Case: 22-1130 Document: 35 Page: 1 Filed: 01/23/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TARA R. GOFFNEY,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1130
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-4394, Judge Joseph L. Falvey,
Jr.
______________________
Decided: January 23, 2023
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
IGOR HELMAN, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.
MCCARTHY; Y. KEN LEE, DEREK SCADDEN, Office of General
Case: 22-1130 Document: 35 Page: 2 Filed: 01/23/2023
2 GOFFNEY v. MCDONOUGH
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 (“Vet-
erans Court”). The remand order instructed the Board to
“address the correct facts and law in the first instance,” af-
ter 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.
BACKGROUND
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 un-
employability (“TDIU”). Goffney successfully secured ben-
efits for the PTSD claim and was paid for this work. J.A.
93. Thereafter, the veteran revoked Goffney’s power of at-
torney, but not before Goffney had sent the VA papers sup-
porting 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 deci-
sions. The veteran subsequently hired an accredited agent
who filed a Notice of Disagreement with the June 2015 de-
cision. 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 per-
cent fee based on the award of TDIU. The VA denied her
claim after determining that she did not represent the vet-
eran for the filing that led to the TDIU award. J.A. 136−37.
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GOFFNEY v. MCDONOUGH 3
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-con-
nected PTSD benefits that Goffney secured during her rep-
resentation 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 Sec-
retary 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 af-
firmed the single-judge remand decision. J.A. 14−17.
Goffney timely appealed the remand decision to this court.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is governed by
38 U.S.C. § 7292. Unlike other stat-
utory 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
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4 GOFFNEY v. MCDONOUGH
case, any party to the case may obtain a review of the deci-
sion . . . .”). 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 “ordinar-
ily 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 vet-
eran 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 re-
mand proceedings, or, (c) if reversed by this court, would
render the remand proceedings unnecessary; (2) the reso-
lution 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 proceed-
ing 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,
10. But see id. at 6 (describing the remand decision as a
“purportedly non-final decision”). The government re-
sponds by noting that the remand decision does not cite or
discuss § 14.636(c)(2), and therefore it cannot be a clear de-
cision interpreting this statute. We agree. If the remand
order failed to address § 14.636(c)(2), it thus did not pro-
vide 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 re-
mand order as “fail[ing] to address the question of law pre-
sented 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
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GOFFNEY v. MCDONOUGH 5
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 rea-
sonableness of Goffney’s fee. Nor did it address whether
Scates is relevant or applicable here or explore presump-
tions 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 bene-
fits 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 interpreta-
tion 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 enter-
tain those issues in the first instance. Further, there is no
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6 GOFFNEY v. MCDONOUGH
substantial risk that the remand proceeding will deprive
Goffney of an opportunity to contest any legal interpreta-
tion 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 argu-
ment submitted”).
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 con-
sider any remaining Williams factors to conclude that the
remand decision is not immediately appealable.
CONCLUSION
For the foregoing reasons, we therefore dismiss
Goffney’s appeal for lack of jurisdiction.
DISMISSED
