Wick, Matter of, 94-7017

• Decision Date: 07 November 1994
• Docket Number: No. 94-7017,94-7017
• Citation: 40 F.3d 367
• Parties: In the Matter of the Fee Agreement of Bruce Tyler WICK. Bruce Tyler WICK, Movant-Appellee, v. Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellant.
• Court: U.S. Court of Appeals — Federal Circuit

Page 367

40 F.3d 367

63 USLW 2319

In the Matter of the Fee Agreement of Bruce Tyler WICK Bruce Tyler WICK, Movant-Appellee, v. Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellant.

No. 94-7017.

United States Court of Appeals Federal Circuit.

Nov. 7, 1994.

Bruce Tyler Wick, argued Pro Se. Keith D. Snyder, Westlake, OH, argued for movant-appellee.

John S. Groat, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, DC, argued for respondent-appellant. With him on the brief were Frank W. Hunger, Asst. Atty. Gen. and David M. Cohen, Director. Of counsel were Donald E. Zeglin and Martin Sendek, Dept. of Veterans Affairs.

William G. Smith, Vice-President, Nat. Organization of Veterans Advocates, Los Angeles, CA, was on the brief for amicus curiae, Nat. Organization of Veterans Advocates.

Before MAYER, MICHEL, and LOURIE, Circuit Judges.

LOURIE, Circuit Judge.

The Secretary of Veterans Affairs ("Secretary") appeals from the September 3, 1993 decision of the United States Court of Veterans Appeals directing the Secretary to pay Bruce Tyler Wick the attorney fee specified in a fee agreement between Wick and his client. In re Wick, No. 91-1412 (reported as In re Smith, 4 Vet.App. 487), reh'g en banc denied, 5 Vet.App. 307 (1993). Because the court lacked subject matter jurisdiction over Wick's motion to compel payment, we vacate and remand for entry of dismissal.

BACKGROUND

Prior to the enactment of the Veterans' An attorney or agent who represents a claimant before the Department or the Board after the Board makes a final decision in the case is required to file a copy of any fee agreement with the Board. Id. Sec. 5904(c)(2). The Board, "upon its own motion or the request of either party, may review such a fee agreement and may order a reduction in the fee called for in the agreement if the Board finds that the fee is excessive or unreasonable." Id. Sec. 5904(c)(2). A finding or order pursuant to such review may be reviewed by the Court of Veterans Appeals, which "may affirm the finding or order of the Board and may order a reduction in the fee called for in the agreement if it finds that the fee is excessive or unreasonable." See id. Secs. 5904(c)(2), 7263(d).

                Judicial Review Act (VJRA), 1 an attorney or agent was proscribed, under threat of fine and imprisonment, from charging a claimant of veteran's benefits more than $10 for representation before the Department of Veterans' Affairs or the Board of Veterans' Appeals.  See Smith, 4 Vet.App. at 490.   With the passage of the VJRA, Congress repealed the $10 fee limitation and permitted claimants to enter into fee agreements with attorneys and agents representing them, provided the agreement met specific requirements.  See 38 U.S.C. Sec. 5904.  Under limited circumstances, set forth in Sec. 5904(d), an attorney is now entitled to payment "by the Secretary directly from any past-due benefits awarded on the basis of the claim."   Id. Sec. 5904(d)(2)(A)
                

Furthermore, a representative of an appellant before the Court of Veterans Appeals shall file a copy of any fee agreement with the court when an appeal is filed. 38 U.S.C. Sec. 7263(c). The court, "on its own motion or the motion of any party, may review such a fee agreement" and "may order a reduction in the fee called for in the agreement if it finds that the fee is excessive or unreasonable." Id. Sec. 7263(c), (d). An order of the court resulting from a review of a Board finding or order with respect to a fee agreement or from a review of a fee agreement filed in connection with an appeal to the court is "final and may not be reviewed in any other court." Id. Sec. 7263(d).

Reichbaum, a veteran, was denied his claim for an increase in his disability rating at the Board. Wick, an attorney, entered into a fee agreement with Reichbaum, pursuant to which Wick agreed to represent Reichbaum in an appeal to the Court of Veterans Appeals. The agreement provided that Reichbaum would pay Wick a "fixed fee" of $800.00 and, if the case were to be resolved in favor of Reichbaum, a "contingent fee" of 20 percent of any past-due benefits awarded to Reichbaum, less the fixed fee. The agreement further provided that the "Contingent Fee is to be paid by the [Department] directly to the Attorney from any past-due benefits awarded on the basis of [Reichbaum's] claim," but that Reichbaum "remains liable ... unless and until the fee is paid to the Attorney by the [Department]."

On August 16, 1991, Wick filed a Notice of Appeal at the Court of Veterans Appeals along with a copy of the fee agreement. By Order dated March 27, 1992, the court vacated and remanded the case, Reichbaum v. Derwinski, 2 Vet.App. 340, and, on remand, the Board awarded Reichbaum an increase in disability rating from 70 to 100 percent, thereby entitling Reichbaum to $37,433.00 in past-due benefits.

Wick then filed a copy of the fee agreement with the Department and requested payment by the Secretary of 20 percent of the past-due benefits awarded to Reichbaum, less the $800.00 fixed fee, amounting to $6,686.60. The Secretary denied Wick's request because he had already disbursed all of the past-due benefits directly to Reichbaum. ²

Wick then filed a "Motion to Compel Payment of Attorney's Fees" with the Court of Veterans Appeals seeking an order directing the Secretary to pay Wick the fee specified in the agreement.

The court, treating Wick's "Motion to Compel Payment of Attorney's Fees" as a "petition for a writ of mandamus," held that the fee agreement satisfied the statutory requirements of 38 U.S.C. Sec. 5904(d) and that Wick was entitled to be paid his agreed-upon fee by the Secretary. The court accordingly directed the Secretary to pay Wick $6,686.60. The Secretary now appeals.

DISCUSSION

The Secretary argues that he is not permitted to pay Wick his fee because the agreement in question does not comply with 38 U.S.C. Sec. 5904. Alternatively, the Secretary asserts that Sec. 5904 does not mandate payment of Wick's fee because Reichbaum's past-due benefits have been disbursed. Wick, while disagreeing with these assertions, also asserts that 38 U.S.C. Sec. 7263(d) deprives us of subject matter jurisdiction over the Secretary's appeal.

Before considering these questions, we first must consider an even more fundamental question: whether Wick's motion was properly before the Court of Veterans Appeals. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986) ("[E]very federal appellate court has a special obligation to 'satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review'.") (quoting Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338 (1934)); see also Mayer v. Brown, 37 F.3d 618, 619 (Fed.Cir.1994) (Federal Circuit reviews Court of Veterans Appeals with respect to its interpretation of jurisdictional statute); 38 U.S.C. Sec. 7292(d)(1) (in reviewing a decision of the Court of Veterans Appeals, the Federal Circuit decides all relevant questions of law). If the Court of Veterans Appeals lacked jurisdiction over the matter, then "we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the [court] in entertaining the suit." See Bender, 475 U.S. at 541, 106 S.Ct. at 1331 (quoting United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct. 829, 832, 80 L.Ed. 1263 (1936)).

Whether the Court of Veterans Appeals properly had jurisdiction over Wick's motion is a matter of statutory interpretation, which this court undertakes de novo. Weddel v. Secretary of the Dep't of Health & Human Servs., 23 F.3d 388, 391 (Fed.Cir.1994). For the following reasons, we conclude that the court lacked jurisdiction. Thus, we do not reach the merits of Wick's appeal to the Court of Veterans Appeals or the Secretary's appeal to this court.

The jurisdiction of the Court of Veterans Appeals is specifically defined by statute at 38 U.S.C. Sec. 7252, in a provision entitled "Jurisdiction; finality of decisions." That provision states: "The Court of Veterans Appeals shall have exclusive jurisdiction to review decisions of the Board of Veterans' Appeals.... The Court shall have power to affirm, modify, or reverse a decision of the Board or to remand the matter, as appropriate." 38 U.S.C. Sec. 7252 (emphasis supplied). In determining the jurisdiction conferred by Sec. 7252, we are mindful that "[j]urisdictional statutes are to be construed 'with precision and with fidelity to the terms by which Congress has expressed its wishes'." Palmore v. United States, 411 U.S. 389, 396, 93 S.Ct. 1670, 1675, 36 L.Ed.2d 342 (1973) (quoting Cheng Fan Kwok v. INS, 392 U.S. 206, 212, 88 S.Ct. 1970, 1974, 20 L.Ed.2d 1037 (1968)). Since it is clear that the action of the Secretary in denying payment to Wick was not a decision of the Board, it would seem equally clear that the court lacks jurisdiction over Wick's petition from that denial.

The Court of Veterans Appeals premised its jurisdiction on 38 U.S.C. Secs. 5904(d) and 7263(c), stating: "The VJRA specifically vested this Court with the jurisdiction and Sections 5904 and 7263 are not, however, jurisdictional provisions. Section 5904 merely sets forth the requirements of a fee agreement permitting payment directly by the Secretary. Section 7263 authorizes the court to "review" fee agreements between an appellant and a person representing the appellant before the court when an appeal is properly before the court and when a copy of the fee agreement has been filed with the court at the time the appeal is filed. 38 U.S.C. Sec. 7263(c). Thus, fee agreements are properly before the court only when it reviews decisions of the Board concerning an agreement or on any other matter decided by the Board. When Wick's motion was filed, however, the court did not have before it a decision of the Board for review. Wick thus impermissibly bypassed the Board by directly...