Fee Agreement of William G. Smith in Case No. 90-58 — Chairman lacked authority to review fee agreements; dismissal for lack of a final Board decision

This case arose from a dispute over attorney William G. Smith’s fee agreement in the underlying Jones v. Derwinski matter. The Court held that the BVA Chairman had no statutory authority to review attorney-fee agreements for representation before VA or the Board on behalf of the Board. Because the purported fee disapproval was entered by the Chairman rather than the Board, the action was ultra vires and had no legal effect. As a result, there was no final Board decision from which Smith could appeal, and the purported appeal was dismissed.

The Court also explained that review of a Board fee-agreement decision in the Court must be initiated by a Notice of Appeal that complies with the Court’s rules and is filed by an aggrieved party. The opinion discusses the statutory scheme governing fee agreements under 38 U.S.C. §§ 5904 and 7263 and emphasizes that the Board itself, not the Chairman acting alone, is the entity authorized to review VA/BVA fee agreements. The decision is significant for defining the proper decisionmaker and appellate pathway in attorney-fee disputes.

A fee-agreement decision made only by the BVA Chairman, without statutory authority to act for the Board, is ultra vires and not a valid final Board decision subject to Court review.

Fee disputes must be decided by the Board itself, and appellate review depends on a valid final Board action and a proper Notice of Appeal.

It prevents improper fee-agreement adjudication by a single Board official and protects the jurisdictional structure Congress created for attorney-fee review. For advocates, it underscores the need to verify who issued the fee ruling and whether the ruling is actually appealable before filing in Court.

Treating a Chairman-issued fee ruling as a valid Board decision.

An attorney receives a letter from the BVA Chairman disapproving a fee agreement and tries to appeal that letter directly to the Court. Under this case, the appeal fails because the Chairman lacked authority to issue a reviewable Board decision.

Use this case to challenge purported Board actions taken by an unauthorized official and to argue dismissal or vacatur where the agency action is ultra vires. It is also useful when assessing whether a fee dispute is ripe for Court review and whether the correct appellate procedure was followed.

Manhattan Gen. Equip. Co. v. Commissioner, United States v. Larionoff, Dixon v. United States