recalling mandate when a subsequent en banc decision represented a "pivotal departure" from the existing law that served as the basis for the underlying decision
How later courts described this case
- recalling mandate when a subsequent en banc decision represented a "pivotal departure" from the existing law that served as the basis for the underlying decision
Written by the judges who cited it.
The opinion
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
N O . 97-2132
K EITH D. S NYDER, A PPELLANT ,
V.
HERSHEL W. GOBER,
A CTING S ECRETARY OF V ETERANS A FFAIRS, A PPELLEE.
Before FARLEY, HOLDAWAY, and IVERS, Judges.
ORDER
On March 24, 2000, this Court granted the parties' joint motion for remand in this matter for
the Board of Veterans' Appeals (BVA or Board) to consider the appellant's eligibility to collect a fee
from the veteran regarding the veteran's claim for total disability based upon individual
unemployability (TDIU). That order constituted the mandate of this Court. U.S. VET . APP . R. 41(b).
On August 31, 2000, the appellant filed an unopposed motion to vacate the Court's March 24 order
in light of this Court's recent decision in Scates v. Gober, __ Vet.App. __, No. 97-875 (Aug. 14,
2000) (en banc). For the reasons that follow, the Court will grant the appellant's motion.
I. BACKGROUND
The appellant represented the veteran, Thomas J. Hagen, in the pursuit of an award of, inter
alia, TDIU. The veteran was awarded TDIU in January 1997. In February 1997, the VA regional
office (RO) notified the veteran and the appellant that the case was being transferred to the Board
for a determination as to the attorney's eligibility for direct payment of his fees pursuant to 38 U.S.C.
§ 5904(d) from past-due benefits due as a result of the January 1997 award. The RO never
conducted its own initial review of the fee agreement.
On November 19, 1997, the Board found, inter alia, that the appellant was not entitled to
direct payment of fees from past-due TDIU benefits payable to the veteran because it found that the
veteran's TDIU claim had not been the subject of a final BVA decision. The appellant appealed that
decision to this Court. Pursuant to a joint motion, the Court remanded the appellant's claim to the
Board for readjudication of the appellant's fee agreement pursuant to our decision regarding TDIU
claims in In the Matter of the Fee Agreement of Mason, 13 Vet.App. 79 (1999). On April 14, 2000,
the appellant submitted an application pursuant to the Equal Access to Justice Act (EAJA) for fees
and expenses incurred in the defense of his fee agreement in this matter.
On August 14, 2000, the en banc Court issued its decision in Scates, supra, remanding a
similar claim because the Board lacked jurisdiction to review the attorney's fee agreement. Based
upon our decision in Scates, the appellant filed an unopposed motion to vacate our March 24, 2000,
order.
II. ANALYSIS
"A court has the power to set aside judgment where necessary to protect the integrity of its
own processes." McNaron v. Brown, 10 Vet.App. 61, 63 (1997). The exercise of this power is in
the discretion of the Court; however, "such discretion may be exercised only for good cause or to
prevent injustice, and only when 'unusual circumstances exist sufficient to justify modification or
recall of a final judgment.'" Id. (quoting Zipfel v. Halliburton, Co., 861 F.2d 565, 567 (9th Cir.
1988). In Zipfel, the U.S. Court of Appeals for the Ninth Circuit recalled its mandate "to protect the
integrity" of its prior judgment after the Supreme Court issued a decision which "depart[ed] in a
pivotal aspect" from its decision. 861 F.2d at 567.
In Scates, supra, the en banc Court held that:
[A]ll issues involving entitlement or eligibility for attorney fees under direct-payment
contingency-fee agreements, as contrasted with the issues of reasonableness and
excessiveness, must be first addressed by the RO in accordance with the normal
adjudication procedures and cannot be the subject of a sua sponte or other original
(on motion) BVA review.
Scates, __ Vet.App. at __, slip op. at 4; See also Cox v. West, 149 F.3d 1360 (Fed.Cir. 1998).
As stated above, the RO has never addressed the matter of the appellant's entitlement or
eligibility for fees pursuant to section 5904(d); instead, the matter was referred directly to the BVA.
As we held in Scates, the Board therefore lacked jurisdiction to review that issue. Although not
expressly stated in our March 24, 200, order, our remand in this case presumed that the Board had
jurisdiction to decide this matter. The en banc Court's decision in Scates, however, makes clear that
the Board did not have jurisdiction to render its original decision in this matter, or to act on this
Court's March 24, 2000, remand. This pivotal departure from our March 24, 2000, decision,
necessitates the recall of our March 24, 2000, mandate and the vacation of our order remanding this
case. See Zipfel, 861 F.2d at 567.
III. CONCLUSION
Upon consideration of the foregoing, it is
ORDERED that the appellant's unopposed motion is granted, and the Court's March 24,
2000, order and mandate are hereby recalled. It is further
ORDERED that the appellant's EAJA application is dismissed as premature. It is further
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ORDERED that the November 19, 1997, decision of the Board of Veterans' Appeals is
VACATED for want of original jurisdiction to decide eligibility for direct payment of a withheld
contingency fee under § 5904(d), and the matter is REMANDED to the Board with directions to
dismiss the matter of direct-payment fee eligibility as referred to the Board by the RO. See Scates,
supra.
DATED: September 26, 2000 PER CURIAM.
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