Appealed from: United States Court of Veterans Appeals
Before Lourie, Circuit Judge, Archer, Senior Circuit Judge, and Rader, Circuit Judge.
The opinion of the court was delivered by: Lourie, Circuit Judge.
Judge Jonathan R. Steinberg
Hugh D. Cox appeals from the decision of the United States Court of Veterans Appeals denying his petition for a writ of mandamus. In re Fee Agreement of Cox, No. 95-1068, 10 Vet. App. 361 (1997). Cox sought a writ compelling the Board of Veterans' Appeals to issue a final decision on his claim for attorneys' fees. The court declined to issue the writ after determining that Cox had an alternative remedy that obviated the need for such extraordinary relief. Because it now appears that Cox has pursued the alternative remedy to no avail, we vacate and remand for reconsideration of the propriety of issuing the writ.
Cox, an attorney, was retained to represent a veteran in a benefits matter at the Department of Veterans Affairs (VA). Cox and the veteran agreed to a contingency fee arrangement whereby Cox would receive 20% of any past-due benefits that the VA awarded to the veteran. As provided by 38 U.S.C. § 5904(d)(2)(A) (1994), Cox and the veteran agreed that Cox's fee would be paid "by the Secretary directly from any past-due benefits awarded on the basis of the claim." After the veteran prevailed in his claim, the VA mistakenly paid him all past due benefits, inadvertently failing to withhold 20% for Cox. Upon learning that the veteran had succeeded in his claim, Cox requested that the regional office of the VA pay him his fee. The regional office responded that "[p]ayment was made to the claimant and the VA will be unable to pay your fee from past due benefits as these benefits have already been disbursed. We regret the error but any adjustment of the fee must be arranged between you and [the veteran]."
Cox petitioned the Court of Veterans Appeals seeking a writ of mandamus to compel the Secretary of Veterans Affairs to show cause why he should not immediately pay the fees to which Cox claimed to be entitled. The court denied the writ, holding that "[i]n light of the provisions of 38 C.F.R. § 20.609(i), which permit a party to a fee agreement to petition the Board for review of the agreement, the Court finds that [the] petitioner has not demonstrated a compelling basis for issuance of a writ of mandamus because of the availability of [that] potentially adequate alternative remedy." In re Smith, 4 Vet. App. 487, 500 (1993), vacated-in-part and remanded sub nom. In re Wick, 40 F.3d 367 (Fed. Cir. 1994).
Cox then filed a motion asking the Board of Veterans' Appeals to order payment of the fee. The Board declined to act on Cox's motion pending resolution by this court of the case of In re Wick, 40 F.3d 367 (Fed. Cir. 1994), which presented the issue whether the Secretary is obligated to pay a fee that he erroneously failed to withhold from a past-due veteran's award. Following this court's decision in In re Wick, holding that the Court of Veterans Appeals lacked jurisdiction to compel the Secretary to pay an attorney's fee in the absence of a Board decision for it to review, Cox renewed his motion at the Board. The Board again declined to act. A May 1995 letter from the Board's Deputy Vice Chairman informed Cox as follows:
I have found no authority that would allow the Board to issue an order compelling the [regional office] to pay a fee to an attorney when the client/claimant had received all the past- due benefits awarded. Indeed, [because the VA cannot withhold future benefits of a veteran, the] VA has no legal authority to pay attorney fees when payment of the complete amount of past-due benefits has been made to the claimant.
Cox filed another motion requesting that the Board issue a final decision one way or the other for the express purpose of creating jurisdiction in the Court of Veterans Appeals. The Board again declined to issue a final decision, and the Deputy Vice Chairman responded that "the Board has no authority to order the regional office to pay a fee to an attorney in the circumstances of this case."
Nearly two years after first requesting relief from the Court of Veterans Appeals, Cox once again sought a writ from the court. This time, however, Cox's request was more modest than the first. Cox sought a writ of mandamus only to compel the Board to issue a final decision on his petition for attorneys' fees.
The court acknowledged that pursuant to the All Writs Act (AWA), 28 U.S.C. § 1651(a) (1994), it had the power to issue a writ of mandamus compelling the Board to issue a final decision. The court determined that such a writ would be justified "in aid of" the court's jurisdiction under the AWA because, absent a final decision by the Board, the court lacked jurisdiction under 28 U.S.C. § 7252(a) (1994). See In re Wick, 40 F.3d at 373 (holding that a Board decision is required to vest the Court of Veterans Appeals with jurisdiction over a claimant's appeal). However, as before, the court declined to issue the writ after finding that Cox had an alternative means to obtain relief. Specifically, the court held that that alternative was for Cox to treat the letter from the regional office as a decision by the Secretary under 38 U.S.C. § 511(a) (1994) and to file a notice of disagreement (NOD) with that decision. The court stated that once Cox filed an NOD, the Board would have jurisdiction over his claim under 38 U.S.C. § 7104(a) (1994) ("All questions in a matter which under section 511(a) of this title is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board."). Cox now appeals to this court, asserting that the denial of the writ was an abuse of discretion because it was based on the erroneous Conclusion that his filing of an NOD would vest the Board with jurisdiction over his claim.
Our jurisdiction over cases from the Court of Veterans Appeals is limited. We may only "review and decide any challenge to the validity of any statute or regulation or any interpretation thereof brought under this section, and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." 28 U.S.C. § 7292(c) (1994). This appeal requires that we review the Court of Veterans Appeals' interpretation of the AWA and various sections of title 38 that provide the ...