Rosinski v. Wilkie, Case Number 17-3293, decided January
30, 2020 discusses a line of cases involving what happens when an attorney is
to be paid 20% of past-due benefits owed the veteran, but what the veteran
would be owed is reduced for other reasons, in this case military retirement
pay.
The Court framed the issue as:
The discrete question is whether
section 5904 requires VA to pay fees to an attorney who obtains a disability
rating of less than 50 percent for a veteran receiving military retirement pay—or,
whether section 5304 forecloses such payments to attorneys. In Snyder v.
Nicholson, 489 F.3d 1213 (Fed. Cir. 2007), the Federal Circuit held that 38
U.S.C. § 5313, a statutory limitation on payments to incarcerated veterans, did
not alter VA's obligation to pay attorneys fees under section 5904(d)(1)
because section 5313 did not purport to change the monthly compensation awarded
on the basis of the veteran's claim but merely served as a withholding device
for full payment of benefits otherwise lawfully established. Because Snyder's
reasoning—as explained in subsequent cases—applies equally to section 5304, the
Court reverses the Board's ruling and directs the Secretary to pay Mr. Rosinski
the fees to which he is entitled under section 5904(d)(1).
Id. at *1-2.
The Court noted:
This case marks the fourth in a line
of attorneys fees decisions examining VA's obligations to pay attorneys fees
under section 5904. The first and most significant of these cases is Snyder, in
which the Federal Circuit defined various terms within section 5904 and
examined whether VA's obligation to pay attorneys fees was countermanded by a
separate statute, section 5313, which limited the monthly compensation payments
that an incarcerated veteran could receive on a successful claim. 489 F.3d
1213. The next two decisions, Jackson v. McDonald, 635 F.App'x 858 (Fed. Cir.
2015), and Gumpenberger v. Wilkie, 31 Vet.App. 33 (2019), refined Snyder's interpretation
of section 5904 and applied it to other scenarios.
Framed in the most general terms, the
question on appeal is whether Snyder's reasoning applies equally to section
5304 and obligates VA to pay attorneys fees even where the veteran receives a
rating below fifty percent and hasn't waived retirement pay. Insofar as this
question involves interpretation of section 5904, our task is made easier by the
fact that Snyder already set out what various terms mean, with Jackson and
Gumpenberger providing an assist.
Id. at *4.
In summary, Snyder dealt with incarcerated veterans (finding
attorneys were owed the amount that would have been paid if the veteran was not
limited to a lesser amount by reasons or incarceration); Jackson dealt with a
recently deceased veteran; Gempenberger dealt with a fugitive felon.
The Court hashed through the Snyder and related analysis and
ultimately determined:
What follows here is largely a
restatement of our earlier analysis. Snyder established that
VA renders an award on a veteran's
claim when it completes the non-mechanical judgments of assigning a disability rating and
effective date. Snyder clearly established that VA's obligations under section
5904 to pay attorneys fees are not affected by additional statutory limitations
on a particular veteran's ability to receive payment as those do not affect the
amount "awarded on the basis of the claim." VA, for example, may run
afoul of the Appropriations Clause if it decided to disregard section 5304 and
pay a veteran who hasn't waived retirement pay an award of less than 50
percent. However, the Snyder line of cases establishes that VA's obligations to
attorneys under
section 5904 are to be determined by
the amount awarded, not by the amount the veteran is actually entitled to
receive. Under such reasoning, payment to attorneys does not fall afoul of the Appropriations
Clause even where a separate provision limits payment to the claimant.
Id. at *16.
Judge Meredith dissented largely focusing on the fiscal
impact on the Treasury. She wrote:
by finding generally that "VA's
obligations to attorneys under section 5904 are to be determined by the amount
awarded, not by the amount the veteran is actually entitled to receive,"
the majority fails to give due meaning to the term "past-due." Ante
at 16. The result here is that the veteran was paid 100% of the benefits that
he was awarded and entitled to receive (albeit in the form of retirement pay)
and VA must pay an additional 20% to the appellant—i.e., the United States will
pay 120% for the period from May 2011 to January 2014.
Id. at *22-23.
Both parties have asked for an en banc ruling in this
case. However, I cannot see how the case
is not governed by the Federal Circuit decision in Snyder and do not foresee any
change in the result.
Decision by Judge Toth and joined in by Judge Bartley with a
dissent by Judge Meredith.
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