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July 15, 2021

Single Judge Application; ‘an agency literally has no power to act . . . unless and until Congress confers power upon it.'” Id. (quoting La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986)). So, for example, federal agencies differ from federal courts in that the former have no “inherent equitable powers.” Liu v. SEC, 140 S. Ct. 1936, 1946-47 (2020); predicate-act canon. ANTONIN SCALIA & BRYAN A. GARNER, READING 4 LAW 192 (2012);

Filed under: Uncategorized — Tags: — veteranclaims @ 11:48 am

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-2940
MICHAEL R. VITERNA, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
TOTH, Judge: The appellant, attorney Michael R. Viterna, agreed to represent a claimant
on a contingent basis before VA. Their agreement specified that any fee would be paid directly to
Mr. Viterna by the Secretary from past-due benefits awarded and that the contract applied only to
claims in which a Notice of Disagreement (NOD) was filed after a certain date. The claimant
succeeded on her claim and received an award of past-due benefits, but since the NOD in her case
was filed before the date in the agreement, the Board determined that Mr. Viterna was not entitled
to a fee. He now appeals, arguing that the Board had no authority to deny a fee on such grounds.
Because the Board was allowed to review a direct-pay fee agreement to determine whether one of
its explicit terms makes it inapplicable to the claim before at issue, the Court affirms.
This case, like all appeals to this Court, originates with a veteran. Willie Pitts, Jr. served in
the Army from 1952 to 1955 and again from 1979 to 1983. He died in March 2001 from
cardiopulmonary arrest and metastatic pancreatic cancer. The following month, his surviving
spouse, Pauline O. Pitts, sought dependency and indemnity compensation (DIC) on the theory that
his death was service connected. The regional office denied the claim and Mrs. Pitts, then
represented by the American Legion, filed an NOD, which VA received on October 17, 2005. R.
2
at 944. After VA continued its denial, she appealed to the Board. Following a remand to VA not
relevant here, the Board denied service connection for the cause of the veteran’s death.
In April 2012, Mrs. Pitts retained Mr. Viterna. The fee agreement, drafted by Mr. Viterna,
specified that it did “not become effective until received and countersigned by the Attorney and is
only effective as to those claims for which a notice of disagreement (NOD) has been filed after
June 20th, 2007.” R. at 255. (The Court will refer to this as the “applicability date.”) In exchange
for representation before VA and, if necessary, this Court, Mrs. Pitts agreed to pay Mr. Viterna
“twenty (20) percent of any past due benefits awarded on the basis of the VA claim,” contingent
upon the claim being resolved “in a favorable manner.” Id. Finally, Mrs. Pitts consented to have
VA pay any contingency fee directly to her attorney.
So, on Mrs. Pitts’s behalf, Mr. Viterna appealed to this Court, negotiated a successful joint
motion to remand, and argued to the Board that it should obtain a medical opinion on the cause of
the veteran’s death.1 Based on the resulting medical opinion, the Board found that Mr. Pitts’s death
was connected to service and granted Mrs. Pitts’s DIC claim in 2014. The resulting past-due
benefits award was almost $172,000, and VA withheld $34,373.57 in anticipation of paying Mr.
Viterna a 20% contingency fee. But in September 2014, the regional office declined to issue
payment to Mr. Viterna because the fee agreement he submitted indicated that it applied only to
claims in which an NOD was filed after June 20, 2007, and the NOD in Mrs. Pitts’s case was filed
on October 17, 2005. R. at 133. Around the same time as this decision, Mrs. Pitts wrote to VA and
asked it to withdraw recognition of Mr. Viterna as her representative, complaining that she was
dissatisfied with his services. R. at 142.
The following month, Mrs. Pitts wrote to VA a second time to object formally to Mr.
Viterna receiving fees in connection with her DIC claim. R. at 124. She also advised that he had
asked her to execute an amended fee agreement and that she had refused. Per Mr. Viterna’s letter
to her, “the only change on the amended agreement [was] the removal of the words ‘after June 20th,
2007,’ because no date need be indicated.” R. at 119. In December 2014, VA released the $34,000-
plus to Mrs. Pitts. Mr. Viterna appealed the fee denial to the Board. Mrs. Pitts passed away in
November 2017 while the administrative appeal was pending. R. at 13.
1 In compensation for his services before this Court, Mr. Viterna sought and was granted in Pitts v. Shinseki,
docket number 12-0837, an award of attorney fees and expenses under the Equal Access to Justice Act in the amount
of $4,564.98. See Application for Award of Reasonable Attorney’s Fees and Other Expenses Pursuant to U.S.C.
§2412(d) (Feb. 22, 2013); Pitts v. Shinseki, U.S. Vet. App. No. 12-0837 (Mar. 5, 2013) (unpublished order).
3
In the decision under review, the Board determined that Mr. Viterna was not entitled to a
fee. As a preliminary matter, the Board found that the fee agreement executed by the parties was
valid. But like the regional office, the Board concluded that the explicit terms of the fee agreement
limited its applicability to claims where an NOD was filed after June 20, 2007, and that the NOD
in Mrs. Pitts’s DIC claim was submitted some 20 months before that date.
On appeal, Mr. Viterna does not challenge the Board’s conclusion that the fee agreement,
as drafted, rendered itself inapplicable to the DIC claim. Rather, he argues that the applicability
date in the contract is simply irrelevant. In his view, VA has no legal authority to review the terms
of a direct-pay fee agreement except for those requirements explicitly listed by Congress in
38 U.S.C. § 5904(d). And because the Board was not specifically empowered to consider the
applicability date set forth in the agreement, it committed legal error by declining to pay him his
20% contingency fee. In response, the Secretary contends that “inherent” in 38 U.S.C. § 5904(d)
is the authority “to conduct a cursory review for whether the fee agreement is applicable and at
what percentage the attorney or agent is owed of any past-due benefits.” Secretary’s Br. at 14.
The scope of Board authority in this context is a legal question that the Court considers de
novo. See Cox v. McDonough, _ Vet.App. , , No. 19-3317, 2021 WL 1901178, at *5 (May 12, 2021). As a general matter, a federal agency does not possess broad powers to act however it sees fit. “[N]o case of which we are aware,” the Federal Circuit has observed, “holds that an administrative agency has authority to fill gaps in a statute that exist because of the absence of statutory authority.” FAG Italia S.P.A. v. United States, 291 F.3d 806, 816 (Fed. Cir. 2002). “To the contrary, the Supreme Court has noted that ‘an agency literally has no power to act . . . unless and until Congress confers power upon it.'” Id. (quoting La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986)). So, for example, federal agencies differ from federal courts in that the former have no “inherent equitable powers.” Liu v. SEC, 140 S. Ct. 1936, 1946-47 (2020). But agencies do have a narrower sort of inherent authority: that which is necessarily implied from their express authority. “No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it, is included.” THE FEDERALIST No. 44, at 221 (James Madison) (Terence Ball ed., 2003). This “ancient” presumption is known in modern parlance as the predicate-act canon. ANTONIN SCALIA & BRYAN A. GARNER, READING 4 LAW 192 (2012). “In the context of legislation, it has long been held that whenever a power is given by a statute, everything necessary to making it effectual or requisite to attaining the end is implied.” Id. at 192-93. That venerable principle applies in the administrative law context. So, “courts have uniformly concluded that administrative agencies possess inherent authority to reconsider their decisions, subject to certain limitations, regardless of whether they possess explicit statutory authority to do so,” for such “power to reconsider is inherent in the power to decide.” Tokyo Kikai Seisakusho, Ltd. v. United States, 529 F.3d 1352, 1360 (Fed. Cir. 2008). There are important limitations. The canon requires that the implication be necessary to exercise the specified power. READING LAW at 193. Nor can agencies exercise inherent powers in a manner contrary to statute. Tokyo Kikai Seisakusho, Ltd., 529 F.3d at 1361. Thus, to determine whether the Board had the authority to act as it did, the Court must determine what explicit powers and responsibilities Congress assigned the Secretary in this context and whether the ability to review a fee agreement and consider an applicability date included therein is necessary to effectuate those powers and responsibilities. Section 5904 is titled: “Recognition of agents and attorneys generally.” Congress permitted agents and attorneys to charge VA claimants fees for representation before the Agency and authorized the Secretary to review fee agreements for excessiveness or unreasonableness. See 38 U.S.C. § 5904(c). Congress also allowed, as part of its codification of when and how representatives may charge fees, the direct payment by VA of contingent fees out of past-due benefits: when a claimant and an attorney “have entered into a [qualifying] fee agreement . . . , the total fee payable . . . may not exceed 20 percent of the total amount of any past-due benefits awarded on the basis of the claim.” 38 U.S.C. § 5904(d)(1). “A qualifying fee agreement must provide that the attorney’s fee ‘(i) is to be paid to the [attorney] . . . by the Secretary directly from any past-due benefits awarded on the basis of the claim; and (ii) is contingent on whether or not the matter is resolved in a manner favorable to the claimant.'” Cox, 2021 WL 1901178, at *6 (quoting 38 U.S.C. § 5904(d)(2)(A)). In 2006, Congress amended section 5904 “to allow attorneys to charge fees for services rendered prior to a final Board decision, but after an NOD was filed.” Cameron v. McDonough, _ F.3d , , No. 2020-1839, 2021 WL 2345650, at *1 (Fed. Cir. June 9, 2021). Congress further
specified that the amendment “shall take effect on the date that is 180 days after the date of the
5
enactment of this Act . . . and shall apply with respect to services of agents and attorneys that are
provided with respect to cases in which notices of disagreement are filed on or after that date”—
that date being June 20, 2007. Id.
“Congress expressly delegated responsibility to the Secretary to regulate how much an
attorney can charge for representation in particular cases.” Cox, 2021 WL 1901178, at *16-17. He
“may prescribe in regulations reasonable restrictions on the amount of fees that an . . . attorney
may charge a claimant for services rendered in the preparation, presentation, and prosecution of a
claim before the Department.” 38 U.S.C. § 5904(a)(5). And although Congress specified that “[a]
fee that does not exceed 20 percent of the past due amount of benefits awarded on a claim shall be
presumed to be reasonable,” id., “[t]he Secretary may, upon [his] own motion or at the request
of the claimant, review a fee agreement . . . and may order a reduction in the fee called for in the
agreement if the Secretary finds that the fee is excessive or unreasonable,” 38 U.S.C.
§ 5904(c)(3)(A).
To discharge the responsibility delegated by Congress, the Secretary promulgated
regulations. VA announced a non-exhaustive list of nine factors to help determine whether fees
are reasonable. 2 38 C.F.R. § 14.636(e) (2021). The Agency requires that, to be valid, a fee
agreement include several items, such as the name of the VA claimant, the applicable VA file
number, and “[t]he specific terms under which the amount to be paid for the services of the attorney
or agent will be determined.” 38 C.F.R. § 14.636(g)(1)(v). And to facilitate the phased
implementation of Congress’s 2006 amendment, the Secretary clarified the “conditions” under
which a fee could be charged in a case where an NOD was filed on or after June 20, 2007. 38 C.F.R.
§ 14.636(c)(2)-(3).
Based on this statutory and regulatory framework, the Secretary contends that the Board
necessarily has the authority “to conduct a cursory review for whether the fee agreement is
applicable and at what percentage the attorney or agent is owed” any fees. Secretary’s Br. at 14.
The Court agrees. Before VA can determine whether an agreement is valid or whether an attorney
is eligible for fees or whether the fees sought are reasonable, the Agency must ascertain whether
the agreement even applies to the specific claim to which it is purported to apply. Indeed, in certain
circumstances, Congress’s 2006 amendment explicitly requires VA to consider the date an NOD
2 The Board has “original jurisdiction to review direct-payment contingency-fee agreements for
reasonableness.” Cox, 2021 WL 1901178, at *9.
6
is filed before VA can decide whether a fee is chargeable, making the applicability review a
requisite part of the Board’s responsibilities. See Cameron, 2021 WL 2345650, at *3 (noting that,
in promulgating the relevant portions of § 14.636, “VA has done no more than give effect to that
legislative choice”).
In short, the Board has the authority to review a fee agreement for the purposes of
determining whether it applies to the claim for which it is being proffered because that is a
predicate act necessarily implied by the Board’s explicit statutory responsibilities. To assess the
agreement’s validity, the Board was bound by regulation to consider “[t]he specific terms under
which the amount to be paid for the services of the attorney or agent will be determined.” 38 C.F.R.
§ 14.636(g)(1)(v). Here, the fee agreement contained a key term regarding its applicability. Signed
by both Mr. Viterna and Mrs. Pitts, it specified that it “is only effective as to those claims for which
a notice of disagreement (NOD) has been filed after June 20th, 2007.” R. at 255 (emphasis added).
This applicability date clearly excluded Mrs. Pitts’s DIC claim, since the NOD in that case was
filed on October 17, 2005. R. at 944. The Board did no more than effectuate the plain terms of the
fee agreement. Affirmance is therefore appropriate.
Mr. Viterna’s arguments to the contrary are unpersuasive. He insists that the Board acted
in an ultra vires manner because Congress did not specifically set forth in statute all the details of
what the Board is and is not permitted to do in the fee agreement context. Yet his reply brief doesn’t
even acknowledge the predicate-act canon invoked by the Secretary. And his broader legal
arguments against the Board’s action here misread the law in this area.
For example, he argues that, although Congress generally authorized the Secretary to
review fee agreements for reasonableness under section 5904(c), it did not authorize him to review
the subset of fee agreements covered by section 5904(d: direct-pay agreements. Appellant’s Br. at
8-9. Yet while he cites only Congress’s general delegation of authority to the Secretary in section
501(a), Mr. Viterna ignores section 5904(a)(5), which specifically empowers the Secretary to
“prescribe in regulations reasonable restrictions on the amount of fees that an agent or attorney
may charge a claimant for services rendered in the preparation, presentation, and prosecution of a
claim before the Department.” Moreover, subsection (c) applies generally to all fee agreements
and allows the Secretary to reduce fees that are excessive or unreasonable. 38 U.S.C.
§ 5904(c)(3)(A). Congress didn’t exclude direct-pay agreements from this oversight. These are one
specific type of fee agreement, and although there are additional requirements imposed under
7
subsection (d), they are not immune from Board review. Nor does the appellant cite any case
supporting his reading of section 5904. Cf. Mason v. Shinseki, 743 F.3d 1370, 1371 (Fed. Cir.
2014) (VA “may, under certain circumstances, directly pay reasonable legal fees to the attorney
from any past-due benefits awarded to the veteran.” (emphasis added)).
Mr. Viterna also suggests that the Board exceeded its authority in deciding the question
because “no decision is called for or required under [section] 5904(d).” Appellant’s Br. at 9. But
that is incorrect. The Federal Circuit, agreeing with this Court, has held that a claim of “entitlement
to [a] fee under section 5904(d) . . . requires the Secretary to make a decision ‘under a law that
affects the provision of benefits by the Secretary to veterans’ . . . and that a claimant is then entitled
to review by the Board.” Cox v. West, 149 F.3d 1360, 1365 (Fed. Cir. 1998) (quoting 38 U.S.C.
§ 511(a)); see also Hanlin v. United States, 214 F.3d 1319, 1322 (Fed. Cir. 2000) (confirming “that
38 U.S.C. § 5904(d) is a law that affects veterans’ benefits and accordingly, under 38 U.S.C.
§ 511(a), Mr. Cox was entitled to a decision by the Secretary and review by the Board of Veterans’
Appeals once he filed a notice of disagreement . . . with the decision of the regional office”). And
under section 511(a), the Board—on the Secretary’s behalf—must “decide all questions of law and
fact necessary to a decision . . . under a law that affects the provision of benefits by the Secretary.”
(emphasis added). See also 38 U.S.C. § 7104(a).
The appellant’s legal arguments regarding the Board’s authority in this area are entirely
statutory and regulatory in nature. He makes no constitutional argument. Nor does he attempt to
base any request for relief on equitable principles. By these observations, the Court is not
expressing an opinion on whether such arguments exist or, if they do exist, what their merits might
be. Rather, the Court wishes to make clear that any arguments other than those expressly raised by
the opening brief are deemed abandoned on appeal, thereby forfeiting the appellant’s opportunity
to raise them. See, e.g., Carbino v. West, 168 F.3d 32, 34 (Fed. Cir. 1999) (“[C]ourts have
consistently concluded that the failure of an appellant to include an issue or argument in the
opening brief will be deemed a waiver of the issue or argument.”).
This being so, the Court cannot understand the relevance of some of the factual
representations Mr. Viterna makes toward the end of his opening brief. He “acknowledge[s] an
inadvertent and unintentional drafting error in his fee agreement with Mrs. Pitts,” but he says both
representative and client “operated under the terms and with the expectation that the correct
triggering date was in the fee agreement.” Appellant’s Br. at 15. Preliminarily, it should be noted
8
that he cites no basis in the record to impute such understanding to the now-deceased Mrs. Pitts.
In any event, the appellant hasn’t explained how his assertion, even if true, is germane to the
arguments he presents regarding the Board’s statutory and regulatory authority in this area. Equally
curious is the appellant’s next contention—that Mrs. Pitts “neither objected to the agreement nor
asked the Secretary to determine her fee agreement with Mr. Viterna to be invalid.” Id. Not only
is it flatly inconsistent with the record,3 but it’s unclear how this contention affects the inquiry into
whether the Board properly discharged its responsibility and authority to decide all legal and
questions with respect to the Mr. Viterna’s claim for fees under his agreement with Mrs. Pitts.
The Court is sympathetic to Mr. Viterna’s predicament. He calls the outcome of the Board’s
decision “absurd.” Appellant’s Br. at 15. As noted above, he has not developed any equitable
argument on appeal. But it’s worth mentioning that the equities of the situation are, at the very
least, complicated. The fact is that the appellant is a licensed attorney who drafted a fee agreement,
which (for whatever reason) explicitly made itself inapplicable to the case at hand. And he is now
arguing that the Board, despite its congressionally mandated responsibility to protect the legal
interests of laypersons like the widowed (and now-deceased) Mrs. Pitts, was powerless to hold
him to the applicability date he inserted into the agreement. Whatever the equitable balance in
these circumstances might be, the law authorized the Board to undertake the sort of fee agreement
review it did here. Once the explicit terms of the agreement were considered, the Court cannot
discern any basis on which the Board would be allowed to ignore them.
The Court has fully considered Mr. Viterna’s remaining arguments but finds them to be
without merit. The March 7, 2019, Board decision is AFFIRMED.
DATED: July 14, 2021
Copies to:
Kenneth M. Carpenter, Esq.
VA General Counsel (027)
3 Mrs. Pitts wrote VA in 2014 that she did not believe Mr. Viterna’s efforts in her case justified the fee of
more than $34,000 VA had set aside for him. R. at 124. She also stated that she was eagerly awaiting a decision by
the Agency on the question of the appellant’s entitlement to those fees. Id. As for Mr. Viterna’s notation that Mrs. Pitts
did not “participate” in administrative hearings before the Board, the Court observes that she passed away in 2017,
two years before the Board decision issued.

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