Case: 19-1532    Document: 29     Page: 1   Filed: 04/20/2020




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                    SEAN A. RAVIN,
                    Claimant-Appellant

                             v.

   ROBERT WILKIE, SECRETARY OF VETERANS
                   AFFAIRS,
              Respondent-Appellee
             ______________________

                        2019-1532
                  ______________________

    Appeal from the United States Court of Appeals for
 Veterans Claims in No. 17-285, Judge Coral Wong Pietsch,
 Judge Joseph L. Falvey, Jr., Senior Judge Robert N. Davis.
                 ______________________

                  Decided: April 20, 2020
                  ______________________

    KENNETH M. CARPENTER, Law Offices of Carpenter
 Chartered, Topeka, KS, argued for claimant-appellant.

     ERIC PETER BRUSKIN, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, argued for respondent-appellee. Also repre-
 sented by JOSEPH H. HUNT, CLAUDIA BURKE, ROBERT
 EDWARD KIRSCHMAN, JR.; CHRISTA A. SHRIBER, JONATHAN
 KRISCH, Office of General Counsel, United States Depart-
 ment of Veterans Affairs, Washington, DC.
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2                                              RAVIN v. WILKIE




                   ______________________

     Before LOURIE, CHEN, and STOLL, Circuit Judges.
 CHEN, Circuit Judge.
      The Department of Veteran Affairs (VA) Regional Of-
 fice in Muskogee, Oklahoma (RO) denied an attorney’s re-
 quest that the RO withhold his attorney’s fees from an
 award of a veteran’s past-due benefits, pursuant to a di-
 rect-pay fee agreement with the veteran, and pay those fees
 directly to the attorney under 38 U.S.C. § 5904(d). By stat-
 ute, an attorney “represent[ing] a person before [VA]” must
 “file a copy of any fee agreement” with VA “pursuant to reg-
 ulations prescribed by the Secretary.”            38 U.S.C.
 § 5904(c)(2).      One such regulation is 38 C.F.R.
 § 14.636(h)(4), which requires the attorney to file “a copy of
 the [direct-pay] fee agreement” with “the agency of original
 jurisdiction” (the relevant RO) “within 30 days of the date
 of execution of the agreement.” Because the attorney did
 not comply with that regulatory filing requirement, the
 Court of Appeals for Veterans Claims (Veterans Court)
 held that VA was not obligated to withhold the attorney’s
 fees from the veteran’s past-due benefits and pay those fees
 directly to the attorney. Ravin v. Wilkie, 30 Vet. App. 310,
 316 (2018). For the reasons explained below, we affirm.
                      I.   BACKGROUND
     The appellant, attorney Sean A. Ravin, represented
 veteran Norman E. Cook before VA as to Mr. Cook’s claim
 for past-due disability benefits. On December 1, 2009, Mr.
 Ravin and Mr. Cook entered into an attorney fee agree-
 ment entitling Mr. Ravin to “a contingent fee equal to
 twenty percent (20%) of past-due benefits awarded due to
 or flowing from” his representation of Mr. Cook. The fee
 agreement further contemplated that VA would withhold
 the contingent fee amount from any past-due benefits
 awarded and pay that amount directly to Mr. Ravin.
 J.A. 46 (“Client hereby authorizes and directs the VA to
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 RAVIN v. WILKIE                                            3



 withhold 20% of past-due benefits awarded and to make
 direct payment to Attorney.”); see 38 U.S.C. § 5904(d)(3)
 (providing that VA “may” direct payment of the fee “out of
 the such past-due benefits” pursuant to an attorney fee
 agreement); 38 C.F.R. § 14.636(g)(2) (“A direct-pay fee
 agreement is a fee agreement between the claimant . . . and
 an . . . attorney providing for payment of fees out of past-
 due benefits awarded directly to an . . . attorney.”). Within
 a few days of executing the direct-pay fee agreement,
 Mr. Ravin sent a copy of the fee agreement to the Board of
 Veterans’ Appeals (Board), where it was date stamped as
 received on December 11, 2009. No copy of that fee agree-
 ment, however, was submitted to the RO “within 30 days
 of the date of execution of the agreement,” as required by
 38 C.F.R. § 14.636(h)(4). 1
      Mr. Cook received a favorable ruling from the Board on
 his claim in March 2010, and the RO implemented that de-
 cision by awarding past-due benefits to Mr. Cook in April
 2010. On April 13, 2010, the Attorney Fee Coordinator at
 the RO searched for any attorney fee agreement on file but
 did not find one. As a result, the Attorney Fee Coordinator
 determined that “no attorney fee decision is required” and
 “[a]ll retroactive benefits may be paid directly to the vet-
 eran.” J.A. 67. Subsequently, on April 19, 2010, the RO
 paid the full amount of past-due benefits to Mr. Cook.
 J.A. 80–81.
     On April 27, 2010, Mr. Ravin mailed a copy of his di-
 rect-pay fee agreement with Mr. Cook to the RO and re-
 quested direct payment of his attorney’s fees from Mr.
 Cook’s past-due benefits. J.A. 72–79. The RO subse-
 quently informed Mr. Ravin that it had not withheld his
 attorney’s fees from Mr. Cook’s past-due benefits payment


     1 The applicable regulations are those in effect at the
 time of execution of the fee agreement in December 2009.
 See J.A. 46–50.
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4                                               RAVIN v. WILKIE




 and that it thus would not directly pay those fees to Mr.
 Ravin. The RO explained that Mr. Ravin’s direct-pay fee
 agreement was “not timely filed” in accordance with
 38 C.F.R. § 14.636(h)(4) because Mr. Cook had failed to file
 a copy of the fee agreement with the RO within 30 days of
 its execution. J.A. 80–82.
     Mr. Ravin filed a Notice of Disagreement with the RO’s
 decision, and the Board denied his claim for payment of at-
 torney’s fees by VA. After a long procedural history, the
 Veterans Court issued the decision now on appeal to this
 court, in which the Veterans Court affirmed the Board’s de-
 nial of Mr. Ravin’s claim.
                        II. DISCUSSION
      We have jurisdiction to review challenges to Veterans
 Court decisions regarding the interpretation or validity of
 a statute or regulation. 38 U.S.C. § 7292(c). In conducting
 that review, we must “decide all relevant questions of law.”
 38 U.S.C. § 7292(d)(1). “[S]tatutory interpretations by the
 Veterans Court are reviewed de novo” by this court. Cook
 v. Principi, 353 F.3d 937, 938 (Fed. Cir. 2003). “Interpre-
 tations of regulations . . . may only be set aside if they are:
 ‘(A) arbitrary, capricious, an abuse of discretion, or other-
 wise not in accordance with law; (B) contrary to constitu-
 tional right, power, privilege, or immunity; (C) in excess of
 statutory jurisdiction, authority, or limitations, or in viola-
 tion of a statutory right; or (D) without observance of pro-
 cedure required by law.’”          Id. (quoting 38 U.S.C.
 § 7292(d)(1)). At issue here is the interpretation of
 38 U.S.C. § 5904(d) and 38 C.F.R. § 14.636(g)(3) and (h)(4).
     Section 5904 establishes the framework for attorneys
 to represent benefits claimants at VA on a contingent-fee
 basis. It provides, among other things, that the parties
 may agree that the contingent fee “is to be paid to the agent
 or attorney by the Secretary directly from any past-due
 benefits awarded on the basis of the claim.” 38 U.S.C.
 § 5904(d) (statutory provision for direct payment of
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 RAVIN v. WILKIE                                             5



 contingent fees). The statute then provides that, when
 there is such a direct-pay fee agreement, “[t]o the extent
 that past-due benefits are awarded in any proceeding . . .
 the Secretary may direct that payment of any fee to an
 agent or attorney . . . be made out of such past-due bene-
 fits.” 38 U.S.C. § 5904(d)(3) (emphasis added).
     Further, § 5904(c)(2) provides that an attorney who
 “represents a person before the Department [of Veteran Af-
 fairs] . . . shall file a copy of any fee agreement between
 them with the Secretary pursuant to regulations prescribed
 by the Secretary.” 38 U.S.C. § 5904(c)(2) (emphases added).
 As relevant here, the “regulations prescribed by the Secre-
 tary” are 38 C.F.R. § 14.636(g)(3) and (h)(4), which set forth
 the 30-day filing requirement. Sections 14.636(g)(3) and
 (h)(4) require attorneys to file direct-pay fee agreements
 with the VA’s “Office of the General Counsel” and “the
 agency of original jurisdiction within 30 days of the date of
 execution of the agreement.” The “agency of original juris-
 diction” in this case is the Muskogee RO. See 38 C.F.R.
 § 14.627(b) (The “[a]gency of original jurisdiction means
 the VA activity or administration that made the initial de-
 termination on a claim or matter or that handles any sub-
 sequent adjudication of a claim or matter in the first
 instance.”).
      Mr. Ravin concedes that he did not comply with the
 regulatory requirements relating to filing his direct-pay fee
 agreement with VA. His main contention in this appeal is
 that 38 U.S.C. § 5094(d)(3) mandates VA to withhold and
 directly pay attorney’s fees from a past-due benefits award
 when there is an otherwise valid direct-pay fee agreement,
 and that the Veterans Court misinterpreted 38 C.F.R.
 § 14.636(g)(3) and (h)(4) to override the statutory mandate
 of § 5094(d)(3). Appellant’s Br. at 7–8. The problem for Mr.
 Ravin is that no such mandate exists in the statute.
     As in any case of statutory construction, our analysis
 begins with the language of the statute. Estate of Cowart
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6                                               RAVIN v. WILKIE




 v. Nicklos Drilling Co., 505 U.S. 469 (1992). Section
 5904(d)(3) provides that “[t]o the extent that past-due ben-
 efits are awarded . . . the Secretary may direct that pay-
 ment of any fee to an agent or attorney under a fee
 arrangement.” 38 U.S.C. § 5094(d)(3) (emphasis added).
 We agree with the Veterans Court that the plain language
 of § 5904(d)(3) cannot be read as mandatory. The fact that
 § 5904(d)(3) uses the term “may” means the statute should
 not be read as mandatory. See Andersen Consulting v.
 United States, 959 F.2d 929, 932 (Fed. Cir. 1992) (“The use
 of the permissive ‘may’ instead of the mandatory ‘shall,’ [in
 a statute] authorizes the board to employ its discre-
 tion . . . .”).
     Where the statutory language provides a clear answer,
 the analysis ends there. Hughes Aircraft Co. v. Jacobson,
 525 U.S. 432, 438 (1999). “Beyond the statute’s text, [the
 ‘traditional tools of statutory construction’] include the
 statute’s structure, canons of statutory construction, and
 legislative history.” Timex V.I. v. United States, 157 F.3d
 879, 882 (Fed. Cir. 1998). Here, since the language of
 § 5904(d)(3) is clear on whether its directive is mandatory
 or permissive, it is not necessary for us to go beyond the
 statutory language. Mr. Ravin’s reliance on Snyder v. Prin-
 cipi, 15 Vet. App. 285 (2001) is of no help, because the Vet-
 erans Court in that case held that direct payment is
 mandatory “if the statutory and regulatory requirements
 are met.” Id. at 291.
      Moreover, we reject Mr. Ravin’s assertion that the 30-
 day filing requirement of 38 C.F.R. § 14.636(g)(3) and (h)(4)
 is unenforceable. The Secretary “has authority to prescribe
 all rules and regulations which are necessary or appropri-
 ate to carry out” Congress’s statutory directives. 38 U.S.C.
 § 501(a). In § 5904, Congress expressly confirmed the Sec-
 retary’s authority in the context of filing attorney fee agree-
 ments by providing that an “attorney . . . shall file a copy of
 any fee agreement . . . with the Secretary pursuant to reg-
 ulations prescribed by the Secretary.”             38 U.S.C.
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 RAVIN v. WILKIE                                             7



 § 5904(c)(2) (emphasis added). “If Congress has explicitly
 left a gap for the agency to fill, there is an express delega-
 tion of authority to the agency to elucidate a specific provi-
 sion of the statute by regulation.” Chevron U.S.A. Inc. v.
 Nat. Res. Def. Council, Inc., 467 U.S. 843–44 (1984). “Such
 legislative regulations are given controlling weight unless
 they are arbitrary, capricious, or manifestly contrary to the
 statute.” Id. We agree with the Veterans Court that the
 30-day filing requirement of 38 C.F.R. § 14.636(g)(3) and
 (h)(4), which is intended to allow VA to process direct-pay
 fee agreements as efficiently as possible, is eminently rea-
 sonable. 30 Vet. App. at 316. The facts in this case, where
 the RO had already paid the veteran the full amount of
 past-due benefits before learning of the direct-pay fee
 agreement, illustrate the need for such a regulatory filing
 requirement.
     Next, Mr. Ravin argues that VA’s decision constitutes
 an improper “forfeiture of the attorney fee,” given that none
 of the statutory and regulatory provisions explicitly set
 forth a “penalty” for failing to timely file a fee agreement.
 Appellant’s Br. at 8, 14. As an initial matter, we note that
 Mr. Ravin’s earned fees have not been forfeited, as he re-
 mains entitled to use all available remedies to obtain them
 from his client, Mr. Cook, per their fee agreement. As the
 Veterans Court correctly observed, VA has not seized or de-
 nied Mr. Ravin his fees; “it only has decided not to enter
 the role of paymaster because the appellant did not meet
 the requirements necessary for it to do so.” 30 Vet. App. at
 315.
      We also agree with the Veterans Court that the natu-
 ral, logical consequence of an attorney not complying with
 the direct-pay fee agreement regulations is that VA need
 not provide direct payment. Id. As already explained, VA
 “may,” not shall, by statute provide for direct payment of
 fees per an attorney fee agreement. 38 U.S.C. § 5904(d)(3).
 38 C.F.R. § 14.636(g) and (h), entitled “Fee agreements”
 and “Payment of fees by Department of Veterans Affairs
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8                                              RAVIN v. WILKIE




 directly to an agent or attorney from past-due benefits,”
 enumerate several requirements relating to direct-pay fee
 agreements under this rule. One of those requirements is
 the 30-day filing requirement with “the agency of original
 jurisdiction” in § 14.636(h)(4). The clear import of the reg-
 ulation’s structure is that VA will not assist in collecting
 any attorney’s fees when the enumerated requirements are
 not met. Further, we see no evidence that such a conse-
 quence for failing to adhere to the regulatory filing require-
 ment is arbitrary, capricious, or manifestly contrary to the
 statute.
                         CONCLUSION
     We have considered Mr. Ravin’s remaining arguments,
 but we find them unpersuasive. Accordingly, we affirm the
 decision of the Veterans Court.
                         AFFIRMED
