[00:00:00] Speaker 00:
Our next case for argument is 2020-1839 Cameron v. McDonough.

[00:00:06] Speaker 00:
Mr. Carpenter, please proceed.

[00:00:09] Speaker 03:
Thank you very much, Your Honor.

[00:00:10] Speaker 03:
May it please the Court?

[00:00:11] Speaker 03:
Kenneth Carpenter appearing on behalf of Mr. John Cameron.

[00:00:15] Speaker 03:
In this case, Your Honors, there were two fee decisions made by the VA that were appealed to the Board of Veterans' Appeals and then to the Court below the Veterans Court.

[00:00:27] Speaker 03:
First fee decision, the fee was granted and in the second fee decision, the fee was denied.

[00:00:34] Speaker 03:
These were for services performed on the same case involving the same award of past due benefits.

[00:00:41] Speaker 03:
The question presented in this case is the validity of the VA's reliance upon their regulation at 38 CFR 14.636C2, which permits the VA to, as they did in this case,

[00:00:57] Speaker 03:
essentially bifurcate a single adjudication based upon two different versions of the law.

[00:01:06] Speaker 03:
The Congress in December of 2006 amended the provisions of 38 USC 5904 C1 to repeal and replace the previous provisions

[00:01:24] Speaker 03:
which provided specific and very restrictive circumstances in which an attorney would be lawfully able to charge and receive a fee for services performed for a claimant in proceeding before the VA.

[00:01:39] Speaker 03:
The pre-amendment version of the statute allowed fees to be charged only after a first final decision of the board and required

[00:01:50] Speaker 03:
that the attorney had to have been retained within one year of the board decision.

[00:01:56] Speaker 03:
When Congress amended 5904C2, it removed those two requirements completely and replaced them with a substantively expanded opportunity for fees to be lawfully charged and received

[00:02:14] Speaker 03:
for services performed on behalf of a claimant in proceedings before the VA by identifying the event as being an NOD filed with respect to the case.

[00:02:33] Speaker 03:
Mr. Cameron's appeal to the Veterans Court challenged the validity of the Secretary's regulation, which retained the requirements of the prior version

[00:02:44] Speaker 03:
of 5904C1 and enforced those provisions in their second fee decision to deny him the right to the additional fees to which he was entitled to under the statute.

[00:02:58] Speaker 03:
In so doing, the Secretary retained in regulation the repealed version of the statute and its requirements, which then results in two sets of circumstances.

[00:03:14] Speaker 03:
not the single circumstance that existed both prior to the amendment and after the amendment.

[00:03:21] Speaker 01:
Mr. Carpenter, this is Judge Toronto.

[00:03:24] Speaker 01:
Is your argument completely dependent on our

[00:03:32] Speaker 01:
giving less regard, I'm not quite sure what the right term is, to the effective date language that was in the enacted and signed bill and appears in the statutes at large, or do you have an argument that, independent of that, so that on the assumption that that effective date language, you know, appeared with, you know, equal status placement in the U.S.

[00:03:57] Speaker 01:
Code, you would still say that fees were improperly denied here?

[00:04:08] Speaker 03:
My hesitation is yes, I believe that that would be our position that the fees were improperly denied in any event.

[00:04:21] Speaker 03:
However, the challenge below at the Veterans Court was specifically to the validity of the regulation and that was the holding of the Veterans Court that the regulation was in fact valid based upon that reference in the statute.

[00:04:37] Speaker 03:
I could certainly see a path with which this court could decide favorably to Mr. Cameron that the fees were not properly denied, but that is not the legal issue that was presented to the court below.

[00:05:03] Speaker 01:
And then on this effective date provision,

[00:05:06] Speaker 01:
My understanding is that the Supreme Court has said a number of times that, in fact, the statutes at large are the law unless and until Congress actually enacts the U.S.

[00:05:28] Speaker 01:
Code version.

[00:05:30] Speaker 01:
First of all, Congress has or has not enacted the U.S.

[00:05:33] Speaker 01:
Code version.

[00:05:37] Speaker 03:
Is that?

[00:05:38] Speaker 03:
I'm not sure.

[00:05:40] Speaker 03:
To be candid, I understand the question.

[00:05:43] Speaker 03:
I'm sorry.

[00:05:48] Speaker 01:
Throughout the U.S.

[00:05:49] Speaker 01:
Code, there are various

[00:05:50] Speaker 01:
portions of the U.S.

[00:05:51] Speaker 01:
Code, large parts of Title 42, others, that Congress has never voted on.

[00:05:57] Speaker 01:
For large parts of Title 19, which we deal with all the time in the Trade Act, the actual law is not in the U.S.

[00:06:04] Speaker 01:
Code unless it actually agrees with what Congress has enacted.

[00:06:09] Speaker 01:
Do you know whether that's true of the codification that Title 38 is or

[00:06:20] Speaker 03:
No, Your Honor, I have to confess I do not.

[00:06:23] Speaker 03:
I simply do not know.

[00:06:25] Speaker 03:
But the distinction that we're attempting to draw is that the note provides a statement that is inconsistent with the language that is in the United States Code and the language that was in

[00:06:46] Speaker 03:
the bill itself as to the substantive changes intended to be made.

[00:06:52] Speaker 03:
And if one accepts that the note reflects some intent of Congress simply because it was written in the bill, it would seem to me flies in the face of interpreting statutes as written and as presented to the public.

[00:07:12] Speaker 03:
There is no reference to

[00:07:15] Speaker 03:
any limitation such as the limitation of to be retained within one year that was in the plain language of the prior version of the statute.

[00:07:28] Speaker 03:
And in order for the note to have the impact or legal effect that the Veterans Court gave it, it is our position, it has to be consistent with the intent of Congress.

[00:07:46] Speaker 03:
because that language adds a limitation to the statute that we do not believe was the intent of Congress or was even voted upon by Congress.

[00:08:00] Speaker 03:
Yes, it's in that note.

[00:08:02] Speaker 02:
Mr. Carpenter, this is Judge Hughes.

[00:08:04] Speaker 02:
I'm entirely baffled by what you are doing today.

[00:08:08] Speaker 02:
You talk about this note as if it weren't part of a statute voted and passed upon by Congress.

[00:08:16] Speaker 02:
But isn't it specifically included as part H of the public law that was passed by Congress?

[00:08:26] Speaker 03:
Yes, your honor.

[00:08:26] Speaker 03:
That verbiage is there.

[00:08:28] Speaker 03:
The question.

[00:08:29] Speaker 02:
So Congress voted and agreed upon and presumably the president signed into law public law 106 461, which includes

[00:08:40] Speaker 02:
as subsection or section H. I'm not getting all the subsections down because it's a larger law, but you know what I'm talking about.

[00:08:49] Speaker 02:
I do.

[00:08:50] Speaker 02:
I do.

[00:08:50] Speaker 02:
That was passed, agreed upon, and signed by the president.

[00:08:56] Speaker 02:
Why isn't that a law passed by Congress?

[00:09:01] Speaker 03:
Because, Your Honor, it is a parenthetical note.

[00:09:06] Speaker 03:
And it is.

[00:09:07] Speaker 03:
No, no, no.

[00:09:08] Speaker 02:
I'm not talking.

[00:09:09] Speaker 02:
Look, I think you're getting either you're not understanding what I'm saying or you're not looking at the right thing.

[00:09:15] Speaker 02:
I'm not talking about what's looking at.

[00:09:18] Speaker 02:
We look at when we pull up the United States code and the codifications, I'm looking at the public law and I'm looking at addendum three to the government's red brief.

[00:09:29] Speaker 02:
And it is not a parenthetical.

[00:09:31] Speaker 02:
It is just another subsection of the public law passed.

[00:09:35] Speaker 02:
I mean, I don't understand how you can say that that subsection has any less effect than all the other subsections that made the changes to the law of issue.

[00:09:46] Speaker 03:
Well, Your Honor, whoever drafted the language that is contained in the United States code disregarded that language because that language... No, they didn't.

[00:09:58] Speaker 02:
This happens in every single statute with effective dates.

[00:10:01] Speaker 02:
It almost always ends up

[00:10:03] Speaker 02:
once it's codified as a note.

[00:10:06] Speaker 02:
But the Supreme Court has repeatedly held that the public laws are also the laws.

[00:10:11] Speaker 02:
So, you know, it would have been air for them not to include subsection H. I don't see how you get around the fact that Congress passed... There is no air.

[00:10:23] Speaker 02:
The Congress passed an effective date for this statute, and it has to have the force and effective law.

[00:10:30] Speaker 02:
I don't care where it's codified in the U.S.

[00:10:32] Speaker 02:
Code.

[00:10:33] Speaker 02:
We're looking at the public law that was passed.

[00:10:35] Speaker 02:
We can't ignore that Congress made an effective date.

[00:10:39] Speaker 02:
And particularly, you know, even though it's not relevant necessarily because, you know, it's pretty plain, the legislative history made clear that Congress thought about this and thought about whether they should make this immediately effective or have a phased-in approach.

[00:10:53] Speaker 02:
So, I mean, does your argument ultimately come down to saying we just ignore this effective date provision?

[00:11:01] Speaker 03:
No, Your Honor.

[00:11:02] Speaker 03:
It's not the effective date provision that we have problems with.

[00:11:08] Speaker 03:
The problem we have is the additional language beyond the effective date.

[00:11:14] Speaker 03:
It will be effective 180 days.

[00:11:17] Speaker 03:
There isn't any dispute about that.

[00:11:19] Speaker 03:
It's the second phrase.

[00:11:21] Speaker 02:
Yeah, sure, but you're not reading the rest of it, which it says it will be effective 180 days after enactment and shall apply

[00:11:29] Speaker 02:
with respect to service that are provided.

[00:11:32] Speaker 02:
And that has the notice of disagreement.

[00:11:36] Speaker 02:
It's not just an effective date.

[00:11:37] Speaker 02:
It specifies which services this applies to, too.

[00:11:41] Speaker 02:
Are you trying to say that only part of that public law is applicable?

[00:11:46] Speaker 03:
What I'm trying to say, Your Honor, is that in interpreting the statute, including the public law, the question has to be raised as to whether or not

[00:11:58] Speaker 02:
that language is the intent of Congress, and whether or not that language, as written... Okay, Mr. Carper, I know you're into your subtle time, but let me ask you, what do you think means, and it says in that subsection H, that it shall apply with respect to services of the agents and attorneys that are provided with respect to cases in which notices of disagreements are filed one or after that date?

[00:12:25] Speaker 02:
which refers back to the 180 days effective date.

[00:12:29] Speaker 02:
What does that mean?

[00:12:33] Speaker 03:
It means that an attorney cannot charge for services provided before that date.

[00:12:46] Speaker 03:
But as this case demonstrates, we have a circumstance in which the fee was allowed

[00:12:56] Speaker 03:
for the services that were performed after the date of the NOD after 2007.

[00:13:06] Speaker 03:
Here, they're creating an arbitrary delineation that those services can be limited to services prior to that date in the same representation.

[00:13:20] Speaker 03:
This contract was not entered into prior to 2007.

[00:13:25] Speaker 02:
they are creating an arbitrary bifurcation.

[00:13:29] Speaker 02:
Do you mean Congress?

[00:13:30] Speaker 02:
Because Congress is the one that created that bifurcation.

[00:13:36] Speaker 03:
And I believe that this court has an obligation to determine whether or not that is or is not an absurd result in light of what was amended.

[00:13:46] Speaker 02:
Mr. Carpenter, you have done a great service for a long time for veterans.

[00:13:53] Speaker 02:
And you get a lot of leeway on your creative arguments, but you're pushing it in this case.

[00:13:59] Speaker 02:
I don't see how you can read that plain language in subsection H any other way than it doesn't apply to NODs before that date, which is this case.

[00:14:17] Speaker 00:
Carpenter, would you like to save the rest of your time for rebuttal?

[00:14:19] Speaker 03:
I would, ma'am.

[00:14:20] Speaker 03:
Thank you.

[00:14:21] Speaker 00:
I think that's a good plan.

[00:14:22] Speaker 00:
Ms.

[00:14:24] Speaker 00:
Hantum, if I'm saying that right, please proceed.

[00:14:27] Speaker 04:
Thank you, Your Honor.

[00:14:28] Speaker 04:
May it please the Court?

[00:14:29] Speaker 04:
The Veterans Court correctly concluded that 38 CFR section 14636 imposes the same restrictions on attorney's fees that Congress required in the Veterans Benefits, Healthcare, and Information Technology Act of 2006.

[00:14:43] Speaker 04:
Since the 1860s, Congress has placed limits on fees that attorneys could charge veterans

[00:14:49] Speaker 04:
This was intended to protect veterans from lawyers who might overcharge for services and to allow veterans to engage in an informal process with VA and receive benefit awards without having to divide them with attorneys.

[00:15:02] Speaker 04:
After the 2006 Act, attorneys could charge fees beginning at an earlier date in the review of a VA regional office decision, that is after filing the filing of a notice of disagreement or nod that Mr. Cameron wants more than Congress allowed.

[00:15:17] Speaker 04:
Mr. Cameron ignores the limits set by the plain language about which services this amendment applied to and thus ignores Congress's intent to slowly introduce the new procedure.

[00:15:31] Speaker 04:
The Veterans Court's interpretation of Section 5904's note along with 5904C1 is plainly correct.

[00:15:41] Speaker 04:
As the Veterans Court concluded, Mr. Cameron can only manufacture a conflict between these relevant provisions by ignoring the plainest of language.

[00:15:50] Speaker 01:
Ms.

[00:15:50] Speaker 01:
Tantum, this is Jess Turando.

[00:15:51] Speaker 01:
Can you just explain a factual, I think it's a factual matter that I should understand.

[00:16:01] Speaker 01:
So some fees were awarded here and some fees were denied.

[00:16:04] Speaker 01:
Can you just explain what happened?

[00:16:07] Speaker 04:
Sure, Your Honor.

[00:16:10] Speaker 04:
The notice of disagreement at issue here was filed in 2005 and it related to a claim for bilateral lower extremity diabetic neuropathy.

[00:16:23] Speaker 04:
There was subsequently a request to VA related by Mr., on behalf of Mr. Bolden, for additional conditions, that's PTSD,

[00:16:33] Speaker 04:
bipolar disorder, heart condition, and worsened diabetic neuropathy.

[00:16:39] Speaker 04:
That was in October 2009.

[00:16:41] Speaker 04:
Then when there was a decision on that second request in September 2010, and a nod following that, related to that claim in 2010,

[00:16:56] Speaker 04:
the board ended up hearing.

[00:16:59] Speaker 01:
So there were essentially two separate claims, one of them had a post-June 2007 notice of disagreement, and that's the difference?

[00:17:10] Speaker 04:
That's correct, Your Honor.

[00:17:11] Speaker 01:
Okay, and can I just ask you since, how often does the issue

[00:17:18] Speaker 01:
that is before us now still come up.

[00:17:22] Speaker 01:
I know things take rather a long time in the veterans benefit system, but we're talking about a change that took effect in 2007.

[00:17:30] Speaker 01:
Is this a very, is this a matter we should expect or the Veterans Court should expect to see again or is this, you know, a essentially extinct issue?

[00:17:48] Speaker 04:
Your Honor, I believe that given the amount of time that's passed since June 20th, 2007, that this is not an issue that should come up.

[00:17:57] Speaker 04:
And I'm not aware of any previous instance of this issue being raised.

[00:18:05] Speaker 04:
I believe that the regulation 38 CFR, you know,

[00:18:12] Speaker 04:
Section 636C2 lays out what the process is when a claim is related to pre-June 2007 fees, and VA has explained that in the regulation.

[00:18:35] Speaker 04:
Since 2017, there was an additional change to the

[00:18:40] Speaker 04:
start date for attorney's fees, it's been moved back to the date of a VA regional office decision.

[00:18:49] Speaker 04:
So it's now earlier than the notice of disagreement.

[00:18:53] Speaker 04:
So there's been a subsequent change.

[00:18:55] Speaker 04:
I believe that the, Judge Hughes correctly explained everything that we planned to state about the placement in the note.

[00:19:09] Speaker 04:
of the language at issue here.

[00:19:15] Speaker 04:
It's obviously in Section 101H of the statutes at large, which means that the placement in the note is meaningless in the consideration of what the legal evidence of the laws is.

[00:19:35] Speaker 04:
Cameron provides no explanation of why there's a distinction between substantive and purportedly ministerial instructions and why there's a distinction when it's found in the note.

[00:19:49] Speaker 04:
Obviously, Mr. Cameron believes that one portion of the note's language is meaningful.

[00:19:55] Speaker 04:
The portion that says when the amendments are effective, it's only the second clause in that sentence that has no meaning and there's

[00:20:04] Speaker 04:
No reason for the court to pursue an interpretation that would leave this clause inoperative and void.

[00:20:14] Speaker 04:
Mr. Cameron is basically asking that it be excised when in fact the court should read Section 5904C1 and D actually need not be considered for the reasons we've described.

[00:20:30] Speaker 04:
Ms.

[00:20:32] Speaker 01:
Tantum, this is Jess Tranda.

[00:20:33] Speaker 01:
Can I just ask you the same question I asked Mr. Carpenter?

[00:20:37] Speaker 01:
Has Congress voted on the codified version of this or other parts of Title 38?

[00:20:46] Speaker 04:
I'm not aware of that, but I understood that enactment

[00:20:50] Speaker 04:
um, occurs when a piece of legislation has been authorized by Congress?

[00:20:55] Speaker 01:
Right.

[00:20:55] Speaker 01:
No, no, no.

[00:20:56] Speaker 01:
I don't, I really, I don't mean to suggest that this is in any way important.

[00:21:00] Speaker 01:
I'm just curious about, that there are statutes in which Congress, having enacted a whole lot of public laws, then is presented with a codification and Congress votes on the codification, like the revised statutes of 1873, and that replaces all the previous public laws.

[00:21:17] Speaker 01:
I'm just trying to understand if this is one of those.

[00:21:19] Speaker 04:
I'm not aware of that, Your Honor.

[00:21:25] Speaker 04:
Thank you.

[00:21:28] Speaker 04:
The lack of an effective date, I wanted to point this out, in the Appeals Modernization and Improvement Act of 2017, which was raised in Mr. Cameron's reply brief, was not raised in his opening brief, that 2017 Act

[00:21:46] Speaker 04:
does not provide evidence of Congress's intent that can be extrapolated back to the 2006 act that preceded it.

[00:21:54] Speaker 04:
Subsequent legislation can only have possible relevance to the interpretation of an earlier act.

[00:21:59] Speaker 04:
When the later act declares the intent of that earlier law, the 2017 act does not declare what the intent of the 2006 act was.

[00:22:14] Speaker 04:
We'll just note that 5904D2A2, which Mr. Cameron relies on, is not at odds with 5904C1.

[00:22:23] Speaker 04:
Again, as Mr. Cameron's counsel explained, since the argument hinges on the conclusion that the application provision of the effective date provision is inoperative, there's no need for the court to reach the 5904D2A2 argument.

[00:22:44] Speaker 04:
In any event, we did address Mr. Cameron's argument.

[00:22:49] Speaker 04:
We noted that it was both waived and we also, contrary to the statement in Mr. Cameron's brief, we replied briefly, we did state that on the merits that the, that provision must be read together with the effective date provision and 5904C1 and that it only provides instructions

[00:23:13] Speaker 04:
as to when a fee agreement, the instructions for what fee agreements have to provide in order to allow for fees from past due benefits.

[00:23:24] Speaker 04:
And read together harmoniously 5904C1 and the 5904B provisions would only mean that those particular fee agreements relate to fees charged after.

[00:23:42] Speaker 04:
June 20th, starting or after June 20th, 2007.

[00:23:49] Speaker 04:
And for these reasons, we request that the Court affirm the Veterans Court's provision.

[00:23:56] Speaker 04:
Thank you.

[00:23:57] Speaker 00:
Thank you, Mr. Carpenter.

[00:23:59] Speaker 00:
You have some rebuttal time.

[00:24:00] Speaker 03:
Thank you very much, Your Honor.

[00:24:02] Speaker 03:
To please the Court, I'd like to try to at least clarify or draw a distinction between the effective date provision

[00:24:12] Speaker 03:
and the challenge that was presented to the Veterans Court.

[00:24:16] Speaker 03:
The challenge that was presented to the Veterans Court was the validity of the regulatory provision that allowed the VA to rely upon the prior version of the law.

[00:24:32] Speaker 03:
As I understand the discussion with Judge Hughes, the

[00:24:42] Speaker 03:
issue of going forward from the new statute is controlled by the language in the note.

[00:24:56] Speaker 03:
The question, however, is whether or not the VA's regulation that includes a basis

[00:25:04] Speaker 03:
for the denial of the fee, which we believe was the basis for the denial of the fee, was that there was no first final board decision.

[00:25:15] Speaker 03:
I'm sorry.

[00:25:19] Speaker 03:
I didn't realize it.

[00:25:20] Speaker 03:
I thought I had five minutes.

[00:25:21] Speaker 03:
I apologize.

[00:25:25] Speaker 00:
Go ahead.

[00:25:27] Speaker 00:
Please finish your thought.

[00:25:28] Speaker 00:
Go ahead.

[00:25:30] Speaker 03:
Well, the thought is that

[00:25:34] Speaker 03:
the provisions of the prior version of the statute should not be in VA's regulation.

[00:25:42] Speaker 03:
And if VA's regulation is valid, it is only valid to the extent that it prohibits fees charged for services that were provided before or on or after the date of, excuse me, it authorizes services only on or after

[00:26:03] Speaker 03:
the date that they were provided.

[00:26:07] Speaker 00:
Okay.

[00:26:08] Speaker 00:
Thank you, Mr. Carpenter.

[00:26:09] Speaker 00:
I thank both counsel.

[00:26:10] Speaker 00:
The case is taken under submission.

[00:26:11] Speaker 00:
Thank you.

[00:26:15] Speaker 04:
The honorable court is adjourned from day two.