James J. Perciavalle v. Denis McDonough, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAMES J. PERCIAVALLE,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1423
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-8597, Judge Amanda L.
Meredith.
______________________
Decided: December 19, 2024
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, for claimant-appellant.
ROBERT R. KIEPURA, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also
represented by BRIAN M. BOYNTON, ERIC P. BRUSKIN,
PATRICIA M. MCCARTHY; MEGHAN ALPHONSO, CHRISTA A.
Case: 23-1423 Document: 37 Page: 1 Filed: 12/19/2024

-- 1 of 6 --

PERCIAVALLE v. MCDONOUGH 2
SHRIBER, Office of General Counsel, United States
Department of Veterans Affairs. Washington, DC.
______________________
Before DYK, CHEN, and STOLL, Circuit Judges.
PER CURIAM.
James J. Perciavalle appeals the decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) remanding his action to the Board of Veterans’
Appeals (“the Board”). Because the Veterans Court’s non-
final remand order does not fall within the limited class of
orders appropriate for appellate review under Williams
v. Principi, 275 F.3d 1361 (Fed. Cir. 2002), we dismiss.
BACKGROUND
Mr. Perciavalle represented veteran John Abram while
Mr. Abram pursued an earlier effective date for already
service-connected benefits from the United States
Department of Veterans Affairs (“VA”). The VA initially
granted Mr. Abram an earlier effective date but, in a
January 2019 decision, it notified Mr. Perciavalle that it
would not withhold his fees from the amount of past-due
benefits awarded because he had not filed the requisite
direct-pay fee agreement with the agency of original
jurisdiction within 30 days of its execution. The following
month, Mr. Perciavalle filed a notice of disagreement and
subsequently perfected an appeal to the Board. He also
submitted a signed fee agreement dated April 2020. In
September 2020, the Board dismissed as moot
Mr. Perciavalle’s appeal of entitlement to agent fees based
on past-due benefits granted. Citing a June 2020 decision
severing Mr. Abram’s award of an earlier effective date and
reestablishing the original effective date (a decision that
Mr. Abram appealed), the Board reasoned that “[a]s there
was no award of past-due benefits on which agent fees
could be based, the appeal is moot.” J.A. 132.
Case: 23-1423 Document: 37 Page: 2 Filed: 12/19/2024

-- 2 of 6 --

PERCIAVALLE v. MCDONOUGH 3
Mr. Perciavalle appealed the Board’s dismissal of his
fee claim to the Veterans Court, arguing “the Board’s
decision to dismiss the appeal was void ab initio and should
be reversed.” Perciavalle v. McDonough, No. 20-8597,
2022 WL 2093051, at *2 (Vet. App. June 10, 2022). He
asserted that: (1) the June 2020 decision was unlawful;
and (2) even if that decision was valid, the Board should
defer addressing his appeal on fees until after the appeal
on the severing of Mr. Abram’s earlier effective date is final.
At the Veterans Court, the Secretary “conced[ed] that
remand [rather than affirmance] of the agent fee claim on
appeal is warranted because it is inextricably intertwined
with [Mr. Abram’s] appeal.” Id.
The Veterans Court determined that “the Board
provided inadequate reasons or bases” for its decision,
explaining that the Board failed to (1) “acknowledge, as
conceded by the parties, that [Mr. Abram’s] appeal” of the
June 2020 decision was still pending; (2) explain why the
June 2020 “decision would be controlling for purposes of
determining whether ‘past-due benefits [were] awarded on
the basis of the claim’”; and (3) consider the VA’s statement
that it “would not seek recoupment of any overpayment.”
Id. at *3 (alteration original, citation omitted). The
Veterans Court explained that because of “these
deficiencies in the Board’s reasons or bases, the Court’s
review of the Board’s finding that there was no award of
past-due benefits, and its decision to dismiss based on that
finding, is frustrated.” Id. Therefore, the Veterans Court
“vacate[d] the Board decision and remand[ed] the matter
for further proceedings.” Id.
Mr. Perciavalle appeals, asserting that “[t]he Veterans
Court decision [he] appealed from is final.” Appellant’s
Br. 1.
DISCUSSION
“[W]e have generally declined to review non-final
orders of the Veterans Court, and we have held that
Case: 23-1423 Document: 37 Page: 3 Filed: 12/19/2024

-- 3 of 6 --

PERCIAVALLE v. MCDONOUGH 4
remand orders from the Veterans Court ordinarily are 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 to this rule. We will
depart from the strict rule of finality when the appellant
establishes that:
(1) there must have been a clear and final decision
of a legal issue that
(a) is separate from the remand
proceedings,
(b) will directly govern the remand
proceedings or,
(c) if reversed by this court, would render
the remand proceedings unnecessary;
(2) the resolution of the legal issues must adversely
affect the party seeking review; and,
(3) there must be a substantial risk that the
decision would not survive a remand, i.e., that the
remand proceeding may moot the issue.
Williams, 275 F.3d at 1364 (footnotes omitted). The
appellant must satisfy all three conditions for the exception
to apply. See id.
The Veterans Court’s remand decision here does not
satisfy the first Williams condition because there is no
clear and final decision of a legal issue when, as here, the
Veterans Court merely determines that the Board provided
inadequate reasons or bases for its actions. Id. at 1365
(“[T]here has been no clear and final decision on a legal
issue; the Court of Appeals for Veterans Claims has merely
remanded for further consideration of the issues by the
Board as a predicate to further review of those issues by
the Court of Appeals for Veterans Claims.”); Ebel
v. Shinseki, 673 F.3d 1337, 1342 (Fed. Cir. 2012) (holding
there is no clear and final decision on a legal issue where
Case: 23-1423 Document: 37 Page: 4 Filed: 12/19/2024

-- 4 of 6 --

PERCIAVALLE v. MCDONOUGH 5
the “the Veterans Court evaluated the Board’s factual
determinations and remanded because the ‘Board did not
adequately consider the evidence of record’ such that the
Board’s ‘statements of reasons and bases [were] inadequate
to facilitate review’” (alteration in original, citation
omitted)). Nevertheless, Mr. Perciavalle argues that the
Veterans Court’s remand decision is “a clear and final
decision of a legal issue” because “the Veterans Court did
not resolve” the question of law he raised—whether the
Board’s decision “was void ab initio.” Appellant’s Br. 6–7.
Quoting Caesar v. West, 195 F.3d 1373, 1375 (Fed. Cir.
1999) (per curiam), he contends “that a decision is ‘clear’
and ‘final’ despite nominally being a remand where the
issue raised by the appellant ‘was obviously not resolved by
the remand decision.’” Appellant’s Br. 7. But Caesar does
not support Mr. Perciavalle’s argument. In Caesar, we
concluded that “[b]ecause Caesar has not appealed from a
final judgment, we lack jurisdiction over the case, and
therefore must dismiss his appeal.” 195 F.3d at 1375.
Although we acknowledged that the remand decision failed
to resolve the issue raised on appeal, we explained that the
issue was “plainly deeply intertwined with Caesar’s
continuing effort to gain compensation for his wartime
injuries” and that “nothing in the Court of Appeals for
Veterans Claims’ decision prevents Caesar from presenting
his . . . arguments at some later stage of the dispute, if
necessary.” Id. Caesar simply does not support
Mr. Perciavalle’s argument that an issue not resolved by a
remand decision satisfies the clear and final decision of a
legal issue requirement.
For this court to have jurisdiction over a non-final
remand order, Mr. Perciavalle must meet each of the
Williams conditions. Because Mr. Perciavalle has not met
the first Williams condition, we dismiss his appeal for lack
of jurisdiction.
Case: 23-1423 Document: 37 Page: 5 Filed: 12/19/2024

-- 5 of 6 --

PERCIAVALLE v. MCDONOUGH 6
CONCLUSION
We have considered Mr. Perciavalle’s remaining
arguments and do not find them persuasive. For the
foregoing reasons, this appeal is dismissed.
DISMISSED
COSTS
No costs.
Case: 23-1423 Document: 37 Page: 6 Filed: 12/19/2024

-- 6 of 6 --