Carpenter v. Nicholson, No. 05-7066.

CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit
Writing for the CourtNewman
Citation452 F.3d 1379
Docket NumberNo. 05-7066.
Decision Date30 June 2006
PartiesKenneth M. CARPENTER, Claimant-Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.
452 F.3d 1379
Kenneth M. CARPENTER, Claimant-Appellant,
v.
R. James NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.
No. 05-7066.
United States Court of Appeals, Federal Circuit.
June 30, 2006.

Page 1380

Michael E. Wildhaber, Wildhaber & Associates, PLLC, of Washington, DC, argued for claimant-appellant.

J. Reid Prouty, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Bryant G. Snee, Assistant Director. Of counsel were Michelle D.D. Bernstein and Michael J. Timinski, Attorneys, United States Department of Veterans Affairs, of Washington, DC.

Before NEWMAN, MAYER, and SCHALL, Circuit Judges.

Opinion for the court filed by Circuit Judge NEWMAN.

Dissenting opinion filed by Circuit Judge SCHALL.

NEWMAN, Circuit Judge.


Kenneth M. Carpenter, Esq., appeals the decision of the United States Court of Appeals for Veterans Claims ("the Veterans Court"), dismissing his appeal of the denial of attorney fees in accordance with his fee agreement with veteran Dwight D. Bowyer.1 We conclude that the Veterans Court incorrectly interpreted 38 U.S.C. § 5904(c). On the correct interpretation, the fee agreement applies in accordance with its terms. We reverse the dismissal, and remand for application of the correct statutory interpretation.

BACKGROUND

On July 31, 1978 a Veterans Administration regional office ("VARO") awarded Mr. Bowyer a 100% disability rating for service-connected thrombophlebitis of both lower extremities and the right arm, effective May 5, 1978. At annual review on June 14, 1979 the VARO reduced the disability rating to 60%, effective September 1, 1979. Mr. Bowyer did not then appeal this reduction.

Starting in 1988 Mr. Bowyer sought to reestablish the total disability rating, on the ground that his condition was such that he was unable to achieve employment. He brought a claim for 100% disability based on individual unemployability. After various proceedings, the Board of Veterans' Appeals denied the claim on December 15, 1988, and again on June 22, 1990, upon reconsidering its decision in light of a new VA examination conducted in February, 1989. Throughout these proceedings Mr. Bowyer was not represented by counsel.

Mr. Bowyer then obtained the assistance of attorney Carpenter. VA Form 2-22a was duly filed, appointing Mr. Carpenter "to present and prosecute my claim for

Page 1381

any and all benefits from the Veterans Administration." A fee agreement dated December 28, 1990 provided that Mr. Carpenter would provide legal representation to Mr. Bowyer for appeal of the Board's decision to the Veterans Court, at a contingent fee of 20% of "the total amount of any past-due benefits awarded on the basis of the Client's claim with the Veterans Administration."

Mr. Carpenter appealed the Board's 1990 decision to the Veterans Court, and that court on January 19, 1993 granted a joint motion, filed by counsel for the Secretary of Veterans Affairs and Mr. Bowyer, agreeing that the Board's 1990 decision should be vacated for error and the matter remanded to the Board for redetermination. Mr. Bowyer and Mr. Carpenter then entered into a representation agreement in connection with the further proceedings related to "the claim or claims previously decided by the Board of Veterans' Appeals":

[T]his agreement shall include representation of the veteran by the Attorney at both the Board of Veterans' Appeals as well as any Regional Office of the Department of Veterans Affairs .... [If] the Attorney determines that the case should be reopened this agreement shall include services rendered in connection with the reopening of an issue previously denied by the Board of Veterans' Appeals.

Agreement dated June 17, 1993.

Mr. Carpenter's efforts on remand were successful, and on July 7, 1993 the Board awarded Mr. Bowyer the 100% disability rating. On August 9, 1993 the VARO assigned this rating an effective date of January 9, 1989, the date of a VA examination. By claim filed in December 1995 Mr. Carpenter raised the issue of the effective date, arguing to the VARO that the error in the disability rating extended back to the VARO's June 1979 decision that reduced Mr. Bowyer's original 100% disability rating; he argued that 1979 should be the effective date because there was clear and unmistakable error ("CUE") in the VARO's 1979 decision. On April 30, 1996 the VARO denied the 1979 date, and Mr. Carpenter appealed to the Board. On October 30, 1997 the Board accepted Mr. Carpenter's position, and held that there was CUE in the VARO's 1979 decision. Mr. Carpenter returned to the VARO, which restored the 100% disability rating as retroactive to and continuous from the initial effective date of May 5, 1978. This was the complete relief sought by Mr. Bowyer.

On June 24, 1998 the Board sent a letter to Mr. Carpenter stating that he is not entitled to a fee for his services performed before the Board's October 30, 1997 decision establishing the 1978 effective date, because that decision was the "first ... final decision in the case," § 5904(c)(1). Mr. Carpenter demurred, and on October 14, 1998 the Board reviewed the fee agreement in accordance with 38 U.S.C. § 5904(c).2 The Board then held that the fee agreement was per se "unreasonable" under § 5904(c)(2) because Mr. Carpenter

Page 1382

was not eligible to charge a fee for legal services provided before October 30, 1997, the date of the Board's ultimate decision. Thus, the Board held that Mr. Carpenter's legal services were not compensable.

The Veterans Court agreed. The court rejected the position that the "case" began when the Board in 1990 denied the veteran's claim for 100% disability, and held that there was no "final decision in the case" until the Board decision of October 30, 1997. The Veterans Court remanded, and the Board determined that Mr. Carpenter had performed no legal services on or after October 30, 1997 (the "first final decision") and therefore that no fee was payable under the fee agreement.

Mr. Carpenter again appealed, arguing that the Board and the Veterans Court had not correctly interpreted the fee statute. The Veterans Court then held that it did not have jurisdiction over the appeal. The Veterans Court explained its "lack of jurisdiction" as follows:

In the instant appeal, the Court finds that, based on the evidence of record, the June 1993 fee agreement does not extend to services provided in connection with the veteran's December 1995 CUE claim. In this regard, the Court notes that the services provided by the appellee with respect to the December 1995 claim for CUE do not "relate specifically to the claim ... previously decided by the Board [in its June 1990 decision]." Because there is no applicable fee agreement for the Court to review, the Court lacks jurisdiction to review this appeal.

Carpenter, 2004 WL 2062544, at *2 (internal citations omitted). Mr. Carpenter appeals to this court, arguing that the Veterans Court incorrectly interpreted the fee statute and this court's precedent.

DISCUSSION

Jurisdiction

Pursuant to 38 U.S.C. § 7292, the Federal Circuit is assigned jurisdiction of "(1) issues concerning the validity of statutes or regulations on which the decision of the Court of Appeals for...

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11 practice notes
  • Part II
    • United States
    • Federal Register May 22, 2008
    • 22 Mayo 2008
    ...this context, the Federal Circuit issued its opinions in Stanley v. Principi, 283 F.3d 1350 (Fed. Cir. 2002), and Carpenter v. Nicholson, 452 F.3d 1379 (Fed. Cir. 2006), both of which concerned the payment of fees after a first final Board Under the amendments to chapter 59, Congress shifte......
  • Military-Veterans Advocacy v. Sec'y of Veterans Affairs, 2019-1600, 2019-1680, 2019-1685, 2019-1687
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 30 Julio 2021
    ...veteran is faced with the complexities of appealing, reopening, and/or correcting prior adverse decisions." See Carpenter v. Nicholson , 452 F.3d 1379, 1383 (2006) ; see also Stanley v. Principi , 283 F.3d 1350, 1356 (2002) ("[S]ection 5904(c) was designed to allow veterans to retain paid c......
  • Military-Veterans Advocacy v. Sec'y of Veterans Affairs, 2019-1685
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 30 Julio 2021
    ...veteran is faced with the complexities of appealing, reopening, and/or correcting prior adverse decisions." See Carpenter v. Nicholson, 452 F.3d 1379, 1383 (2006); see also Stanley v. Principi, 283 F.3d 1350, 1356 (2002) ("[S]ection 5904(c) was designed to allow veterans to retain paid coun......
  • Alpough v. Nicholson, No. 2006-7304.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 18 Junio 2007
    ...of `a decision of the [Veterans] Court on a rule of law' a separate jurisdictional basis"); see also, e.g., Carpenter v. Nicholson, 452 F.3d 1379, 1382-83 (Fed. Cir.2006). The government's argument that we lack jurisdiction is Under 38 U.S.C. § 101(3), a person is a "surviving spouse" entit......
  • Request a trial to view additional results
10 cases
  • Military-Veterans Advocacy v. Sec'y of Veterans Affairs, 2019-1600, 2019-1680, 2019-1685, 2019-1687
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 30 Julio 2021
    ...veteran is faced with the complexities of appealing, reopening, and/or correcting prior adverse decisions." See Carpenter v. Nicholson , 452 F.3d 1379, 1383 (2006) ; see also Stanley v. Principi , 283 F.3d 1350, 1356 (2002) ("[S]ection 5904(c) was designed to allow veterans to retain paid c......
  • Military-Veterans Advocacy v. Sec'y of Veterans Affairs, 2019-1685
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 30 Julio 2021
    ...veteran is faced with the complexities of appealing, reopening, and/or correcting prior adverse decisions." See Carpenter v. Nicholson, 452 F.3d 1379, 1383 (2006); see also Stanley v. Principi, 283 F.3d 1350, 1356 (2002) ("[S]ection 5904(c) was designed to allow veterans to retain paid coun......
  • Alpough v. Nicholson, No. 2006-7304.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 18 Junio 2007
    ...of `a decision of the [Veterans] Court on a rule of law' a separate jurisdictional basis"); see also, e.g., Carpenter v. Nicholson, 452 F.3d 1379, 1382-83 (Fed. Cir.2006). The government's argument that we lack jurisdiction is Under 38 U.S.C. § 101(3), a person is a "surviving spouse" entit......
  • Gumpenberger v. McDonough, 20-4155
    • United States
    • United States Court of Appeals For Veterans Claims
    • 3 Marzo 2022
    ...at 746-58. [63] 26 Vet.App. 109 (2012), aff'd, 561 F. App'x. 922 (Fed. Cir. 2014). [64] Id. at 110. [65]Id. at 111. [66] Id. at 115. [67] 452 F.3d 1379 (Fed. Cir. 2006). [68] Id. at 1384. [69]26 Vet.App. at 115. [70] 587 F.3d 1106 (Fed. Cir. 2009). [71] 26 Vet.App. at 116. [72] Appellant's ......
  • Request a trial to view additional results
1 provisions
  • Part II
    • United States
    • Federal Register May 22, 2008
    • 22 Mayo 2008
    ...this context, the Federal Circuit issued its opinions in Stanley v. Principi, 283 F.3d 1350 (Fed. Cir. 2002), and Carpenter v. Nicholson, 452 F.3d 1379 (Fed. Cir. 2006), both of which concerned the payment of fees after a first final Board Under the amendments to chapter 59, Congress shifte......

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