s conclusion is the one we would
reach independently. Section 5904 provides for the pay-
ment of attorney fees from “past-due benefits awarded on
the basis of the claim” in which the attorney represented
the veteran. 38 U.S.C. § 5904(d). Attorney fees are paid
pursuant to § 5904 by deducting those fees from the
SNYDER v. SECRETARY OF VETERANS AFFAIRS 7
veteran’s past-due benefits. Id. § 5904(d)(3). Sec-
tion 5121 provides for the recovery of “[p]eriodic monetary
benefits . . . due and unpaid” at the time of a veteran’s
death based on “existing ratings or decisions or those
based on evidence in the file at date of death.” Id.
§ 5121(a). The General Counsel’s conclusion gives effect
to both statutes. Because § 5904 attorney fees are de-
ducted from a veteran’s past-due benefits, disputed attor-
ney fees constitute a dispute over a veteran’s awarded
benefits. A veteran’s widow can seek to recover disputed
attorney fees pursuant to § 5121 because the claim by
“the accrued benefits claimant would be a claim of enti-
tlement to a portion of periodic monetary benefits alleged-
ly due and unpaid to the veteran.” J.A. 74. That 38
C.F.R. § 20.1302 requires dismissal of a veteran’s appeal
upon his death has no bearing on a claimant’s separate
entitlement to accrued benefits under § 5121. If the
evidence on file at the date of the veteran’s death shows
entitlement to due and unpaid periodic monetary benefits,
an accrued benefits claimant can pursue those benefits
under § 5121. We thus uphold the General Counsel’s
opinion.
CONCLUSION
For the reasons discussed above, we deny Mr.
Snyder’s petition to hold unlawful and set aside the
General Counsel’s opinion.
DENIED
COSTS
Costs to the Secretary.