Veteranclaims’s Blog

January 23, 2023

Federal Circuit Application; “generally declined to review non-final orders of the Veterans Court.” Williams v. Principi, 275 F.3d 1361, 1364−65 (Fed. Cir. 2002); we hold that the remand decision was not a clear and final decision of a legal issue, we need not consider any remaining Williams factors to conclude that the remand decision is not immediately appealable;

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit



Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-4394, Judge Joseph L. Falvey,

Decided: January 23, 2023

KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
IGOR HELMAN, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
Case: 22-1130 Document: 35 Page: 1 Filed: 01/23/2023
Counsel, United States Department of Veterans Affairs,
Washington, DC.

Before LOURIE, TARANTO, and STOLL, Circuit Judges.
LOURIE, Circuit Judge.
Tara R. Goffney appeals from a remand order of the
United States Court of Appeals for Veterans Claims (“Veterans
Court”). The remand order instructed the Board to
“address the correct facts and law in the first instance,” after
setting aside a Board decision holding that Goffney was
not entitled to attorney fees. See Goffney v. McDonough,
No. 19-4394, 2021 WL 1096379 (Vet. App. Mar. 23, 2021)
(“Decision”). We dismiss.
In 2010, Goffney was retained as counsel by a veteran
seeking to secure disability benefits for service-connected
PTSD and a total disability rating based on individual unemployability
(“TDIU”). Goffney successfully secured benefits
for the PTSD claim and was paid for this work. J.A.93.

Thereafter, the veteran revoked Goffney’s power of attorney,
but not before Goffney had sent the VA papers supporting
the veteran’s TDIU claim, and the veteran
continued to pursue his TDIU claim pro se. J.A. 72-92. The
VA denied TDIU in June 2014 and June 2015 rating decisions.
The veteran subsequently hired an accredited agent
who filed a Notice of Disagreement with the June 2015 decision.
In January 2016, a VA Decision Review Officer
granted TDIU. J.A. 126−30. The Review Officer also
granted the accredited agent entitlement to a 20 percent
agent fee. J.A. 131.
Goffney then requested that she also be paid a 20 percent
fee based on the award of TDIU. The VA denied her
claim after determining that she did not represent the veteran
for the filing that led to the TDIU award. J.A. 136−37.
Case: 22-1130 Document: 35 Page: 2 Filed: 01/23/2023
Goffney appealed to the Board, asserting that TDIU is a
downstream issue that was part of the original claim. In
May 2019, the Board denied Goffney’s claim for attorney
fees, holding that there was no final Board decision on the
issue of TDIU, which is required for attorney fees under
38 C.F.R. § 14.636(c)(2). J.A. 195−203. The Board also
found that TDIU was a separate issue from the service-connected
PTSD benefits that Goffney secured during her representation
of the veteran.
Goffney appealed to the Veterans Court, asserting that
the Board’s May 2019 decision should be reversed and that
she should be awarded an attorney fee of 20 percent of the
January 2016 award pursuant to § 14.636(c)(2). The Secretary
of Veterans Affairs agreed that the Board erred in
denying Goffney reasonable attorney fees but disagreed
that Goffney was necessarily entitled to the 20 percent fee.
J.A. 210−20. The Secretary counseled that remand was
needed for the Board to make findings of fact regarding
what constituted a reasonable fee under the circumstances
in view of § 14.636(e), (f)(2) and Scates v. Principi, 282 F.3d
1362 (Fed. Cir. 2002). The Veterans Court then set aside
the Board’s finding that attorney fees were not warranted
and remanded for the Board to “address the correct facts
and law in the first instance.” Decision at 1. Goffney
moved for referral for a panel decision, and the panel affirmed
the single-judge remand decision. J.A. 14−17.
Goffney timely appealed the remand decision to this court.
Our jurisdiction to review decisions of the Veterans
Court is governed by 38 U.S.C. § 7292. Unlike other statutory
provisions governing our jurisdiction, § 7292 does not
expressly premise appellate review on the finality of the
Veterans Court’s decision. Compare, e.g., 28 U.S.C.
§ 1295(a)(1) (conferring jurisdiction over “an appeal from a
final decision of a district court”), with 38 U.S.C. § 7292(a)
(“After a decision of the [Veterans Court] is entered in a
Case: 22-1130 Document: 35 Page: 3 Filed: 01/23/2023
case, any party to the case may obtain a review of the decision
. . . .”). Nevertheless, we have “generally declined to
review non-final orders of the Veterans Court.” Williams
v. Principi, 275 F.3d 1361, 1364−65 (Fed. Cir. 2002)
; see
also Winn v. Brown, 110 F.3d 56, 57 (Fed. Cir. 1997). This
includes remand orders, which we have held are “ordinarily
not appealable because they are not final.” Adams v.
Principi, 256 F.3d 1318, 1320 (Fed. Cir. 2001).
Our decision in Williams provides a limited exception.
We will depart from the strict rule of finality when a veteran
establishes that: (1) the Veterans Court issued a clear
and final decision of a legal issue that (a) is separate from
the remand proceedings, (b) will directly govern the remand
proceedings, or, (c) if reversed by this court, would
render the remand proceedings unnecessary; (2) the resolution
of the legal issue adversely affects the party seeking
review; and (3) there is a substantial risk that the decision
would not survive a remand, i.e., that the remand proceeding
may moot the issue. Williams, 275 F.3d at 1364.
Goffney argues that the remand decision is, implicitly,
a final decision interpreting § 14.636(c)(2). Blue Br. at 1,

  1. But see id. at 6 (describing the remand decision as a
    “purportedly non-final decision”). The government responds
    by noting that the remand decision does not cite or
    discuss § 14.636(c)(2), and therefore it cannot be a clear decision
    interpreting this statute. We agree. If the remand
    order failed to address § 14.636(c)(2), it thus did not provide
    a clear and final decision on § 14.636(c)(2), and does
    not meet the Williams exception to finality.
    We also note that Goffney herself characterizes the remand
    order as “fail[ing] to address the question of law presented
    by Ms. Goffney, which was whether her right to
    charge and receive a fee is controlled by the provisions of
    § 14.636(c)(2).” Blue Br. at 1−2; see also id. at 7 (asserting
    that “the Board erred by failing to consider and correctly
    apply the provisions of 38 C.F.R. § 14.636(c)(2)” and that
    Case: 22-1130 Document: 35 Page: 4 Filed: 01/23/2023
    the “Veterans Court did not address this averment of error
    in its decision”); id. at 17 (“This question of law required an
    interpretation of § 14.636(c)(2) (2011) which the Veterans
    Court never provided.”); id. at 24 (describing “the Veterans
    Court’s failure to consider and apply the provisions of
    38 C.F.R. § 14.636(c)(2)”).
    Nor does the remand decision provide a clear and final
    decision of a legal issue involving a different provision of
    law. For example, the remand decision did not analyze the
    provisions of 38 U.S.C. § 5904(c)(3) or 38 C.F.R. § 14.636(i)
    to assess whether the Board has jurisdiction to review reasonableness
    of Goffney’s fee. Nor did it address whether
    Scates is relevant or applicable here or explore presumptions
    of fee reasonableness under 38 U.S.C. § 5904(a)(5) or
    38 C.F.R. § 14.636(e), (f)(1). It did not interpret 38 U.S.C.
    § 5904(d) to make a holding regarding payment of fees in
    connection with past-due benefits when, e.g., it appears
    that “20 percent of the total amount of any past-due benefits
    awarded on the basis of the claim” may have already
    been paid to the accredited agent who secured the TDIU
    grant. Instead, the remand decision simply instructs the
    “Board to address the correct facts and the law in the first
    instance.” Decision at 1.
    Goffney cites Caesar v. West, 195 F.3d 1373, 1375 (Fed.
    Cir. 1999), as an example of this court holding a remand
    decision to be clear and final because the issue raised by
    the appellant “was obviously not resolved by the remand
    decision.” Grey Br. at 4. But here, the issue raised by
    Goffney was not left unresolvable by the Veterans Court’s
    order directing the “Board to apply the proper interpretation
    of the law to the correct facts in the first instance.”
    Decision at 2. As Goffney concedes, it does not instruct the
    Board as to what the “proper interpretation of the law” is.
    Grey Br. at 6. Thus, the remand decision did not decide
    any legal question regarding the standard of Goffney’s
    claim for fees, and the Board is free, on remand, to entertain
    those issues in the first instance. Further, there is no
    Case: 22-1130 Document: 35 Page: 5 Filed: 01/23/2023
    substantial risk that the remand proceeding will deprive
    Goffney of an opportunity to contest any legal interpretation
    that allows the Board to review the reasonableness of
    her fee. See Decision at 3 (stating that “[i]n pursuing her
    claim on remand, [Goffney] will be free to submit additional
    argument and evidence as to the remanded matter” and
    that the “Board must consider any such evidence or argument
    After completion of the remand proceedings and entry
    of a final judgment, if Goffney is dissatisfied with the final
    Board decision, she may then appeal to the Veterans Court
    and, if desired, to this court. See Myore v. Principi, 323
    F.3d 1347, 1351−52 (Fed. Cir. 2003); Winn, 110 F.3d at 57.
    Because we hold that the remand decision was not a
    clear and final decision of a legal issue, we need not consider
    any remaining Williams factors to conclude that the
    remand decision is not immediately appealable
    For the foregoing reasons, we therefore dismiss
    Goffney’s appeal for lack of jurisdiction.
    Case: 22-1130 Document: 35 Page: 6 Filed: 01/23/2023

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