Summary
The United States Court of Appeals for the Federal Circuit dismissed Sean A. Kendall’s appeal for lack of jurisdiction. The court held that 38 U.S.C. § 7263(d) bars review of Veterans Court orders concerning the reasonableness of attorneys’ fees, including related statutory and regulatory interpretation issues, and concluded that later amendments to 38 U.S.C. § 5904 did not repeal that jurisdictional bar. Judge Dyk concurred, agreeing that Carpenter v. Principi controlled but suggesting that Carpenter was wrongly decided.
Topics
Practice areas
Questions Presented
- Whether 38 U.S.C. § 7263(d) deprives the Federal Circuit of jurisdiction to review a Veterans Court order concerning the reasonableness of a veterans-benefits attorney fee agreement.
- Whether the Federal Circuit may review Kendall's legal challenges to the interpretation and validity of 38 C.F.R. § 14.636(f) and 38 U.S.C. § 5904(a)(5), notwithstanding § 7263(d)'s prohibition on review of the Veterans Court's fee-agreement orders.
- Whether the 2006 amendments to 38 U.S.C. § 5904 implicitly repealed or limited the jurisdiction-stripping effect of § 7263(d).
Holdings
- 38 U.S.C. § 7263(d) deprives the Federal Circuit of jurisdiction to review a Veterans Court order affirming or altering a Board or VA determination concerning the reasonableness or excessiveness of a veterans-benefits attorney fee agreement.
- The Federal Circuit lacks jurisdiction not only over factual challenges to the amount of a fee but also over Kendall's challenges to the Veterans Court's interpretation of related statutes and the validity of related regulations when those challenges arise from the Veterans Court's fee-reasonableness order.
- The 2006 amendments to 38 U.S.C. § 5904 did not implicitly repeal or limit § 7263(d); the Federal Circuit therefore remains barred from reviewing Veterans Court orders concerning fee agreements governed by § 5904(c).
Key quotations
“An order of the Court under this subsection is final and may not be reviewed in any other court.” (5)
“when the Veterans’ Court makes a determination as to the reasonableness of a fee agreement, either in the first instance or on review of a determination by the Board, this court has no jurisdiction to review the resulting order of the Veterans’ Court.” (8)
“The Board’s jurisdiction in this narrow category is conferred by § 5904(c)(3)(B); the cross-reference to § 7104 describes the manner of that review, not a change in the statutory source of jurisdiction.” (13)
Factual background
Kendall was appointed in September 2012 to represent Smith in veterans-benefits proceedings and filed a fee agreement providing for a 20 percent contingency fee. Smith had independently sought a 100 percent disability rating based on individual unemployability before Kendall's appointment, and the VA later granted that rating without referencing Kendall's notice of disagreement. After the VA paid Kendall $6,356.50, the VA Office of General Counsel found the fee unreasonable because Kendall had spent limited time on the matter and the award rested on Smith's own TDIU theory, reducing the reasonable fee to $623.44 and ordering a refund of $5,733.06.
Procedural history
Kendall represented veteran Martin L. Smith under a fee agreement providing for a fee equal to 20 percent of past-due benefits. After the VA initially paid Kendall $6,356.50, the VA Office of General Counsel determined that the fee was unreasonable and reduced it to $623.44, ordering Kendall to refund the difference. The Board affirmed, and the Veterans Court affirmed the Board. Kendall appealed to the Federal Circuit, which dismissed for lack of jurisdiction under 38 U.S.C. § 7263(d).