Case: 19-1904 Document: 48 Page: 1 Filed: 09/01/2020
United States Court of Appeals
for the Federal Circuit
______________________
ALLEN GUMPENBERGER,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-1904
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-0092, Chief Judge Margaret C.
Bartley, Judge Coral Wong Pietsch, Judge Joseph L. Toth.
______________________
Decided: September 1, 2020
______________________
KENNETH DOJAQUEZ, Carpenter Chartered, Topeka,
KS, for claimant-appellant.
SHARI A. ROSE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
ETHAN P. DAVIS, ELIZABETH MARIE HOSFORD, ROBERT
EDWARD KIRSCHMAN, JR.; CHRISTA A. SHRIBER, JONATHAN
KRISCH, Office of General Counsel, United States Depart-
ment of Veterans Affairs, Washington, DC.
______________________
Case: 19-1904 Document: 48 Page: 2 Filed: 09/01/2020
2 GUMPENBERGER v. WILKIE
Before MOORE, LINN, and CHEN, Circuit Judges.
CHEN, Circuit Judge.
Edward G. Graham, a veteran, has been receiving
monthly disability compensation benefits from the Depart-
ment of Veterans Affairs (VA) since December 2001. In
2009, however, the VA determined that it had overpaid
Mr. Graham $199,158.70. To collect on that overpayment,
the VA began withholding a portion of Mr. Graham’s
monthly disability benefits, starting in August 2009.
Mr. Graham hired Allen Gumpenberger to represent him
in the appeal of that overpayment debt determination,
which led to the successful invalidation of the debt. By
2013, when the VA stopped withholding compensation
from Mr. Graham’s monthly benefits, the VA had recouped
$65,464.
Pursuant to a direct-pay, contingency fee agreement
between Mr. Graham and Mr. Gumpenberger, the VA de-
termined that Mr. Gumpenberger was entitled to a fee of
$13,092.80, that is, 20% of the $65,464 that had been im-
properly recouped by the VA. Mr. Gumpenberger ap-
pealed, believing that his fee should be 20% of the entire
debt that was invalidated. The U.S. Court of Appeals for
Veterans Claims (Veterans Court), affirmed the decision of
the Board of Veterans’ Appeals (Board) finding that
Mr. Gumpenberger is entitled to 20% of the amount that
had been improperly withheld from Mr. Graham’s monthly
benefits, and not 20% of the invalidated debt. The relevant
statutory language for direct-pay fee agreements permits a
veteran’s representative to receive “20 percent of the total
amount of any past-due benefits awarded on the basis of
the claim.” 38 U.S.C. § 5904(d)(1). Because we agree with
the Veterans Court that the total amount of the invalidated
debt does not constitute the “past-due benefits awarded” to
Mr. Gumpenberger’s client, we affirm.
Case: 19-1904 Document: 48 Page: 3 Filed: 09/01/2020
GUMPENBERGER v. WILKIE 3
BACKGROUND
Edward G. Graham served on active duty in the U.S.
Marine Corps from 1967 to 1970 and has been receiving
disability compensation benefits since December 2001. In
January 2009, the VA regional office (RO) informed
Mr. Graham that law enforcement authorities had identi-
fied him as a fugitive felon and the subject of an outstand-
ing warrant issued in 1992. That warrant was withdrawn
in February 2009. In May 2009, the RO issued a rating
decision that retroactively discontinued Mr. Graham’s
compensation from December 2001 through February
2009, due to his then-fugitive felon status. Pursuant to the
RO’s decision, the VA informed Mr. Graham that he had
been improperly paid $199,158.70 and that his monthly
compensation would be partially withheld, beginning in
August 2009, in order to pay back the debt. In June 2009,
Mr. Graham appealed the debt determination.
In January 2011, Mr. Graham appointed Mr. Gumpen-
berger as his representative in the appeal. Mr. Gumpen-
berger and Mr. Graham signed an agreement stating that
Mr. Gumpenberger’s fee would be “20 percent of all past
due benefits awarded to [Mr. Graham] as a result of win-
ning [his] appeal as provided in 38 C.F.R. § 14.636.” J.A.
46. In September 2013, the Board reversed the RO’s debt
ruling, finding that Mr. Graham was not a fugitive felon for
VA purposes because he had never been aware of the out-
standing warrant. J.A. 3. As of the Board’s decision, the
VA had recouped $65,464 from Mr. Graham’s monthly ben-
efits.
In April 2014, the RO determined that Mr. Gumpen-
berger was entitled to a fee of $13,092.80—20% of the
$65,464 that had been erroneously withheld from Mr. Gra-
ham’s past benefits. J.A. 36–38. The RO noted that alt-
hough the total debt invalidated was $199,158.70, the past-
due benefit, per 38 U.S.C. § 5904(d)(1), being awarded to
Mr. Graham by the Board’s decision was $65,464.
Id.
Case: 19-1904 Document: 48 Page: 4 Filed: 09/01/2020
4 GUMPENBERGER v. WILKIE
Mr. Gumpenberger appealed the RO’s fee determination to
the Board and argued that he was entitled to 20% of the
total invalidated debt. J.A. 39. In September 2016, the
Board rejected that argument, agreeing with the RO’s fee
determination. J.A. 44–45. In February 2019, the Veter-
ans Court affirmed the Board’s decision. J.A. 1. The Vet-
erans Court concluded that attorney’s fees can only be paid,
pursuant to a direct-pay fee agreement under § 5904(d)(1),
out of benefits that were past-due, meaning unpaid or owed
to the claimant.
Id. at 8.
Mr. Gumpenberger timely appealed to our court. We
have jurisdiction pursuant to 38 U.S.C. § 7292(c).
DISCUSSION
We have jurisdiction to review a decision of the Veter-
ans Court where a party challenges the interpretation or
validity of a statute or regulation. 38 U.S.C. § 7292(c). We
review such legal determinations of the Veterans Court de
novo. Prenzler v. Derwinski,
928 F.2d 392, 393 (Fed. Cir.
1991).
Section 5904 establishes a framework for attorneys or
agents to represent benefits claimants at the VA on a con-
tingent fee basis while also authorizing the VA to pay any
fee owed to the attorney or agent “directly from any past-
due benefits awarded on the basis of the claim.” 38 U.S.C.
§ 5904(d)(2)(A)(i). At issue in this case is the provision that
states the fees to be paid to an agent or attorney pursuant
to a direct-pay fee agreement “may not exceed 20 percent
of the total amount of any past-due benefits awarded on the
basis of the claim.” 38 U.S.C. § 5904(d)(1). In particular,
this case requires us to determine the meaning of “the total
amount of any past-due benefits awarded on the basis of
the claim,” in the context of the invalidation of a debt the
VA required a veteran to pay through the reduction of his
monthly compensation benefits.
Case: 19-1904 Document: 48 Page: 5 Filed: 09/01/2020
GUMPENBERGER v. WILKIE 5
Mr. Gumpenberger argues that the statute should be
interpreted as allowing his fee to be based on the total in-
validated debt because the benefit Mr. Graham received
through Mr. Gumpenberger’s successful representation is
the cancellation of the entire debt. Appellant’s Br. at 10–
11. The VA, for its part, argues that the CAVC correctly
interpreted § 5904 by basing Mr. Gumpenberger’s fee on a
percentage of only those benefits to which the claimant was
entitled but were unpaid or owed to the claimant, and
Mr. Gumpenberger was therefore not entitled to 20% of the
entire invalidated debt; only a portion of that entire
amount had been withheld from Mr. Graham’s monthly
benefits before the initial debt determination had been
overruled. Appellee’s Br. at 5. For the reasons that follow,
we agree with the VA and Veterans Court and find the lan-
guage of § 5904—“past-due benefits awarded”—unambigu-
ously refers to benefits unpaid or owed to the veteran.
When interpreting a statute, we “begin with the lan-
guage employed by Congress.” Engine Mfrs. Ass’n v. S.
Coast Air Quality Mgmt. Dist.,
541 U.S. 246, 252 (2004) (in-
ternal quotations and citation omitted). A court interpret-
ing the statute “presume[s] that Congress intended to give
those words their plain and ordinary meanings.” Gazelle
v. Shulkin,
868 F.3d 1006, 1010–11 (Fed. Cir. 2017). “This
ordinary meaning may be informed through the use of dic-
tionaries.”
Id. at 1011. Ballentine’s Law Dictionary de-
fines “past-due” as “overdue.” Past Due, BALLENTINE’S LAW
DICTIONARY (3rd ed. 1969); see Past-Due, OXFORD ENGLISH
DICTIONARY (3rd ed. 2005) (same). Merriam-Webster Dic-
tionary defines “past-due” as “overdue.” Past-Due,
MERRIAM-WEBSTER DICTIONARY (3rd ed. 2002). Black’s
Law Dictionary defines “due” as “owing or payable; consti-
tuting a debt.” Past-Due, BLACK’S LAW DICTIONARY (11th
ed. 2019). Therefore, the plain meaning of “past-due” is
“unpaid or owed,” and “past-due benefits awarded on the
basis of the claim” refers to the amount of benefits unpaid
or owed to the claimant when his claim is granted.
Case: 19-1904 Document: 48 Page: 6 Filed: 09/01/2020
6 GUMPENBERGER v. WILKIE
Mr. Gumpenberger’s position is that the “past-due ben-
efits awarded” in an action challenging an overpayment
debt is the total amount of the overpayment debt itself that
was invalidated, even when the VA had collected only a
portion of that now-overturned debt from the veteran. Alt-
hough we agree with Mr. Gumpenberger that his veteran
client was relieved of having to pay the entire $199,158.70
debt, Mr. Gumpenberger’s proposed interpretation inap-
propriately reads out of the statute the term “past-due.”
TRW Inc. v. Andrews,
534 U.S. 19, 31 (2001) (“It is ‘a car-
dinal principle of statutory construction’ that ‘a statute
ought, upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superflu-
ous, void, or insignificant.’” (quoting Duncan v. Walker,
533 U.S. 167, 174 (2001)). As the Veterans Court correctly
observed, the “invalidation did not result in a past-due ben-
efit equal to the total amount of the overpayment debt.”
J.A. 10 (emphasis in original). Rather, the unpaid or owed
amount due to Mr. Graham was the amount that had been
erroneously withheld from his monthly benefits until the
debt had been overturned—$65,464.
Our statutory interpretation is also consistent with our
prior decisions. We have previously considered, for differ-
ent circumstances, the meaning of the statutory phrase
“the total amount of any past-due benefits awarded on the
basis of the claim.” See Snyder v. Nicholson,
489 F.3d 1213
(Fed. Cir. 2007). Although the factual context was differ-
ent, we nonetheless explained in Snyder that ‘[a]ny com-
pensation not paid to the claimant in a given month
becomes a “past-due benefit[].”
Id. at 1218. Furthermore,
we held that “the total amount of any past-due benefits
awarded on the basis of the claim is the sum of each
month’s unpaid compensation—as determined by the
claimant’s disability rating—beginning on the effective
date and continuing through the date of the award.”
Id.
(internal quotations omitted). We thus equated the “total
amount of any past-due benefit awarded on the basis of the
Case: 19-1904 Document: 48 Page: 7 Filed: 09/01/2020
GUMPENBERGER v. WILKIE 7
claim” with the amount of benefits that the veteran was
already entitled to receive but was unpaid.
Therefore, in this case, we find the past-due benefit
awarded in Mr. Gumpenberger’s successful representation
of Mr. Graham is the amount that was owed or unpaid to
the veteran as a result of improper withholdings of
Mr. Graham’s benefits by the VA. As of December 2001,
Mr. Graham’s disability rating was set by the VA. Per
38 U.S.C. § 5314 (“Indebtedness Offsets”), Mr. Graham’s
monthly disability benefits payment was withheld by the
VA in order to recoup a debt that was later invalidated.
Once the debt was invalidated, Mr. Graham was owed the
amount that the VA had improperly withheld from
Mr. Graham’s monthly disability payments, i.e., the
amount of Mr. Graham’s benefits that were “past due.”
Mr. Gumpenberger’s contrary view conflates the cancella-
tion of the VA’s initial debt determination with the debt or
award owed to Mr. Graham after Mr. Gumpenberger’s suc-
cessful appeal. Beyond the amount improperly recouped
by the VA, the VA at no point in time owed any other
amount to Mr. Graham.
CONCLUSION
We have considered Mr. Gumpenberger’s remaining
arguments and find them unpersuasive. We therefore
agree with the Veterans Court that Mr. Gumpenberger was
entitled to fees in the amount of $13,092.80 (20% of
$65,464) because that was the amount past-due benefit
that was unpaid or owed to Mr. Graham after
Mr. Gumpenberger’s successful advocacy. Accordingly, the
appeal from the final judgment of the Veterans Court is
AFFIRMED
COSTS
No costs.
