This morning the Federal Circuit issued two precedential opinions in a veterans case and a government contracts case, as well as two nonprecedential opinions in a tax case and a patent case. Here are the introductions to the opinions.

Gumpenberger v. Wilkie (Precedential)

Edward G. Graham, a veteran, has been receiving monthly disability compensation benefits from the Department 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 determined that Mr. Gumpenberger was entitled to a fee of $13,092.80, that is, 20% of the $65,464 that had been improperly recouped by the VA. Mr. Gumpenberger appealed, 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.

Kellogg Brown & Root Services, Inc. v. Secretary of the Army (Precedential)

Kellogg Brown and Root Services, Inc. (“KBR”) contracted with the government to provide trailers to house coalition personnel at military camps in Iraq. KBR claimed that the government breached the contract by failing to provide “force protection” to the trucks delivering the trailers to the military camps. KBR sought to recover payments made to its subcontractor, First Kuwaiti Co. of Kuwait (“Kuwaiti”), for costs caused by the government’s alleged breach. The administrative contracting officer in large part denied the claim, and KBR appealed to the Armed Services Board of Contract Appeals (“Board”). The Board found that KBR was not entitled to any additional recovery and denied its appeal.

We affirm the Board’s decision on the ground that the Board properly determined that KBR’s costs had not been shown to be reasonable, and we do not reach the question whether the government breached the “force protection” provision of the contract.

NEWMAN, Circuit Judge, dissenting.

With the expedition of United States forces to Iraq, the Army contracted with Kellogg Brown & Root Services, Inc. (“KBR”) for various services including the provision of prefabricated housing for thousands of troops. As described by the Armed Services Board of Contract Appeals (“ASBCA”), “soldiers slept wherever they could in . . . abandoned schools, . . . tents, vehicles, the ground, or any other place soldiers could put a sleeping bag.” ASBCA Op. at 2. By contract LOGCAP III, KBR would “provide accommodations and life support services to [the soldiers] and coalition forces in various locations in Iraq . . . to rapidly bed down the remainder of [the soldiers].” J.A. 291. This “Bed Down Mission” was a priority Army activity, scheduled to be completed before Christmas 2003, for reasons of both morale and military preparedness. The ASBCA reports that over 18,000 such living trailers were included, for multiple military locations. ASBCA Op. at 2.

KBR and subcontractor First Kuwaiti Trading Company (“FKTC”) designed, furnished, equipped, and brought to the Kuwait-Iraq border the contracted living trailers. However, delivery was often delayed due to unavailability of military force protection for convoys and installation. KBR paid an equitable adjustment to FKTC for this delay, but the ASBCA denied reimbursement to KBR, on the grounds that the government had not breached its obligation to provide force protection, and also that KBR had employed an incorrect methodology for calculating the equitable adjustment.

On KBR’s appeal, my colleagues on this panel, while correctly rejecting the ASBCA’s reasons for denying compensation as contrary to the contract, nonetheless err in implementing the correct standard. My colleagues hold that the correct standard is “reasonableness,” and while complaining about the absence of evidence and witnesses and argument on this standard, my colleagues make extensive findings on information that has not been presented, and decide the issue of reasonableness without participation of the parties.

Thus the panel majority now finds that our new standard is not met, and denies all reimbursement. From this flawed procedure and incorrect result, I respectfully dissent.

Schallmo v. United States (Nonprecedential)

In January 2018, Robert Schallmo and Bernadette Alabiso-Schallmo (“Appellants”) filed a petition with the United States Tax Court relating to tax years 1979 through 2016. S.A. 17–18. The Tax Court dismissed the case for lack of jurisdiction. S.A. 70–71. Subsequently, on February 8, 2019, Appellants filed a separate suit in the United States Court of Federal Claims (“Claims Court”) challenging the collection actions taken by the Internal Revenue Service (“IRS”) for tax years 2001, 2003–2006, 2010, and 2011, and seeking damages for such actions. Schallmo v. United States, 147 Fed. Cl. 361, 362 (2020). As to all tax years except 2010, the Claims Court dismissed for lack of jurisdiction. Id. at 363. And with respect to tax year 2010, the Claims Court concluded that Appellants’ claim was barred by I.R.C. § 6511(b)(2)(A). Id. The Claims Court further concluded that, “to the extent [Appellants] seek damages resulting from an unauthorized collection action, or for failure to release a lien, such claims are reserved exclusively for the District Court.” Id. at 363–64.

Appellants appealed the Claims Court’s decision to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(3). We affirm.

Shoffiett v. Goode (Nonprecedential)

Mike Shoffiett, Sr., appeals the decision of the United States District Court for the Western District of Louisiana, dismissing his complaint for lack of subject matter jurisdiction and failure to state a claim. Because we agree that Mr. Shoffiett does not state a claim upon which relief can be granted, we affirm.