[00:00:00] Speaker 03:
Our next case is John Cavasciuti, if I've pronounced it correctly, versus the Secretary of Veterans Affairs, 2022-1531.

[00:00:10] Speaker 03:
Mr. Kolker, when you're ready.

[00:00:15] Speaker 01:
Good morning and may it please the court.

[00:00:17] Speaker 01:
Joseph Kolker on behalf of John F. Cavasciuti.

[00:00:20] Speaker 01:
This court should reverse, as a matter of law, the determination by the Veterans Court that Mr. Cavasciuti is not a prevailing party.

[00:00:28] Speaker 01:
I'd like to focus on two reasons why this court should reverse.

[00:00:32] Speaker 01:
First, Mr. Cavasciuti is a prevailing party because the uncontested facts of this case satisfy at least three factors that the Supreme Court and Buchanan identified as particularly relevant.

[00:00:44] Speaker 01:
The secretary here admitted that he had made a clear and unmistakable error.

[00:00:48] Speaker 01:
The secretary also acknowledged that he was correcting that error as he was required to do, both of which show a lack of voluntariness in his actions.

[00:00:57] Speaker 01:
And third, the terms of the relief that Mr. Kabashuti obtained were memorialized in the dismissal order.

[00:01:04] Speaker 01:
I will discuss each of those in greater detail.

[00:01:06] Speaker 01:
But the second reason that Mr. Kabashuti is a prevailing party is that the Veterans Court's dismissal order materially changed the party's legal relationship going forward by locking the secretary in to providing the relief that Mr. Kabashuti had sought in the proceedings before that court.

[00:01:23] Speaker 03:
I thought it was a settlement discussion that changed, that enabled him to get what he was looking for.

[00:01:31] Speaker 01:
Your Honor, there were settlement discussions.

[00:01:35] Speaker 01:
In this case, after some initial settlement discussions, the Secretary did not communicate further with Mr. Cavasciuti and then came back with a new decision by the regional office on two occasions, the second of which occurred after the settlement discussions, and then moved the Veterans Court to dismiss this case as moot.

[00:01:59] Speaker 01:
It was only

[00:02:00] Speaker 01:
we contend with the order of dismissal that the secretary became bound not to renege on the litigation statements the secretary made in seeking mootness dismissal that the April 2020 decision by the regional office had been fully overridden and was effectively clear and unmistakable error.

[00:02:23] Speaker 04:
Mr. Colter, this is Joe Toronto.

[00:02:26] Speaker 04:
I think I understand your

[00:02:31] Speaker 04:
coherent legal argument for why legal relations were changed in the circumstances here with the at least double representation by the secretary to the Veterans Court about correctness suggesting requirements, which then led to a dismissal for mootness and that correctness

[00:03:01] Speaker 04:
uh... representation logically may well have something to do with uh... the reason there was no problem uh... in meeting the fairly high standard for voluntary cessation uh... so that it took up on the top of the theory i think i don't know uh... and and echoes certain considerations that are discussed in a canon although i'm not quite

[00:03:31] Speaker 04:
The question is this, are there any judicial opinions from anywhere, this court, any court, that do rely even expressly on a legal representation by a defendant when dismissing from mootness to find that the plaintiff is a prevailing party?

[00:03:51] Speaker 04:
I don't remember seeing anything in your brief on that scenario, which doesn't feel to me like it ought to be

[00:04:01] Speaker 04:
to have occurred for the first time in the last 20 years in this case.

[00:04:06] Speaker 04:
It seems like it ought to have occurred in earlier cases and therefore there ought to be some judicial authority addressing it from elsewhere.

[00:04:19] Speaker 01:
Your honor, I have not found a case in which a court has ruled either way on the specific question that you're asking, which is whether the judicial estoppel effect of a mutinous dismissal establishes prevailing party status.

[00:04:31] Speaker 01:
I have also not found a case in which this was rejected.

[00:04:37] Speaker 01:
I think that the binding authority that we are primarily relying on for this point is the Monsanto case, the decision from this court already versus Nike for the Supreme Court, both of which I think make clear and have binding effect.

[00:04:50] Speaker 04:
Let me just try to be a little clearer.

[00:04:55] Speaker 04:
For purposes of this question, I think you have a good deposition

[00:05:03] Speaker 04:
What I'm trying to understand is whether that ought to be enough to come to a different conclusion from the conclusion that the Supreme Court set forth in Buchanan.

[00:05:19] Speaker 04:
Because there's an obvious, I think it's obvious anyway, to me, a worry that this rationale is one that could easily, very substantially,

[00:05:33] Speaker 04:
into the reach of Buchanan in a way that would suggest evasion.

[00:05:39] Speaker 01:
Thank you, Your Honor.

[00:05:40] Speaker 01:
So I think that one of the things in this case that we have is not just the claim of judicial estoppel, but also the other Buchanan factors that we've identified, which I think- Yeah, I don't really think that they're factors.

[00:05:56] Speaker 01:
Well, Your Honor, if you look at Justice Scalia's concurrence in Buchanan, he actually said that admission of liability alone was the equivalent of a judgment on the merits.

[00:06:04] Speaker 01:
And I think while that is not binding, it is persuasive in suggesting what the Supreme Court understood to be the sort of baseline in writing Buchanan.

[00:06:16] Speaker 01:
I think that- I'm sorry.

[00:06:18] Speaker 01:
Do you have a specific page said on the Scalia concurrence on that particular point?

[00:06:24] Speaker 04:
I did read it this morning, but I don't have that name on it.

[00:06:28] Speaker 01:
I will get that for your honor in just one moment.

[00:06:31] Speaker 01:
Can you use the word admission?

[00:06:33] Speaker 01:
I will read you the precise language, your honor.

[00:06:36] Speaker 01:
Apologies, your honor.

[00:06:37] Speaker 01:
This is at page 615 of the United States reports.

[00:06:43] Speaker 01:
This is a little parenthetical.

[00:06:46] Speaker 01:
So the sentence I'm looking at is,

[00:06:49] Speaker 01:
meant the party that wins the suit or obtains a finding or an admission of liability.

[00:06:54] Speaker 01:
So yes, if that's what you're referring to as the parenthetical, yes, Your Honor.

[00:07:00] Speaker 01:
So I think there are a number of other.

[00:07:02] Speaker 01:
So I think that the presence of those factors that we've identified is a limiting factor should the court be concerned by any sort of floodgates concerns in this case.

[00:07:12] Speaker 01:
A reversal here would not require the court to determine that judicial estoppel alone would

[00:07:19] Speaker 01:
lead to prevailing party status because these other factors are present here as well.

[00:07:23] Speaker 01:
I think there is also no reason for concern that future veterans would, for example, withhold consent to mootness dismissals in order to generate fee claims.

[00:07:33] Speaker 01:
I think for both practical and legal reasons.

[00:07:36] Speaker 01:
I think the practical reason is that typically if a veteran is being given the relief that they sought, there's just very little incentive to stick around and see what happens in the case, which could end up going a different way just for the sake of trying to preserve a fee claim.

[00:07:54] Speaker 01:
I think as a legal matter, I'm not sure that that scenario in the run of cases would meet the judicial estoppel test.

[00:08:02] Speaker 01:
Because here, we're actually relying on the delta between the relief that was actually granted versus the Secretary's representations to the Veterans Court regarding the fact that the April 2020 decision had been basically completely overridden, which is not something that you see on the face of the regional office's decisions, but is a litigation statement that the Secretary made to the Veterans Court.

[00:08:29] Speaker 01:
That delta is the reason, is a big part of the reason that we would be prejudiced by any reversal by the Secretary in the future.

[00:08:37] Speaker 01:
Can you make that concrete for me?

[00:08:40] Speaker 01:
Yes, Your Honor.

[00:08:41] Speaker 01:
So, for example, the December 2020 decision does not say that the April 2020 decision committed clear and unmistakable error.

[00:08:52] Speaker 04:
I don't view that as concrete.

[00:08:56] Speaker 04:
I want to understand what concrete

[00:08:58] Speaker 04:
uh... consequence hollowed from the difference between from from the uh... what you call it that uh... i think that i think that i think that we're part worked in the original apart but i don't know what those words need in terms of relief granted or staples or stability of the relief or something i'd still don't understand what happened

[00:09:24] Speaker 01:
The December 2020 and January 2021 decisions by the regional office have appeared to have the effect of reversing the April 2020 decision.

[00:09:32] Speaker 01:
They nowhere say that they are, that that decision no longer has effect going forward.

[00:09:38] Speaker 01:
And so I think the pretty concrete concern that Mr. Kabashuti has in this case, you know, given the sequence events is that without any

[00:09:47] Speaker 01:
binding representation that the April 2020 decision has been overturned or committed clear and unmistakable error.

[00:09:56] Speaker 01:
That decision is still on the books and it would a future... I think I'm not making myself clear.

[00:10:02] Speaker 04:
Your last five sentences are still only about words and not about concrete

[00:10:07] Speaker 04:
You get a certain amount of money for a certain period of time or not.

[00:10:11] Speaker 04:
They're not yet concrete in my mind.

[00:10:12] Speaker 04:
I could be wrong about that, but I don't understand that you have yet explained why it matters whether the April decision is, quote unquote, on the books.

[00:10:22] Speaker 01:
I think that one way in which the question of whether the April 2020 decision is on the books affects a, for example, financial interest is Mr. Cavasciuti's ongoing appeal of the determination of TDIU mootness for the period of 2015 to 2019.

[00:10:40] Speaker 01:
Um, and specific, you know, one of the concerns that Mr. Cavasciuti identified in opposing the mootness dismissal requested by the secretary was the concern that, uh, adjudicators within the agency making that determination would look at the April 2020 decision and give a court at any weight whatsoever.

[00:11:00] Speaker 01:
Um, and so that, that is the closest that I have for your honor's question regarding, um, tying this specifically to a financial interest.

[00:11:10] Speaker 03:
Counselor, you're into your battle time.

[00:11:11] Speaker 03:
You can save it or continue.

[00:11:14] Speaker 01:
Thank you, Your Honor.

[00:11:15] Speaker 01:
We've asked the court to reverse, and with that, I would reserve the remainder of my time.

[00:11:20] Speaker 01:
Thank you.

[00:11:23] Speaker 03:
Mr. Hillman.

[00:11:24] Speaker 02:
Good morning, Your Honors, and may it please the court.

[00:11:26] Speaker 02:
This court should affirm the Veterans Court's denial of Mr. Cavasciuti's fee petition because he cannot satisfy the prevailing party standard here.

[00:11:35] Speaker 02:
As the Supreme Court explained in Buchanan, a defendant's voluntary change in conduct

[00:11:40] Speaker 02:
although perhaps accomplishing what plaintiffs sought to achieve with the lawsuit lacks the necessary judicial imprimatur on the change.

[00:11:48] Speaker 02:
And that is entirely the case here.

[00:11:50] Speaker 02:
The secretary took voluntary action to grant Mr. Cavasciuti the entirety of the relief that Mr. Cavasciuti sought.

[00:12:08] Speaker 04:
statements that were confessions of legal requirement that is, I think, the entire basis for the assertion on the other side that this is not simply voluntary action.

[00:12:22] Speaker 02:
Well, I think Judge Stronto, their assertion that it's not simply voluntary action hinges on this judicial estoppel argument, which essentially seeks to reanimate the catalyst theory that the Supreme Court rejected in Buckham.

[00:12:36] Speaker 02:
So they say that the secretary made certain representations, and those are different somehow than the actions that the secretary took.

[00:12:42] Speaker 02:
But the Veterans Court here dismissed for lack of case or controversy because of the secretary's actions.

[00:12:50] Speaker 02:
The action was to grant Mr. Cavasciuti the relief that he sought, and this is embodied in a board opinion.

[00:12:57] Speaker 04:
I'm sorry.

[00:12:59] Speaker 04:
In the ordinary course, and I think Buchanan is clear about this, voluntary cessation

[00:13:06] Speaker 04:
uh... present a particular herbal or dismissal for movement uh... and i guess i took the essence of the position on the other side to feed that uh... the better court necessarily uh... found that all surmounted uh... and why might have found that and that's because it's not just that the defendant here the government said we're going to give you

[00:13:35] Speaker 04:
what you want, but because it said, we are legally required to do that.

[00:13:40] Speaker 04:
And that would have forward-looking effects of making it distinctly unlikely that the conduct will resume.

[00:13:53] Speaker 02:
My understanding is that is their judicial estoppel argument.

[00:13:56] Speaker 02:
And the problem with that argument is that it lacks the judicially

[00:14:02] Speaker 02:
sanctioned change in the judicial imprimatur, as Buchanan said.

[00:14:06] Speaker 02:
So the secretary said that the April 2020 R.O.

[00:14:14] Speaker 02:
decision was erroneous.

[00:14:18] Speaker 02:
The agency then came out with two additional R.O.

[00:14:23] Speaker 02:
decisions that granted Mr. Cavasciudi relief.

[00:14:25] Speaker 02:
What the secretary said in that is not

[00:14:31] Speaker 02:
sufficient to confer prevailing party status.

[00:14:33] Speaker 02:
That doesn't have any sort of judicially sanctioned change in the party's legal relationship.

[00:14:40] Speaker 02:
And I think they're trying to bootstrap the prevailing party status through the judicial estoppel argument.

[00:14:47] Speaker 02:
But the judicial estoppel argument, at this point, fails for a number of reasons.

[00:14:53] Speaker 02:
Judicial estoppel may apply in the future if the secretary were to assert a clearly inconsistent position and try to somehow benefit from that position.

[00:15:01] Speaker 02:
But that's purely hypothetical.

[00:15:04] Speaker 02:
Here, in fact, Mr. Carasciuti has already been granted and paid the benefits.

[00:15:09] Speaker 02:
So the secretary, there's this argument on the other side that the secretary is precluded from reneging on his position.

[00:15:21] Speaker 02:
award has already been effectuated.

[00:15:23] Speaker 02:
So there is no opportunity for the Secretary now to renege on that.

[00:15:28] Speaker 02:
So it's not merely hypothetical to say that the Secretary is at some future point to stop from changing his position.

[00:15:36] Speaker 02:
It's also essentially an impossibility.

[00:15:40] Speaker 04:
Just a very practical threat.

[00:15:44] Speaker 04:
Can't the Secretary claw back improperly paid benefits?

[00:15:48] Speaker 02:
There is a mechanism for the secretary to do that, although that mechanism entails notice to the veteran and additional due process concerns.

[00:15:57] Speaker 02:
So that if the secretary were to try that and the veteran opposed that and got a judicial decision saying the secretary can't do that, he would probably qualify for prevailing party status in that case.

[00:16:09] Speaker 02:
But that hasn't happened.

[00:16:12] Speaker 02:
And to say that he's somehow a prevailing party just because of potential future occurrences

[00:16:18] Speaker 02:
would create an exception to Buchanan that essentially swallows the rule.

[00:16:24] Speaker 02:
Because in any of these mutinous dismissals, for lack of case or controversy because of voluntary action on the part of the defendant, the plaintiff can always come in and say, well, the defendant has now judicially stopped from changing their position.

[00:16:38] Speaker 02:
And therefore, because the court dismissed for mutinous, there's a legal change in the party's relationship.

[00:16:45] Speaker 02:
And we qualify for prevailing party status.

[00:16:48] Speaker 02:
it would reanimate the catalyst theory in Buckhannon that the Supreme Court squarely rejected.

[00:16:53] Speaker 00:
Suppose that he had asked the Veterans Court, instead of dismissing it as moot, which I guess he did, to order the government to comply with its representations at the time.

[00:17:07] Speaker 00:
And he'd said, please do this so that I can get attorney's fees.

[00:17:11] Speaker 00:
And the court had agreed.

[00:17:12] Speaker 00:
Would that be sufficient to get him attorney's fees?

[00:17:14] Speaker 00:
There was an actual order.

[00:17:17] Speaker 00:
The court agreed to issue an actual order compelling the government.

[00:17:22] Speaker 02:
If the court issued an actual order compelling the secretary to comply with the court's ruling, that's a judicially sanctioned change in the party's legal relationship.

[00:17:33] Speaker 02:
That would qualify as prevailing party status, yes.

[00:17:39] Speaker 02:
But we don't have that here.

[00:17:44] Speaker 02:
the appellant is trying to create is, if the secretary, a day after the mandamus petition is filed, took voluntary action and corrected the mistake that somehow grants appellant prevailing party status, that, as I just said, undercuts Buchanan.

[00:18:02] Speaker 02:
It creates disincentives for the agencies to correct their own errors, which they do not just in veterans cases, but bit protest cases.

[00:18:09] Speaker 02:
They take corrective action all the time.

[00:18:12] Speaker 02:
And that's the sort of conduct that should be encouraged for the secretary or for the agency to recognize that there's been an error, correct that error, and grant the entirety of the relief here.

[00:18:23] Speaker 02:
We're not talking about settlement where some portion of the relief was granted here.

[00:18:27] Speaker 02:
The secretary granted the entirety of the relief.

[00:18:32] Speaker 00:
And I just want to touch on one point about- It seems a little bit unfair that there shouldn't be any opportunity to collect attorney's fees when there's a blatant disregard

[00:18:41] Speaker 00:
for an order, and the veteran asked us to incur a legal fees to correct that.

[00:18:49] Speaker 02:
Well, the secretary recognized the error and corrected that error.

[00:18:52] Speaker 02:
And that was the same issue in Buchanan, Judge Dyke.

[00:18:56] Speaker 02:
The Supreme Court said that, yes, sometimes the litigation spurs the defendant to take action and grant the relief that the petitioner seeks.

[00:19:10] Speaker 02:
that catalyst theory is not a basis.

[00:19:13] Speaker 02:
And there was a split of opinion before that.

[00:19:15] Speaker 02:
Some of the circuits had granted prevailing party status on the catalyst theory.

[00:19:19] Speaker 02:
And the Supreme Court in Buchanan, again, said that, no, that's not a sufficient basis.

[00:19:26] Speaker 02:
This case is no different.

[00:19:31] Speaker 04:
Can you address the sentence in the Scalia concurrence

[00:19:37] Speaker 04:
that says traditionally it's a minor part of that the first that you're invariably that if you're being the first friend party the party that we need to see or a case of finding parenthesis or an admission close parenthesis of liability is that uh... incorrect uh... it's contradicted by the majority the court's opinion in you can and uh... would

[00:20:06] Speaker 04:
that little parenthetical actually apply here.

[00:20:09] Speaker 02:
So there's two questions there, Judge Tarantio.

[00:20:14] Speaker 02:
First, I don't think that this parenthetical about an admission of liability contradicts the majority in Buchanan.

[00:20:24] Speaker 02:
Obtaining a finding of liability, I'm not sure what Justice Scalia, the late Justice Scalia, was referring to as a parenthetical or admission of liability, but it's certainly not

[00:20:36] Speaker 02:
I think it had to be something more than just a statement by a defendant that there's an error and they're correcting that error.

[00:20:46] Speaker 04:
You think it refers to something like a judicially recorded or approved admission?

[00:20:56] Speaker 02:
That's a consent decree.

[00:20:58] Speaker 02:
Essentially a consent decree, yes.

[00:21:01] Speaker 02:
Where the court retains jurisdiction, the court administers the consent decree.

[00:21:06] Speaker 02:
The crux of the analysis is whether there's a judicially sanctioned change, a judicial alteration in the party's relationship.

[00:21:16] Speaker 02:
There can be many alterations in the party's relationships, but not all of them are judicially sanctioned.

[00:21:22] Speaker 02:
But Cannon made that line clear, that you need that judicial imprimatur.

[00:21:29] Speaker 02:
There's a second part to your question, Judge Toronto, as well.

[00:21:32] Speaker 04:
I thought you actually answered me in full, so I'll be able to introduce something that's not in my mind at the moment.

[00:21:43] Speaker 02:
So just to address one final point with respect to the settlement negotiations, the Veterans Court made a factual finding that there's nothing to suggest that the secretary acted inappropriately here.

[00:21:56] Speaker 02:
That's not a finding that this court can review within its jurisdiction, because that was a factual determination.

[00:22:02] Speaker 02:
With that, if there are no further questions, we respectfully request that the Veterans Court's decision be affirmed.

[00:22:09] Speaker 03:
Thank you, Counselor.

[00:22:11] Speaker 03:
Mr. Coulter has some more time.

[00:22:13] Speaker 01:
Thank you, Your Honor.

[00:22:14] Speaker 01:
If I could just make a few points very briefly.

[00:22:17] Speaker 01:
I would add that in addition to Justice Scalia's concurrence, there's a very similar rule established in this Court's line of cases involving remands to administrative agencies.

[00:22:29] Speaker 01:
at Davis v. Nicholson, 475F1360 is an example of this, where this court held that remands based on our recognition of agency error from the record do confer prevailing party status.

[00:22:46] Speaker 01:
The same result follows if the Veterans Court finds administrative error

[00:22:50] Speaker 01:
or if the secretary concedes it, I think that's another indication that Justice Scalia's concurrence is legally supported beyond the concurrence itself.

[00:23:00] Speaker 01:
But the concession leads to a judicial action there, which is a remand.

[00:23:04] Speaker 01:
Your Honor, I'm not sure that there is a distinction between remand versus dismissal for mootness.

[00:23:10] Speaker 01:
Well, I mean, to be clear, this is why we have not primarily relied on these line of cases.

[00:23:16] Speaker 01:
They are not absent for the reason that you say.

[00:23:17] Speaker 01:
I just meant that the, I think that the reasoning is persuasive and here we have a judicial action in the form of the dismissal order.

[00:23:26] Speaker 01:
The secretary has argued that our, the result that we're seeking would swallow the rule.

[00:23:33] Speaker 01:
I think in addition to the reasons that I explained before, that I don't think that's so, I would also point the court to New Hampshire versus Maine.

[00:23:41] Speaker 01:
At 755 to 56, where the Supreme Court explains a variety of limitations on the use of judicial estoppel against government entities.

[00:23:52] Speaker 01:
You can't stop the government to compromise a governmental interest in enforcing the law.

[00:23:57] Speaker 01:
You can't stop the government where the shift in the position is a result of a change in public policy, nor where the shift in the government's position is a result of change in facts on the ground that were essential to the prior judgment.

[00:24:09] Speaker 01:
I think these are all important limiting factors that would not make this a typical effect in the run of cases.

[00:24:17] Speaker 01:
The secretary also argued that judicial estoppel may only apply at some point in the future and suggested it would not apply prospectively.

[00:24:27] Speaker 01:
But that argument is precluded by the All Ready versus Nike case, as well as this court's decision in Monsanto.

[00:24:35] Speaker 01:
The last point I just want to make very briefly is that the secretary has argued that one of the problems with our judicial estoppel argument is that it lacks any sort of judicial sanction.

[00:24:48] Speaker 01:
But we think that judicial estoppel definitionally has judicial imprimatur.

[00:24:54] Speaker 01:
That is the entire point of judicial estoppel.

[00:24:57] Speaker 01:
And it is something that relies on the court's authority to have a preclusive effect going forward.

[00:25:05] Speaker 01:
Secretary said that our lack of voluntariness argument hinges on judicial estoppel.

[00:25:11] Speaker 01:
But I think that our lack of voluntary argument.

[00:25:13] Speaker 01:
Voluntariness argument comes up in two ways in this case.

[00:25:16] Speaker 01:
The first of which is the secretary's admission that he was correcting an error that he was required to do.

[00:25:23] Speaker 01:
And the second of which is that with the effect of judicial estoppel going forward, there is now a lack of voluntariness.

[00:25:31] Speaker 01:
So I would submit that there are two different reasons that the actions and representations here were not purely voluntary.

[00:25:38] Speaker 01:
And if there are no further questions, we would ask the court to reverse.

[00:25:42] Speaker 03:
Thank you, Mr Falkow.

[00:25:44] Speaker 03:
The case is submitted.