Sean A. Kendall, an attorney who represented a veteran in a disability benefits case, was ordered to repay over $5,700 in fees after the VA Office of General Counsel determined his 20% contingency fee was unreasonable given the limited work performed. Kendall had filed a notice of disagreement on behalf of veteran Martin L. Smith challenging a 70% disability rating, seeking a 100% rating. However, the VA granted Smith's 100% rating based on a separate theory Smith had previously pursued without Kendall's assistance.
Initially, the VA paid Kendall $6,356.50 under his fee agreement, representing 20% of Smith's $33,374 past-due benefits award. But after Smith challenged the fee's reasonableness, the VA OGC conducted a review and reduced the reasonable fee to just $623.44, ordering Kendall to refund the $5,733.06 difference. Both the Board of Veterans' Appeals and the Veterans Court affirmed this determination.
On appeal, Kendall argued the Federal Circuit could review the case not as a fee determination but as a challenge to the Veterans Court's interpretation of regulations governing the presumptive reasonableness of 20% fees. He contended that 38 C.F.R. § 14.636(f) conflicts with 38 U.S.C. § 5904(a)(5) regarding when fees under 20% are presumed reasonable.
The Federal Circuit rejected this argument, citing its precedent in Carpenter v. Principi, which held that 38 U.S.C. § 7263(d) creates a specific carveout from the court's general appellate jurisdiction. The statute explicitly states that Veterans Court fee decisions 'may not be reviewed in any other court,' language the panel found 'plain and unambiguous.' The court emphasized that specific statutory exclusions trump general jurisdictional grants, and the prohibition extends to challenges to the Veterans Court's interpretation of related statutes and regulations.