Wells: Expeditious Payment of Attorney Fees

Wells v. McDonough, Opinion Number 20-5221, was decided June 23, 2022 and involved a writ of mandamus related to payment of attorney fees.

The VA system allows for attorney fees and one method of payment is for the attorney to limit their fee to 20% of the past due benefits and then be paid by the VA directly.  After a fee decision is made the VA then waits 60 days to ensure the veteran has not challenged the fee and then is supposed to release it.  The truth is the VA frequently takes months beyond the 60 days to pay attorneys.  This delay can be incredibly detrimental to attorneys who are in fact small businesses and need to generate cash flow to operate and continue to represent other attorneys.  The lack of transparency in when and how to communicate to ensure payment of the fee is problematic.

Mr. Wells is an attorney who was fed up with the delays and asked the Court to order the VA to expeditiously pay outstanding attorney fees and order the Secretary to allow for waiver of the 60 days by the veteran.  The writ was denied.

Crucial to the case, Attorney Wells complained of 10 cases where fees were owed.  As a result of the writ, the Secretary quickly paid 9 of those claims and had instructed the finance department to pay the other fee.  The Secretary essentially tried to moot out the petition. 

The Court determined the issue was not moot after the attorney pointed to additional claims where fees were only paid after a long time.  However, the Court decided the 60 day delay is required by the law. As to undue delay, the Court essentially found the delays allowed because they “apparently result from the agency's efforts to balance its obligations to preserve veterans' appellate rights and to ensure timely payment of representatives.”

The case demonstrates the Court’s extreme solicitude toward the VA and the difficulty of sustaining a veteran’s benefits centered law practice.  While it might seem like attorneys looking out for themselves, the reality is that the number of attorneys who will assist veterans is directly related to the ability to make a living.  The failure to pay attorneys in a timely manner jeopardizes representation. 

Per Curium decision by Chief Judge Bartley and Judges Greenberg and Jaquith.

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