Case: 22-1887 Document: 46 Page: 1 Filed: 03/25/2024
`
`
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`ALLEN GUMPENBERGER,
`Claimant-Appellant
`
`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2022-1887
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 20-4155, Judge Grant Jaquith,
`Judge Joseph L. Falvey, Jr, Judge Michael P. Allen.
`______________________
`
`Decided: March 25, 2024
`______________________
`
`KENNETH M. CARPENTER, Law Offices of Carpenter
`Chartered, Topeka, KS, argued for claimant-appellant.
`
` BRITTNEY M. WELCH, Commercial Litigation Branch,
`Civil Division, United States Department of Justice, Wash-
`ington, DC, argued for respondent-appellee. Also repre-
`sented by BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD,
`BORISLAV KUSHNIR, PATRICIA M. MCCARTHY; SHEKEBA
`MORRAD, CHRISTA A. SHRIBER, Office of General Counsel,
`
`

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`Case: 22-1887 Document: 46 Page: 2 Filed: 03/25/2024
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`2
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`GUMPENBERGER v. MCDONOUGH
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`United States Department of Veterans Affairs, Washing-
`ton, DC.
`
`______________________
`
`Before PROST, STOLL, and STARK, Circuit Judges.
`STOLL, Circuit Judge.
`This case is about attorney or agent fees. Allen
`Gumpenberger, an agent, seeks fees for his representation
`of veteran Arturo Valadez. Specifically, Mr. Gumpen-
`berger seeks fees for past-due benefits the Department of
`Veterans Affairs (VA) awarded Mr. Valadez for his trau-
`matic brain injury (TBI). The Board of Veterans’ Appeals
`denied Mr. Gumpenberger’s request
`for
`fees under
`38 U.S.C. § 5904(c)(1) (2012) and the United States Court
`of Appeals for Veterans Claims affirmed. Gumpenberger
`v. McDonough, 35 Vet. App. 195 (2022) (Decision). We
`agree with the Veterans Court’s interpretation of the fee
`statute, and thus affirm.
`BACKGROUND
`Mr. Valadez served honorably in the United States Ma-
`rine Corps and has received VA benefits for many condi-
`tions related to his service. In June 2010, Mr. Valadez and
`Mr. Gumpenberger entered into a fee agreement of “20 per-
`cent of all past due benefits awarded to [Mr. Valadez] as a
`result of winning [his] appeal.” J.A. 30. This agreement
`“relates to any and all services provided on [Mr. Valadez’s]
`behalf . . . with respect to an appeal . . . where a notice of
`disagreement was filed.” Id.
`In July 2010, Mr. Gumpenberger filed the fee agree-
`ment with the VA and sought to establish service connec-
`tion for TBI and entitlement to individual unemployability
`(TDIU) for Mr. Valadez. In April 2013, a VA regional office
`(RO) issued a rating decision granting Mr. Valadez a 70%
`disability rating for TBI, as well as several TBI residuals,
`and denying entitlement to TDIU. The RO denied TDIU
`because Mr. Valadez was “considered capable of obtaining
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`GUMPENBERGER v. MCDONOUGH
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`3
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`and maintaining gainful employment.” J.A. 53. In
`May 2013, the RO sent Mr. Valadez a letter confirming the
`70% disability rating for his service-connected TBI, grant-
`ing service connection for other conditions like migraine
`headaches, and denying service connection for his acquired
`psychiatric disorder to include major depressive disorder
`and depression with alcohol dependence.
`Mr. Gumpenberger then filed a notice of disagreement
`(NOD) for Mr. Valadez to appeal the denial of (1) entitle-
`ment to TDIU and (2) service connection for acquired psy-
`chiatric condition. In August 2014, the RO issued a
`statement of the case listing TDIU and the service connec-
`tion for acquired psychiatric condition as the only two is-
`sues on appeal. In October 2014, Mr. Gumpenberger
`completed Mr. Valadez’s appeal by filing a VA Form 9.
`Then, in December 2015, Mr. Gumpenberger wrote to the
`VA that Mr. Valadez is “seeking entitlement to [TDIU]
`from July 27, 2010, to resolve all issues on appeal.”
`J.A. 111. And because “the symptoms of psychiatric im-
`pairments greatly overlap symptoms of TBI, at this point
`[Mr. Gumpenberger is] withdrawing that issue from ap-
`peal.” J.A. 111.
`About seven months later, in July 2016, the VA in-
`formed Mr. Valadez, cc’ing Mr. Gumpenberger, that it was
`conducting a special review of TBI examinations in support
`of disability compensation claims for TBI. “This review re-
`vealed a number of initial TBI exams that were not con-
`ducted by a neurologist, psychiatrist, physiatrist, or
`neurosurgeon,” including Mr. Valadez’s initial TBI exam.
`J.A. 112. The VA therefore offered Mr. Valadez the option
`of undergoing a new TBI exam by an appropriate specialist.
`Under this option, the VA could reprocess Mr. Valadez’s
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`GUMPENBERGER v. MCDONOUGH
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`prior TBI claim. Mr. Valadez requested reprocessing un-
`der the VA’s special TBI review.1
`Subsequently, in September 2016, the VA assigned a
`100% schedular evaluation for Mr. Valadez’s TBI effective
`from July 27, 2010. The VA also granted Mr. Valadez spe-
`cial monthly compensation based on housebound criteria
`and eligibility to Dependents’ Educational Assistance, ef-
`fective from July 27, 2010. The evidence the VA considered
`was: (1) a VA 21-0820 Report of General Information, re-
`ceived on July 26, 2016; (2) a VA letter concerning
`Mr. Valadez’s exam, dated July 29, 2016; and (3) a DBQ
`NEURO TBI Initial, received on August 16, 2016.
`Mr. Gumpenberger sought fees from the Septem-
`ber 2016 rating decision that increased TBI rating from
`70% to 100%.
` The RO denied fees, noting that
`Mr. Gumpenberger specifically withdrew TBI
`from
`Mr. Valadez’s appeal and that Mr. Valadez’s TBI claim was
`reprocessed per Secretary of Veterans Affairs authority to
`reward equitable relief.2 The RO reasoned that the
`
`
`In the briefing before our court, Mr. Gumpenberger
`1
`states that he requested reprocessing of Mr. Valadez’s
`claim under the special TBI review. Appellant’s Br. 4 (cit-
`ing J.A. 114). The Veterans Court and Board, however, de-
`scribe the veteran as responding to the VA’s letter. J.A. 3
`(Veterans Court), 175 (Board). Also, during oral argument
`before the Veterans Court, Mr. Gumpenberger’s attorney
`could not point to anything that Mr. Gumpenberger did to
`assist Mr. Valadez in obtaining an increase in schedular
`rating for TBI. We recite the facts as stated by the Veter-
`ans Court.
`2 The Veterans Court recognized that Mr. Gumpen-
`berger “expressly withdrew the issue of the veteran’s psy-
`chiatric claim
`from
`the appeal, not TBI, which
`[Mr. Gumpenberger] did not include in his NOD.” Deci-
`sion, 35 Vet. App. at 200 n.15 (emphasis added).
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`GUMPENBERGER v. MCDONOUGH
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`“resultant favorable decision [was] not due to an appeal, so
`direct payment of
`fees
`[was] denied.”
` J.A. 136.
`Mr. Gumpenberger filed a NOD, explaining that the VA
`misinterpreted his withdrawal letter and that the issue of
`an increase in evaluation to total was still on appeal. The
`RO issued a statement of the case, continuing to deny enti-
`tlement to a fee. Mr. Gumpenberger then appealed to the
`Board.
`The Board concluded that fees were not warranted.
`The Board reasoned that no NOD was filed for TBI, the
`evaluation for TBI was “based on the VA’s own internal re-
`view of TBI examinations,” and a grant of a 100 % for TBI
`is not the same as a grant of TDIU in this case, which was
`what was sought in the NOD. J.A. 176. Mr. Gumpen-
`berger then appealed to the Veterans Court.
`The Veterans Court affirmed the Board’s decision. De-
`cision, 35 Vet. App. at 199. The court began by recognizing
`that both parties agree 38 U.S.C. § 5904(c)(1) (2012) ap-
`plies. Id. at 203. That statute states:
`(c)(1) Except as provided in paragraph (4), in con-
`nection with a proceeding before the Department
`with respect to benefits under laws administered
`by the Secretary, a fee may not be charged, al-
`lowed, or paid for services of agents and attorneys
`with respect to services provided before the date on
`which a notice of disagreement is filed with respect
`to the case. The limitation in the preceding sen-
`tence does not apply to fees charged, allowed, or
`paid for services provided with respect to proceed-
`ings before a court.
`§ 5904(c)(1) (2012) (emphases added). The Veterans Court
`analyzed the scope of a NOD under 38 U.S.C. § 7105 and
`38 C.F.R. § 20.201, general provisions governing NODs, be-
`fore turning to 38 U.S.C. § 5904(c)(1) and the phrase “with
`respect to the case.” Decision, 35 Vet. App. at 203–11.
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`GUMPENBERGER v. MCDONOUGH
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`In interpreting 38 U.S.C. § 5904(c)(1), the Veterans
`Court acknowledged that it was “not writing on a blank
`slate.” Id. at 208. It relied on a Veterans Court case, Cam-
`v. Shinseki, 26 Vet. App. 109
`(2012), aff’d,
`eron
`561 F. App’x 922 (Fed. Cir. 2014), as well as Carpenter
`v. Nicholson, 452 F.3d 1379 (Fed. Cir. 2006) and Jackson
`v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). Decision,
`35 Vet. App. at 208–09. The Veterans Court held that, in
`this matter, the schedular rating for TBI and TDIU are
`separate cases. The NOD Mr. Gumpenberger filed defined
`the “case” and, here, the award of a 100% schedular rating
`for TBI—which was the result of the VA’s independent re-
`view of TBI cases—was not related to the development of
`the appeal for TDIU. Id. at 209–11. Additionally, the Vet-
`erans Court “cannot help but note that [Mr. Gumpen-
`berger] fails to establish what, if any, services he provided
`as it relates to the award of the veteran’s TBI schedular
`rating.” Id. at 211.
`Mr. Gumpenberger appeals. We have jurisdiction un-
`der 38 U.S.C. § 7292(a),(c).
`DISCUSSION
`Our review is limited by statute. We may only review
`decisions of the Veterans Court related to the interpreta-
`tion of constitutional and statutory provisions. 38 U.S.C.
`§ 7292(c). Unless a constitutional issue is presented, we
`lack jurisdiction to review questions of fact or the applica-
`tion of law to fact. Id. § 7292(d)(2). We review legal deter-
`minations of the Veterans Court de novo. Blubaugh
`v. McDonald, 773 F.3d 1310, 1312 (Fed. Cir. 2014).
`The sole issue raised by Mr. Gumpenberger on appeal
`is whether the Veterans Court erred in its interpretation of
`the phrase “the case” in 38 U.S.C. § 5904(c)(1) (2012). Spe-
`cifically, whether the Veterans Court erred in interpreting
`§ 5904(c)(1) when it decided that Mr. Gumpenberger is not
`entitled to fees for Mr. Valadez’s increased schedular rat-
`ing of TBI because the NOD he filed did not encompass a
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`GUMPENBERGER v. MCDONOUGH
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`TBI rating claim and thus the TBI rating claim was not
`part of “the case.” We hold that the Veterans Court did not
`err.
`We begin with a brief history of restrictions on agents’
`and attorneys’ fees for VA benefits claims, as well as our
`caselaw. “Congress has thrice changed the triggering
`event for when attorneys’ fees may be charged, each time
`shifting the entry point for such fees—and thus a claim-
`ant’s ability to retain paid representation—earlier in the
`administrative appeals process.” Mil.-Veterans Advoc.
`(MVA) v. Sec’y of Veterans Affs., 7 F.4th 1110, 1135
`(Fed. Cir. 2021). Section 5904(c)(1)’s predecessor permit-
`ted attorneys’ fees only after a Board made a final decision
`in the case. See id. (citing 38 U.S.C. § 3404(c)(1) (1988)).
`In this way, the statute “intended to ‘preserve the non-ad-
`versarial initial benefits process, while providing the vet-
`eran with the assistance of an attorney when that process
`has failed and the veteran is faced with the complexities of
`appealing, reopening, and/or correcting prior adverse deci-
`sions.’” Id. at 1135–36 (quoting Carpenter, 452 F.3d
`at 1383).
`In 2006, Congress amended § 5904(c)(1) to shift the
`triggering event from a final Board decision to filing a
`NOD. See § 5904(c)(1) (2006). Thus, the amended statute
`expanded a claimant’s ability to retain representation of an
`unsatisfactory initial decision by the RO. See 152
`Cong. Rec. H8981, at H9018 (2006) (Rep. Miller) (“Unfor-
`tunately, the claims process has become very complex and
`can be very overwhelming to some claimants. This provi-
`sion would give veterans the option of hiring an attorney
`earlier in the process if the veterans believe they need as-
`sistance with their claim.”).
`Later, Congress shifted the triggering event for
`§ 5904(c)(1) to allow paid representation after a claimant
`receives “notice of the agency of original jurisdiction’s ini-
`tial decision.” See § 5904(c)(1) (2017). We have acknowl-
`edged that such “shift was part of a continuing
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`GUMPENBERGER v. MCDONOUGH
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`congressional effort to enlarge the scope of activities for
`which attorneys can receive compensation for assisting vet-
`erans.” MVA, 7 F.4th at 1136.
`At issue here is the 2012 version of § 5904(c)(1) which
`specifies the filing of a NOD as the triggering event for
`when fees may thereafter be awarded. Our caselaw on
`§ 5904(c)(1)’s predecessor—which has a later triggering
`event in the claims process—guides our understanding of
`the statutory language at issue here.
`In Carpenter, we addressed the meaning of the “in the
`case” in the context of the pre-2006 § 5904(c)(1). The VA
`originally awarded the veteran there 100% disability rat-
`ing for service-connected thrombophlebitis. Carpenter,
`452 F.3d at 1380. Later, the RO reduced the disability rat-
`ing and the veteran sought to reestablish the total disabil-
`ity rating on the ground that his condition prevented him
`from obtaining employment, i.e., he sought TDIU. Id. In
`1990, after various proceedings, the Board denied the vet-
`eran’s request and he sought representation by counsel,
`Mr. Kenneth M. Carpenter. Id. at 1380–81. Mr. Carpen-
`ter appealed the 1990 Board’s decision to the Veterans
`Court which vacated the Board’s decision for error. Id.
`at 1381. In 1993, on remand, the Board awarded the vet-
`eran 100% disability rating, but the RO assigned a later
`effective date. Id. Mr. Carpenter raised the issue of the
`effective date, eventually appealing the issue to the Board.
`Id. The Board accepted Mr. Carpenter’s position such that
`the veteran obtained the 100% disability rate retroactive to
`and continuous from the initial, earlier effective date. Id.
`The veteran obtained complete relief. Id.
`With respect to attorney’s fees, the Board informed
`Mr. Carpenter that he was not entitled to a fee for services
`performed prior to the later, 1993 Board decision establish-
`ing the earlier effective date as that was the “first . . . final
`decision in the case.” Id. at 1381–82. The Veterans Court
`agreed, rejecting the position that the “case” began when
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`GUMPENBERGER v. MCDONOUGH
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`the earlier, 1990 Board denied the veteran’s claim for 100%
`disability. We reversed.
`Specifically, we clarified that a veteran’s claim based
`on a specific disability does not become a different “case” at
`each stage of what are often lengthy and complex proceed-
`ings at the VA. Id. at 1384. We explained that “the degree
`of disability and the effective date of disability were issues
`within the same case, for the claim for benefits includes the
`issues emanating from the disability or injury that led to
`the claim.” Id. Thus, the claim for an earlier effective date
`was part of the same “case” seeking the increased disability
`rating. Id.
`A few years later, in Jackson, we again addressed the
`interpretation of “in the case” in pre-2006 § 5904(c)(1). The
`VA there granted the veteran a 40% rating for a lower back
`disorder and denied a supplemental claim seeking an in-
`creased rating and a new disability rating for a cervical
`spine disorder. Jackson, 587 F.3d at 1107–08. In 2000, af-
`ter the Board rejected the veteran’s requests, the veteran
`hired Mr. Francis M. Jackson to represent him. Id.
`at 1108. Mr. Jackson appealed to the Veterans Court,
`which vacated and remanded the Board’s opinion. On a
`subsequent remand, the veteran filed a separate claim for
`depressive disorder, which the RO eventually granted, as-
`signing a 30% disability rating. Id. Mr. Jackson then in-
`quired about qualifying for TDIU based on the depressive
`disorder. Id. The RO granted TDIU and Mr. Jackson
`sought fees for past-due benefits relating to TDIU. Id. The
`RO informed Mr. Jackson he was ineligible for those fees
`because the TDIU issue was not subject to a final Board
`decision, as required in § 5904(c). Id. The Board affirmed
`the RO’s decision, noting that at the time of the 2000 Board
`decision (the triggering event) the evidence of record did
`not support a finding of unemployability, a necessary ele-
`ment of TDIU. Id. The Veterans Court affirmed. We did
`too.
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`GUMPENBERGER v. MCDONOUGH
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`In Jackson, we stated: “This court has explained that
`a ‘case’ within the meaning of Section 5904(c) encompasses
`‘all potential claims raised by the evidence, applying all rel-
`evant laws and regulations, regardless of whether the
`claim is specifically labeled . . . .’” Id. at 1109 (quoting Rob-
`erson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001)). We
`explained that a TDIU claim may, under certain circum-
`stances, necessarily encompass a veteran’s claim for in-
`creased benefits even when not expressly raised. Id. But
`those circumstances were not present there. Because there
`was no evidence of unemployability before the Board’s 2000
`decision, i.e., no evidence to support a necessary part of a
`TDIU claim, TDIU was not part of the “case” at the time of
`the 2000 Board decision. Id. at 1109–10.
`With that backdrop, we return to the statute at issue
`here, § 5904(c)(1) (2012). Unlike the pre-2006 § 5904(c)(1)
`statute—for which the triggering event is “the date on
`which the [Board] first makes a final decision in the case”—
`the triggering event for the statute here is “the date on
`which a [NOD] is filed with respect to the case.” The trig-
`gering event changed, but our understanding of what con-
`stitutes “the case” has not. Both parties seem to agree that
`we could adopt the interpretations of the phrase “the case”
`in our pre-2006 § 5904(c)(1) caselaw.3 We agree and see no
`
`3 Mr. Gumpenberger refers to his interpretation of
`the “case” as consistent with the definition that encom-
`passes “all potential claims raised by the evidence, apply-
`ing all relevant laws and regulations, regardless of
`whether the claim is specifically labeled.” Appellant’s
`Br. 22 (quoting Carpenter, 452 F.3d at 1384). The govern-
`ment cites the same definition of a “case” in its briefing but
`as quoted in Jackson. Appellee’s Br. 15 (citing Jackson,
`587 F.3d at 1109); see also Oral Arg. at 19:10–19:38,
`https://oralarguments.cafc.uscourts.gov/default.aspx?fl=2
`2-1887_03062024.mp3 (government attorney stating that
`
`
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`GUMPENBERGER v. MCDONOUGH
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`reason to depart from our prior interpretation of “the case”
`given the similarities between pre-2006 § 5904(c)(1) and
`the version of the statute at issue. Thus, the issue before
`us is whether the Veterans Court’s interpretation of
`§ 5904(c)(1) (2012) is consistent with our caselaw interpret-
`ing “the case” for pre-2006 § 5904(c)(1). Mr. Gumpen-
`berger argues that the Veterans Court misinterpreted the
`statute “because the Veterans Court essentially abandoned
`the claimed understanding of the definition of the phrase
`‘with respect to the case.’” Appellant’s Br. 24. We disagree.
`The Veterans Court began its discussion of the mean-
`ing of “with respect to the case” in § 5904(c)(1) (2012) by
`recognizing that precedent provides context for how to in-
`terpret “the case.” Decision, 35 Vet. App. at 208. The Vet-
`erans Court recognized, for example, that its decision in
`Cameron held that “the case” would include “all potential
`claims raised by the evidence during the processing of the
`claim in question.” Id. at 208–09 (quoting Cameron, 26
`Vet. App. at 115). The Veterans Court also considered both
`Carpenter and Jackson. The Veterans Court also found
`that “the 100% schedular rating for TBI was the result of
`VA’s independent review of TBI cases and had nothing to
`do with the appeal of TDIU.” Id. at 209–10. We lack juris-
`diction to review this fact finding on appeal; nor have we
`been asked to review this fact finding.
`We read the Veterans Court as following the interpre-
`tation of “the case” as set forth in Jackson. In Jackson, the
`necessary evidence for TDIU (the claim the attorney sought
`fees for) was missing at the time of the trigger event (the
`Board decision), meaning TDIU was not raised by the evi-
`dence at the time that the increased benefits claim was
`raised to the Board. Thus, TDIU was not part of “the case”
`in Jackson. So too here: the VA’s independent review of
`
`
`our court could adopt the definition of the “case” as used in
`Jackson).
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`GUMPENBERGER v. MCDONOUGH
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`TBI cases and resultant new medical examination evidence
`(which resulted in an increased schedular rating for TBI)
`was missing at the time of the triggering event, the filing
`of the NOD. See Decision, 35 Vet. App. at 209–10 (“[T]he
`100% schedular rating for TBI was the result of VA’s inde-
`pendent review of TBI cases and had nothing to do with the
`appeal of TDIU.”); J.A. 115–22 (listing evidence the VA
`considered in the RO decision increasing the schedular rat-
`ing of TBI, including a “DBQ NEURO TBI Initial” received
`in 2016). The increased schedular TBI rating was there-
`fore not raised by the evidence at the time of the NOD and
`thus not part of “the case” for which Mr. Gumpenberger
`could be entitled to fees.
`We recognize that while both parties encourage us to
`adopt the same interpretation of “the case” for the 2012
`version of the fee statute as in our precedent. But each
`party nonetheless interprets “the case” and our caselaw dif-
`ferently.
`Mr. Gumpenberger argues that there need only be
`“some connection” between the increased rating for TBI
`and entitlement to TDIU for the claims to be part of the
`same “case.” Appellant’s Br. 24–25. Here, Mr. Gumpen-
`berger argues “some connection” exists because both an in-
`crease in TBI and entitlement to TDIU result in the same
`amount of compensation for Mr. Valadez. Id. This is not
`consistent with the interpretation of “the case” in our prec-
`edent. For example, in Jackson, we acknowledged that the
`TDIU claim was “directly related to and stemmed from” the
`veteran’s service connection claim, meaning there was
`some connection. Jackson, 587 F.3d at 1110. But we held,
`“[n]otwithstanding that fact,” Mr. Jackson was not entitled
`to attorney’s fees for the TDIU claim. Id.
`For its part, the government argues that whether two
`claims are part of “the case” depends on the claims’ eviden-
`tiary requirements. Appellee’s Br. 15. But Jackson fore-
`closed this argument. In Jackson we explained that “a
`TDIU claim may under certain circumstances necessarily
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`GUMPENBERGER v. MCDONOUGH
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`13
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`be encompassed in a veteran’s claim for increased benefits
`despite not being expressly raised,” but the circumstances
`there—with no evidence of a necessary component for
`TDIU—extinguished such possibility. Jackson, 587 F.3d
`at 1109–10 (emphasis added). The VA denied Mr. Jackson
`fees for the TDIU claim not because TDIU and the claim
`for increased benefits have different evidentiary stand-
`ards, but because the evidence required for a TDIU claim
`was not present at the time of the triggering event. See id.
`at 1111 (“Because no evidence of [the veteran]’s unemploy-
`ability was submitted before the Board’s July 2000 deci-
`sion[, the triggering event], the ‘case’ before the Board at
`that time did not include a claim for TDIU benefits and
`thus was not a compensable fee under Section 5904(c).”).
`We address the parties’ interpretations of “the case”
`and understanding of our caselaw to make clear that we do
`not read the Veterans Court’s opinion, which we affirm, as
`adopting either party’s interpretation. While dissecting
`portions of the Veterans Court’s opinion and reading it out
`of the context of its discussion of our caselaw might possi-
`bly support alternative interpretations of the meaning of
`“the case” for § 5904(c)(1) (2012), we must read the opinion
`as a whole. And reading the opinion as a whole and in con-
`text, we find the Veterans Court’s interpretation consistent
`with our pre-2006 § 5904(c)(1) caselaw. Accordingly, we af-
`firm.
`
`CONCLUSION
`We have considered Mr. Gumpenberger’s remaining
`arguments and find them unpersuasive. For the reasons
`above, we affirm.
`
`AFFIRMED
`COSTS
`
`No costs.
`
`