          UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


NOS. 98-2219 AND 99-1164

KEITH D. SNYDER,                                              APPELLANT /PETITIONER ,

   V.


ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS,                                APPELLEE/RESPONDENT .

PATRICK D. MCCREARY ,                                         INTERVENOR.

                      Before KRAMER, Chief Judge, and FARLEY,
                  HOLDAWAY, IVERS, STEINBERG, and GREENE, Judges.

                                            ORDER

        On November 14, 2001, the Court granted the Secretary's motion for reconsideration, but
reaffirmed its October 6, 2000, opinion, and issued a new opinion that contained additional analysis.
On December 17, 2001, the Secretary renewed his motion for a full Court decision, which was
contained in the November 13, 2000, motion for reconsideration.

        Motions for a full Court decision are not favored. Ordinarily they will not be granted unless
such action is necessary to secure or maintain uniformity of the Court's decisions or to resolve a
question of exceptional importance. In this appeal, the Secretary has not shown that either basis
exists to warrant a full Court decision.

       Upon consideration of the foregoing, the record on appeal, and the Secretary's motion for a
full Court decision, it is

        ORDERED that the motion for a full Court decision is denied.

DATED:         April 11, 2002                         PER CURIAM.

       STEINBERG, Judge, concurring: The Court has voted unanimously to deny the Secretary's
motion for a full-Court decision in this matter. As the author of the panel opinion in this case,
Snyder v. Principi, 15 Vet.App. 285 (2001) [hereinafter Snyder II], and as a member of the panel that
decided the companion case of Cox v. Principi, 15 Vet.App. 280 (2001) (per curiam order)
[hereinafter Cox IV], I write separately to address the Secretary's flawed arguments, because, in the
event of further appellate review, I believe that the record in this Court should be as complete as
possible.1



         1
           I have not undertaken to address at any length the Secretary's arguments regarding what he perceives to be
unreasonable interference with the Department of Veterans Affairs (VA) adjudication process insofar as the sequence
of adjudication steps to be taken at VA regional offices and the Board of Veterans' Appeals (BVA) regarding review of
fee agreements is concerned. That is because I believe that the panel opinion, Snyder v. Principi, 15 Vet.App. 285, 296-
98 (2001) [hereinafter Snyder II], deals adequately with these contentions.

             Since the Secretary's motion was filed, however, the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) affirmed (as modified) our opinion in Scates v. Gober. Scates v. Principi, ___ F.3d ____, ____, No. 01-7033,
2002 W L 391491, at *8 (M arch 13, 2002). In that opinion, the Federal Circuit stated that "[t]he line between
(1) entitlement to and (2) reasonableness and excessiveness of attorney fees may not be as clear and bright as the
Veterans Court believed" and that "it is unclear that this case involves solely entitlement to, rather than the
reasonableness of, an attorney fee." Id. at ____, 2002 W L 391491, at *5. Nonetheless, the differences between
entitlement and reasonableness seem quite clear on the face of the statute. 38 U.S.C. § 5904(c). Determinations as to
eligibility deal with the presence of the two factors that determine whether or not an attorney can collect any fee for
representation before VA; in order to be eligible to collect any such fee (1) the fee must not pertain "to services provided
before the date on which the Board of Veterans' Appeals first makes a final decision in the case"; and (2) "[s]uch a fee
may be charged, allowed, or paid in the case of services provided after such date only if an agent or attorney is retained
with respect to such case before the end of the one-year period beginning on that date." 38 U.S.C. § 5904(c)(1). The
reasonableness or excessiveness of the fee, on the other hand, deals with the am ount of the fee that the attorney seeks
to collect. See 38 U.S.C. § 5904(c)(2). W hat we held in Snyder II was that "section 5904(c)(2) requires that
determinations of eligibility (which, under Scates [v. Gober, 14 Vet.App. 62, 64 (2000)], must be done by the [VA
regional office (RO)] in the first instance) are a prerequisite for any Board review of the reasonableness of a direct-
payment fee agreement." Snyder II, 15 Vet.App. at 297. We thus recognized the sequentiality of these two distinct steps,
i.e., it is inappropriate for the reasonableness or excessiveness of a fee to be determined under section 5904(c)(2) before
a VARO makes the threshold determination of the representative's eligibility under section 5904(c)(1) to collect any fee.
Thus, despite the Federal Circuit's apparent lack of clarity on this point, entitlement to any fee and the reasonableness
or excessiveness of the fee sought are, indeed, quite separate and distinct issues.

          In any event, as to whether the BVA can exercise original jurisdiction under section 5904(c)(2) where an RO
has not made any determination as to eligibility, in Scates the Federal Circuit stated that (1) there was an independent
basis for its concluding that the RO was "the appropriate agency initially to decide [the] attorney fee claim", Scates v.
Principi, ___ F.3d at ____, 2002 W L 391491, at *6, and (2) that section 7104(a) might provide a basis for the BVA to
exercise original jurisdiction without the need for a case to originate in an RO (the Federal Circuit does not address this
Court's jurisdiction under section 402 of the Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105,
4122 (1988) (found at 38 U.S.C. § 7251 note) [hereinafter VJRA § 402], in terms of there having to be a Notice of
Disagreement filed after November 17, 1988, as to an RO determination, a requirement repealed on December 27, 2001,
as to pending and future claims for VA benefits, Veterans Education and Benefits Expansion Act of 2001, Pub. L. No.
107-103, § 603, 115 Stat. 976, 999). On the first point, the independent basis for affirmance (described by the Federal
Circuit as an "alternative ground" for sustaining the action we had taken in Scates), the Federal Circuit made a judgment
that an RO was the most "appropriate agency initially to decide [the] attorney fee claim", Scates v. Principi, ___ F.3d
at ____, 2002 W L 391491, at *6. On the facts of Snyder II, I would reach the same conclusion, i.e., that the RO is the
most appropriate forum to adjudicate the presence of the two factors, described above, that must be addressed in order
to decide the issue of Mr. Snyder's eligibility to collect any fee. However, because the Federal Circuit merely raised a
question about this Court's reasoning in Scates (and did so, I believe, based on a misunderstanding of the distinction
between entitlement to a fee and the reasonableness or excessiveness of a fee), and did not specifically reject our
conclusion, I believe that our Scates opinion retains its vitality as support for our actions in Snyder II.

                                                             2
                                   I. Secretary's Donovan Argument
        Initially, the Secretary makes a procedural contention. He states that the Court "did not act
on the Secretary's alternative motion for full Court review" (Panel Reconsideration Motion (Mot.)
at 1), and argues that that motion is still pending before the Court because the Court, according to
the Secretary's argument, has not granted the entire relief sought in the Secretary's motion for panel
reconsideration (Mot. at 1-2). In support of this argument, the Secretary cites Donovan v. West,
12 Vet.App. 500, 500 (1999) (en banc order), for the following: "Because the opinion in Donovan
II [(which had granted reconsideration but had held that the Donovan I opinion remained valid and
controlling and would not be withdrawn)] did not grant the entire relief sought in the Secretary's
motion for reconsideration, the alternative motion for a full Court decision was circulated to the full
Court". Although the comparison between Donovan and the instant case might seem apt at first
blush, there is a critical difference in content, in terms of the relief sought, between the motion for
panel reconsideration in Donovan and the one in this case.

         In Donovan, the Secretary moved "for reconsideration of the . . . panel decision to the extent
that the Court held that a veteran may appeal to the Board[,] and then [to] the Court, a VA decision
not to accept a deed in lieu of foreclosure." Ibid. The Secretary then stated that "[s]hould the motion
for reconsideration be denied in whole or in part, the Appellee respectfully moves for a full Court
review of the panel decision". Ibid. In the instant case, the Secretary stated first his alternative
motion for a full-Court decision, and then, very generally, stated that "the panel relied upon decisions
of the Comptroller General which are no longer good law, failed to consider applicable Supreme
Court precedent concerning sovereign immunity, and apparently misapplied the Court's own prior
caselaw." Mot. at 2. Notably lacking in the Secretary's panel-reconsideration motion here is any
direct indication of what action the Secretary was urging the Court to take, outside of a
reconsideration of several arguments he raised. This, in fact, the Court did; our reconsideration
opinion addressed each of the arguments raised by the Secretary. See Snyder II, 15 Vet.App. at 289-
99. Indeed, we revised our analysis to comport with a point raised by the Secretary regarding the
nonbinding nature of decisions of the Comptroller General. See id. at 291-93. In the instant motion,
however, the Secretary is making a logic leap that goes one step beyond the arguments raised either
in his instant motion or in his motion for panel reconsideration. He is assuming that the arguments
he wants the Court to reconsider will, if the Court agrees with the position of the Secretary, be
outcome determinative. However, as the Court's previous opinion in this case demonstrates, see id.
at 291, that is not necessarily so. It is not sufficient for the Secretary merely to state a legal argument
without providing an analysis as to how it changes the outcome of the case. When the Secretary
seeks a change in outcome, he should state this explicitly, and not expect the Court to connect the
dots for him.

       In the motion for panel reconsideration in this case, the Secretary asked the Court to
reconsider several legal arguments. This was the totality of the "relief requested". Although the
Secretary may believe that a change in outcome would have been the natural result of such
"reconsideration", or he may believe that a request for a change in outcome should have been inferred
by the Court, he failed to state such arguments explicitly. It is not this Court's function to rewrite
the Secretary's motion for him. In view of the foregoing, I believe that the panel correctly did not


                                                    3
forward this matter to the full Court for consideration, because, in line with the Secretary's motion,
the panel had granted in full his request that we "reconsider" several points of law. Nonetheless, I
favored treating the Secretary's motion for a full-Court decision as timely filed and proceeding to
consider it en banc.

                          II. Secretary's "Erroneous Payment" Argument
         The Secretary reiterates his argument, made twice before in this case, see Snyder v. Gober,
14 Vet.App. 154, 164-65 (2000)[hereinafter Snyder I]; Snyder II, 15 Vet.App. at 291-95, that the
Department of Veterans Affairs (VA) cannot make any payment from past-due benefits of "attorney
fees" to the attorney in this case, because 100% of such benefits have already been disbursed to the
veteran. See Full-Court Mot. at 5-7. The Secretary makes this argument again, despite the fact that
four judges2 (two-thirds of the Court) have already twice agreed with the holding that "that where
VA makes an erroneous payment to a particular beneficiary, that payment in no way impairs its
authority and obligation to pay from the compensation and pension account the amount that is owed
to the correct beneficiary." Snyder II, 15 Vet.App. at 292; see also Cox IV, 15 Vet.App. at 281-83;
Snyder I, 14 Vet.App. at 164-65; Cox v. Gober, 14 Vet.App. 148, 152-54 (2002). The Secretary
attempts to overcome this holding by describing it as a "legal fiction", Full-Court Mot. at 6, and by
stating that "the Court's assertion that there are an additional twenty percent of past-due benefits that
'remain[] undisturbed in the compensation and pension account' is factually inaccurate", Full-Court
Mot. at 7. In support, the Secretary points not to some overlooked statutory provision or a regulation
adopted after public notice and opportunity for comment, but to "the procedures outlined in the VA
Adjudication and Procedure[] Manual M21-1[ (Manual M21-1)], Part III, Ch. 12". Ibid.

        The Secretary attempts to use these manual provisions to show that VA's normal procedures
belie the analysis made by the Court. He states:

                 Pursuant to Manual M21-1, Part III, Ch. 12.46, [paragraphs] (a) and (c), when
         presented with a potential attorney direct payment situation, VA will determine the
         total past-due benefits due to be awarded, will obtain 100 percent of that amount
         from the Compensation and Pension account, and will immediately release to the
         claimant eighty percent of that award. The withheld twenty percent is processed as
         an "06B fiscal transaction," called a "31J deduction," and "[t]he amount of the 31J
         deduction (twenty percent of the retroactive payment) will be paid to the Agent
         Cashier" who, "[u]pon reciept," deposits the amount into the station's suspense
         account "until BVA determines the amount of the retroactive payment, if any, due the
         attorney." M21-1, Part III, Ch. 12, [paragraph] (c)(2) (emphasis added) . . . .

                 Put simply, the Court's assertion that there are an additional twenty percent
         of past-due benefits that "remain[] undisturbed in the compensation and pension


         2
          Actually, five judges have agreed to this reasoning; Chief Judge Nebeker was part of the panel that decided
Cox v. Gober, 14 Vet.App. 148 (2000) (per curiam) [hereinafter Cox III]; he retired shortly after the issuance of the per
curiam opinion in that case. He was replaced on that panel by Judge Greene, who is also part of the panel in this case.

                                                           4
        account" is factually inaccurate. The Secretary was authorized to withdraw from that
        account only the amount of past-due benefits to which the veteran was entitled, and
        VA can withdraw no more, regardless of whether the attorney is ultimately found,
        pursuant to section 5904, to have been entitled to any attorney fees out of any past-
        due benefits awarded.

Full-Court Mot. at 7-8. This argument is flawed both on its face and in its premise.
        On its face, this argument depends on the same type of logic that characterized the Secretary's
Donovan argument, discussed in part I., supra. Although the Secretary discusses VA procedures for
segregating the withheld 20% of the past-due benefits, he does not point to any authority for the
premature disbursement of that withheld amount. See Mot. at 3-15. The Manual M21-1
provisions that he cites are, in fact, fully in concert with our prior opinions in this case; the withheld
20% of past-due benefits is indeed to be held until "the amount of the retroactive payment, if any,
due the attorney" is determined by the Department. See Mot. at 7-8. In this case, however, that
withheld amount was "erroneously released to the veteran". Snyder II, 15 Vet.App. at 289
(emphasis added). It was this erroneous release of funds that led the Court to note that, "as is
inherent in 38 U.S.C. § 5904(d)(2)(A) . . . and in 38 C.F.R. § 20.609(h) . . . , the Secretary is
obligated to withhold and pay this amount." Snyder II, 15 Vet.App. at 294-95. The Secretary's
Manual M21-1 new arguments are thus unavailing because they do not deal with the crucial fact
under examination, namely, the erroneous release of funds to the veteran without any statement of
legal justification for that action. The Secretary has shown only that VA procedures comport with
the statute, with the regulations, and with Snyder II.

        Even assuming that the Secretary had made a cogent argument as to why the Manual M21-1
provisions he cites would create a result different from that described by the Court, the premise of
this argument would still be flawed. That is because the Secretary is pointing to provisions of an
internal manual to show that he should be allowed to act in contravention of the statute, the
regulations, and this Court's caselaw. Clearly, VA internal procedures cannot trump these higher
authorities. The Secretary's argument in this regard is little different from his argument in the motion
for panel reconsideration, to which the Court responded as follows:

                Therefore, in order to accept the underlying assumption in the Secretary's
        argument, we would have to endorse the view that the Secretary released the veteran's
        withheld funds in a manner other than as directed by the veteran and therefore in
        contravention of the statute and regulation. In other words, to agree with the
        Secretary's argument, the Court would have to accept the position that the Secretary,
        in these situations, acted contrary to the law as to his section 5904(d) obligation,
        whereas under the theory in Snyder I the Court is making no determination or
        assumption about the legality of the payment to the veteran of an amount equal to the
        withheld amount.

Id. at 295. The Secretary's arguments are no more persuasive now, with a citation to the Manual
M21-1 for support, than they were in any of their previous incarnations.

                                                    5
                              III. Secretary's Section 5314 Argument
        The Secretary also argues that VA cannot pay the attorney because 38 U.S.C. § 5314 would
conflict in this context with 38 U.S.C. § 5904(d)(3). In full, the Secretary states as follows:

               The Court states that VA paid only eighty percent of past-due benefits
       (unless, of course, the attorney is later not found to be entitled to any fees, in which
       case VA paid 100 percent of past-due benefits), and may recoup the additional twenty
       percent that the veteran received, pursuant to 38 U.S.C. § 5314. Snyder II,
       [15 Vet.App. at 295]. Section 5314 provides that "the Secretary shall . . . deduct the
       amount of the indebtedness of any person who has been determined to be indebted
       to the United States by virtue of such person's participation in a benefits program
       administered by the Secretary from future payments made to such person under any
       law administered by the Secretary." 38 U.S.C. § 5314(a) (emphasis added). If,
       pursuant to the Court's rationale in Snyder I & II, the VA Regional Office (RO)
       subsequently concludes that the attorney is entitled to all or some of the twenty
       percent of past-due benefits that have been withdrawn from the Compensation and
       Pension account and paid to the veteran, the Secretary will be required to follow the
       direction of section 5314. Yet, 38 U.S.C. § 5904(d)(3) states: "In no event may the
       Secretary withhold for the purpose of . . . payment [of any attorneys' fee] any portion
       of benefits payable for a period after the date of the final decision of the Secretary,
       the Board of Veterans' Appeals, or Court of Appeals for Veterans Claims
       making (or ordering the making of) the award." 38 U.S.C. § 5904(d)(3)
       (emphasis added). Thus, section 5904 appears to preclude VA, in this instance, from
       following section 5314, irrespective of the Court's apparent statements to the
       contrary.

Full-Court Mot. at 8 (emphasis in original). Again, the Secretary's arguments fall far short of the
mark.

       First, the Secretary appears to imply that the Court gave him some directive to ensure
compliance with section 5314. That is not correct; as to section 5314, the Court stated only the
following:

       [U]nder the theory in Snyder I the Court is making no determination or assumption
       about the legality of the payment to the veteran of an amount equal to the withheld
       amount. That is a matter between the Secretary and the veteran. Cf. 38 U.S.C.
       §§ 5302(a) (providing that waiver of collection of overpayment may be granted
       "whenever the Secretary determines that recovery would be against equity and good
       conscience"), 5314 (providing for declaration of overpayment and offset against other
       due benefits).

Snyder II, 15 Vet.App. at 295. In this only passage in the opinion that cites to section 5314, the
Court passed no judgment on whether or how the Secretary should apply section 5314 in this case.


                                                  6
Furthermore, the citation of section 5302(a) shows that the Secretary is not correct in stating that "the
Secretary will be required to follow the direction of section 5314" in the event that he makes any
payment to the attorney; section 5302(a) clearly provides an alternative that would allow the
Secretary to cut this asserted Gordian knot.

        Second, the Secretary's argument here ignores one of the essential precepts of Snyder II: The
fact that the twenty-percent of past-due benefits set aside for potential payment as attorney fees
remains undisturbed, whereas the amount accidentally disbursed to the veteran was not part of the
veteran's past-due benefits. Snyder II, 15 Vet.App. at 291-92, 294-95. The Secretary's argument
here cannot succeed unless he can successfully demonstrate that the Court's holding on this point was
incorrect. As shown above, he has failed to carry that burden. The Secretary posits that he would
be prohibited from following section 5314 (which obligation he again fails to mention could be
obviated by section 5302(a)) because section 5904(d)(3) prohibits him from withholding any portion
of future benefits for the payment of attorney fees. Of course, to the extent that the attorney in this
case is found to be eligible for fees, he is, pursuant to Snyder II, 15 Vet.App. at 294-95, to be paid
this amount directly from the undisturbed amount in the compensation and pension account. The
Secretary would thus transmute into an attorney's fee any amount that VA might attempt to recoup
from the veteran in light of its erroneous disbursement to him. However, any such amount would
be paid by the veteran to the Secretary and would be collected in a VA effort to protect the taxpayers
by recouping an amount erroneously released to the veteran. Even drawing the connection that the
Secretary seems to be advocating – that such amount would replace, in the compensation and
pension account, the amount paid to the attorney – would still fail to transform such amount into a
payment of an attorney's fees; it would be, again, the recoupment by VA of an amount that it had
erroneously dispersed. The Secretary, in essence, is attempting to place two amounts side by side,
note the similarity in amount of funds, and have us declare them to be one and the same. However,
even the fact that an apple and an orange may be the same size and same mass does not mean that
we could accurately call the apple an orange or vice versa.

                        IV. Secretary's "Money-Mandating" Argument
       The Secretary also presents one argument that he has not presented previously in this case.3
He places this argument under a section titled: "The Court's Rationale Violates Sovereign Immunity




         3
              Of course, the Secretary should not be presenting such arguments for the first time in his motion for a full-
Court decision. His presentation of these arguments at this stage is even more problematic because over the years that
this litigation has been before the Court (the companion case of Cox IV began as In the Matter of Fee Agreements of
Smith, Cox, and Wick, 4 Vet.App. 487, in 1993), he has had numerous opportunities to make this argument. The
Secretary should need no reminder of the Court's longstanding policy to discourage piecemeal litigation. See Burton v.
Principi, 15 Vet.App. 276, 277 (2001) (per curiam order) ("[w]e should not encourage the kind of piecemeal litigation
in which the appellant here has engaged"); Black v. West, 11 Vet.App. 15, 16 (1998) (per curiam order) (Steinberg, J.,
dissenting) (raising contention for first time at reconsideration stage is normally an "undesirable practice" that may
"hinder[] the decision-making process" and "raise[] the undesirable specter of piecemeal litigation" (quoting Fugere v.
Derwinski, 1 Vet.App. 103, 105 (1990))). However, as I stated at the outset of this statement, I have addressed this
argument because of the desirability that the record of this Court's consideration be as complete as possible.

                                                            7
Because It Impermissibly Requires That Section 5904(d) Be Considered a Money-Mandating
Statute"; he frames the argument as follows:

       The Court's finding that the Secretary is 'obligated' to withhold and pay the agreed-
       upon fee directly to the attorney and that duty also creates a corresponding 'right' for
       the attorney to collect that fee . . . in addition to being inaccurate as a matter of
       statutory interpretation, violates well-established principles of sovereign immunity.

Full-Court Mot. at 9. It is difficult to trace exactly how the Court's putative implicit finding that
section 5904(d) is a money-mandating statute would violate sovereign immunity. The Secretary
seems to link that contention to his argument by stating the following: (a) Section 5904(d) cannot
be a money-mandating statute because it is permissive rather than mandatory; (b) the money-
mandating authority the Court relies upon therefore comes from 38 C.F.R. § 20.609(h); (c) an
attempt to elevate the regulation to the level of a money-mandating statute is an attempt to elevate
the Secretary's rulemaking authority to the authority of Congress to enact statutes, including money-
mandating statutes, see Full-Court Mot. at 13; and (d) because the regulation cannot be a statute,
there is no waiver of sovereign immunity here (this last step, which actually ties the money-
mandating argument back to the original sovereign immunity argument, is not stated anywhere in
the Secretary's motion; however, without drawing this conclusion, there is simply no way to
synthesize logically the Secretary's contentions on this point). A brief examination of the caselaw
that the Secretary cites in support of this argument reveals its fundamental weakness.

        The Secretary cites Khan v. United States, 201 F.3d 1375, 1378 (Fed. Cir. 2000), for the
proposition that a money-mandating statute is one that "can fairly be interpreted as mandating
compensation by the Federal Government for the damage sustained." It is important to note at the
outset that the cases cited by the Secretary involve attempts to receive damage awards from the
United States, whereas our two pending cases involve attempts to receive amounts due and owing
to individuals that were wrongly paid out by the United States to the incorrect recipients. Indeed,
the definition of "money-mandating statute" that the Secretary points to in Khan supports the notion
that those statutes relate to the payment of damages. The Secretary nowhere explains how a
damages statute is applicable in the instant context. Nonetheless, even assuming, arguendo, that the
concept of a money-mandating statute were appropriate here, the Secretary neglects the rather
important point that the Federal Circuit, in Khan, clearly recognized that the money-mandating
provision does not have to be contained in a statute. The Khan opinion states: "In other words, the
plaintiff' must assert a claim under a separate money-mandating constitutional provision, statute,
or regulation, the violation of which supports a claim for damages against the United States.' James
v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998)." Khan, 201 F.3d at 1378. Thus, even if the
Secretary were correct that section 5904(d) is discretionary (for which he provides no precedential
support, and which proposition, indeed, seems to be without any affirmative support in our




                                                  8
caselaw4), and that the money-mandating authority here arises instead out of 38 C.F.R. § 20.609(h),
no support is presented for the unstated assumption that such money-mandating powers cannot arise
out of a regulation.

         Even assuming, arguendo, that the Secretary could overcome the above-noted flaws in his
argument on this point, he cannot overcome the fact that he appears to have completely
misapprehended the nature of a "money-mandating" provision. First, the Secretary has provided no
evidence whatsoever that the concept of a "money-mandating" statute is applicable or binding under
title 38. None of the cases the Secretary cites pertains to an action under title 385, and his argument
merely assumes such applicability.

         Second, the Secretary seems to suggest that a waiver of sovereign immunity is somehow
related to a money-mandating provision (and therefore such a provision, because of the waiver of
sovereign immunity, must arise from a statute and not a regulation). The U.S. Supreme Court has
stated, in the context of litigation under the Tucker Act6, as follows:

                 For decades, this Court consistently interpreted the Tucker Act as having
         provided the consent of the United States to be sued eo nomine for the classes of
         claims described in the Act. . . . In at least two recent decisions this Court explicitly
         stated that the Tucker Act effects a waiver of sovereign immunity. . . .

                  ....

                It nonetheless remains true that the Tucker Act "'does not create any
         substantive right enforceable against the United States for money damages.'" . . . A
         substantive right must be found in some other source of law, such as "the
         Constitution, or any Act of Congress, or any regulation of an executive
         department." 28 U.S.C. § 1491.



         4
           It should be noted that this Court has specifically refused to rule on whether the statute alone "requires, or
merely give discretion to, the Secretary to carry out the withhold-and-pay provisions of the statute", Cox III, 14 Vet.App.
at 152.

         5
            Indeed, each of the cases cited by the Secretary is either a decision of the U.S. Court of Federal Claims (Hoch
v. United States, 33 Fed.Cl. 39 (1995); Eastport Steamship Corp. v. United States, 372 F.2d 1002 (Ct. Cl. 1967)) or an
opinion of the U.S. Court of Appeals for the Federal Circuit arising out of an appeal of a decision of the U.S. Court of
Federal Claims (Khan v. United States, 201 F.3d 1375 (Fed.Cir. 2000); Huston v. United States, 956 F.2d 259 (Fed.Cir.
1992); and Millard v. United States, 916 F.2d 1 (Fed.Cir. 1990)). In either case, all of these cases appear to arise under
the authority of the Tucker Act, see note 6, infra. Indeed, the Secretary has not presented any evidence that the concept
of a money-mandating provision applies anywhere other than in a Tucker Act proceeding.

         6
          The Tucker Act, 28 U.S.C. § 1491, is titled "[c]laims against United States generally; actions involving
Tennessee Valley Authority". It is codified under chapter 91 of title 28, which pertains to the U.S. Court of Federal
Claims.

                                                            9
United States v. Mitchell, 463 U.S. 206, 216 (1983) (emphasis added). As the Supreme Court points
out, in cases under the Tucker Act, which forms the predicate for each of the cases cited by the
Secretary, the money-mandating provision goes not to the issue of sovereign immunity (which is
already waived by way of the Tucker Act), but to the issue of a substantive right to payment. Again,
as the Supreme Court points out in Mitchell, such a money-mandating provision and its substantive
right can arise as well from a regulation as from a statute. Thus, even if we were to find that (a) the
principle of a money-mandating provision applies outside the context of the Tucker Act; (b) that this
principle applies under title 38; (c) that section 5904(d) is permissive rather than mandatory; (d) that
section 5904(d) thus cannot be a money-mandating statute; and (e) that, therefore, the money-
mandating authority that the Court relies upon comes from 38 C.F.R. § 20.609(h), the Secretary still
would not have demonstrated that such an action was "impermissible", let alone that it constituted
a violation of sovereign immunity. Regrettably, in my view, the presentation of such a poorly-
constructed argument, which would fail even if all of its predicate assumptions proved true, is not
only unpersuasive but borders on being frivolous. Cf. 38 U.S.C. § 7265 (contempt authority of the
Court); U.S. VET . APP . R. 38 ("[i]f the Court determines that an appeal is frivolous, it may enter such
order as it deems appropriate").

                                           V. Conclusion
       For all the above reasons, I voted, as did all of my brethren on the Court, to deny en banc
consideration in this case. Notwithstanding that the Secretary's substantive arguments are
unpersuasive, I thought it best that they not be rejected silently.




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