[00:00:00] Speaker 00:
Our next case for argument is 21-2288 Cox v. McDonough.

[00:00:05] Speaker 00:
Carpenter, please proceed.

[00:00:09] Speaker 02:
May it please the court, Carpenter, appearing on behalf of Mr. Hugh Cox.

[00:00:14] Speaker 02:
This matter concerns a question of whether or not the provisions of 38 CFR 20.609

[00:00:22] Speaker 02:
control the review of Mr. Cox's fee agreement or whether or not the provisions of the successor provision at 38 CFR 14.636 I control.

[00:00:34] Speaker 02:
The section

[00:00:38] Speaker 02:
Relevant section under 20.609 is subsection F, and it provided for reasonableness review of fee agreements by the board, premised upon Congress's explicit grant of sua sponte jurisdiction to the Board of Veterans' Appeals.

[00:00:54] Speaker 02:
In other words, Congress specifically, by statute, authorized the board in the first instance to review fee agreements.

[00:01:04] Speaker 02:
Congress changed that provision and repealed that provision

[00:01:08] Speaker 02:
And as a result, the provisions of 38 CFR 20.609 had to be rewritten by the secretary and placed in a different section of the VA regulations in chapter 14.

[00:01:21] Speaker 02:
They appeared in chapter 14 because when Congress amended the statute,

[00:01:27] Speaker 02:
Congress provided that the review would not be undertaken by the board in the first instance for the question of reasonableness, but would be required by statute to be undertaken by the Secretary.

[00:01:40] Speaker 02:
The Secretary then delegated that responsibility to his Office of the General Counsel.

[00:01:46] Speaker 02:
The Office of the General Counsel then assumed responsibility pursuant to 38 CFR 14.63i for the review of fee agreements.

[00:01:57] Speaker 02:
In this case, there were three fee agreements.

[00:02:00] Speaker 04:
Let's assume that you're wrong and that the old version of the regulation applies to this case.

[00:02:06] Speaker 02:
I'm sorry.

[00:02:06] Speaker 04:
Let's assume that you're wrong about that and that the old version of the regulation applies to this case.

[00:02:13] Speaker 04:
If I understand correctly, you're saying that the board has no authority to enforce the fee agreement and that what, the fee agreement should be enforced in state court?

[00:02:24] Speaker 04:
Yes.

[00:02:25] Speaker 04:
Is that your view?

[00:02:27] Speaker ?:
Yes.

[00:02:28] Speaker 04:
And why isn't the fee agreement relevant to what's reasonable?

[00:02:32] Speaker 04:
What's a reasonable fee?

[00:02:34] Speaker 02:
Well, it is relevant to what's a reasonable fee.

[00:02:36] Speaker 02:
But the question is, is whether or not after the amendment of the statute and the creation of 14.636, the parties were required to comply with, and in this case, that would have been the Office of the VA General Counsel and Mr. Brinkley.

[00:02:52] Speaker 04:
Well, I ask you to assume the old version applies.

[00:02:56] Speaker 04:
The old version.

[00:02:57] Speaker 02:
Oh, I'm sorry.

[00:02:58] Speaker 02:
With that hypothetical.

[00:03:01] Speaker 03:
What is the argument in your brief?

[00:03:04] Speaker 03:
You have an alternative argument.

[00:03:06] Speaker 03:
You say, if the old regulation applied, my understanding was that your brief says the mistake was that the board misapplied the presumption.

[00:03:16] Speaker 02:
That's correct.

[00:03:18] Speaker 03:
And that your alternative argument wasn't limited to that.

[00:03:22] Speaker 02:
Yes, and I'm sorry.

[00:03:24] Speaker 03:
I didn't understand you to be arguing that the board lacked the power to do what it did in terms of looking at the substance of the contractual terms.

[00:03:37] Speaker 02:
Yes, that's correct.

[00:03:38] Speaker 02:
The argument made in the alternative assumes that that provision is valid.

[00:03:45] Speaker 02:
But there are other provisions of 20.609 that specifically

[00:03:51] Speaker 02:
authorize or require that the secretary presume that the fee called for in the agreement is reasonable, and that until that presumption is rebutted, it is not appropriate to make review of the terms of the fee agreement.

[00:04:09] Speaker 04:
What's the fee provided in the agreement?

[00:04:11] Speaker 04:
What the Veterans Court found is that the agreement provides no fee under these circumstances.

[00:04:19] Speaker 02:
I'm sorry, Your Honor, but what the fee agreement said was is it would be a quantum Marowit determination based upon the work that was performed.

[00:04:28] Speaker 04:
No, it says that only if he's discharged without cause, not if he's discharged with cause.

[00:04:34] Speaker 02:
OK.

[00:04:35] Speaker 02:
And in that circumstance, that is an inquiry that is beyond the authority of the board to make.

[00:04:44] Speaker 03:
But you didn't make that argument in your place.

[00:04:45] Speaker 02:
No, Your Honor, I did not.

[00:04:46] Speaker 02:
I was simply responding to the question that was posed.

[00:04:50] Speaker 03:
But as you know, we sometimes have questions about what arguments you're actually making.

[00:04:55] Speaker 03:
Because if you're talking about whether or not the state's question, you're not raising that question.

[00:05:03] Speaker 02:
No, not in this matter, no.

[00:05:07] Speaker 03:
My understanding was that the debate you were having with Judge Dife was brushing right up against the state's question, which is whether or not the authority of the board under the old statute and the old regulation

[00:05:20] Speaker 03:
was limited strictly to determining whether or not a fee was reasonable or excessive, not whether or not anyone was entitled to a fee.

[00:05:30] Speaker 02:
That's correct.

[00:05:31] Speaker 02:
And the decision in this case that was appealed by Mr. Brinkley was on the question of entitlement.

[00:05:38] Speaker 02:
The question of reasonableness was not presented to Mr. Cox as part of that appeal.

[00:05:47] Speaker 02:
There has to be some kind of notice and opportunity to respond by Mr. Cox when the board is going to undertake that authority, even if it is pursuant to the remand.

[00:06:01] Speaker 03:
This discussion is all outside the limits of the issue you've presented here, which is in the hypothetical that the old stat regulation applied.

[00:06:12] Speaker 03:
Your only contention was that the board

[00:06:14] Speaker 03:
misconstrued and misapplied the presumption in the statute and the regulation that the fee is reasonable if it's only 20%.

[00:06:22] Speaker 02:
Right.

[00:06:22] Speaker 02:
And that argument is made in the alternative.

[00:06:25] Speaker 02:
And this appeal in our judgment relies upon whether or not the Veterans Court erred as a matter of law when it concluded that the provisions of 20.609 controlled.

[00:06:37] Speaker 02:
And the provisions of 20.609 could not possibly

[00:06:41] Speaker 02:
have controlled since that regulation was both repealed by the secretary and was not operable.

[00:06:48] Speaker 03:
Could I ask a question about the previous appeal in this case?

[00:06:52] Speaker 03:
Yes.

[00:06:54] Speaker 03:
In the previous appeal, your argument was that the remand order from Judge Greenberg saying, please go back and look at the question of the contract terms dealing with what would happen if there had been a dismissal of the counsel for cause.

[00:07:11] Speaker 03:
So that's what Judge Greenberg wanted them to look at.

[00:07:15] Speaker 03:
And so the first question on that initial appeal was whether or not we had jurisdiction under Williams, whether he satisfied that test.

[00:07:22] Speaker 03:
And doesn't the Rule 36 judgment tell us that we decided we had jurisdiction?

[00:07:29] Speaker 03:
We did not dismiss the case from one jurisdiction.

[00:07:33] Speaker 02:
As I reflect upon it now, that is certainly an inference.

[00:07:39] Speaker 02:
Well, except that

[00:07:40] Speaker 02:
I did not read.

[00:07:41] Speaker 03:
No, if you don't have jurisdiction, you can't affirm.

[00:07:45] Speaker 03:
If a court lacks jurisdiction, I mean, being technical, you're dismissed from one jurisdiction.

[00:07:50] Speaker 03:
You don't affirm.

[00:07:52] Speaker 02:
Correct, Your Honor.

[00:07:54] Speaker 03:
So we affirmed.

[00:07:56] Speaker 03:
And what I understood, the court's question is, was the question of whether the old regime or the new regime applied, was that an issue in the first appeal?

[00:08:06] Speaker 02:
I don't believe it was, Your Honor, because... Wait, wait, wait.

[00:08:09] Speaker 03:
Didn't you argue in favor of the new 14256?

[00:08:14] Speaker 02:
I did, Your Honor, because I believe that that was part of the reason why the remand was... So you're very brief put that issue in question.

[00:08:24] Speaker 03:
Which regulation?

[00:08:26] Speaker 03:
In the first... In the first appeal, that's correct.

[00:08:29] Speaker 03:
Right.

[00:08:29] Speaker 02:
Okay.

[00:08:30] Speaker 03:
But that... And the government argued, oh, no, no, no, the old regulation applies.

[00:08:34] Speaker 03:
And there's some issue about whether you walked it back.

[00:08:36] Speaker 03:
What did you do in your reply brief?

[00:08:38] Speaker 03:
We couldn't understand what you were saying, right?

[00:08:41] Speaker 03:
But nonetheless, could we have affirmed, could we have allowed the case to go back to the board without adjudicating that question that was presented to us, which is, does the old apply or the new apply?

[00:08:53] Speaker 03:
If the new applies, you don't go to the board.

[00:08:55] Speaker 03:
You go to the secretary.

[00:08:56] Speaker 02:
Correct.

[00:08:58] Speaker 03:
So wasn't the old board and new board issue necessarily decided when we affirmed?

[00:09:03] Speaker 03:
and allowed the case to go to the board.

[00:09:07] Speaker 04:
The answer is there were several arguments being made there, and the affirmance doesn't tell us which arguments was adopted.

[00:09:15] Speaker 02:
That's correct, Your Honor.

[00:09:16] Speaker 03:
But there were not several arguments as to which regime applied.

[00:09:20] Speaker 02:
No, Your Honor, but by the same token, I do not, with the Rule 36 single page order, have any insight into that was the

[00:09:32] Speaker 02:
decision of the panel.

[00:09:35] Speaker 03:
Well, how could the case have gone back to the board if the board didn't have a jurisdiction?

[00:09:40] Speaker 03:
How could we possibly?

[00:09:41] Speaker 02:
What I understood the court to be affirming was the remand order, that the remand by the Veterans Court.

[00:09:53] Speaker 03:
And the remand was to send the case to the BVA with the instruction.

[00:09:59] Speaker 03:
Correct.

[00:09:59] Speaker 03:
Yes.

[00:09:59] Speaker 03:
And no one was arguing that the instruction was illegal.

[00:10:04] Speaker 03:
No one was challenging, saying that Judge Greenberg had the wrong ground for the remand.

[00:10:10] Speaker 03:
It was a pure question.

[00:10:13] Speaker 03:
Should this case go back to the board?

[00:10:16] Speaker 03:
Yes.

[00:10:16] Speaker 03:
And the argument that you made in your book was, no, no, no.

[00:10:19] Speaker 03:
No, it doesn't go to the board.

[00:10:20] Speaker 03:
The board doesn't have jurisdiction.

[00:10:23] Speaker ?:
Yes.

[00:10:23] Speaker 03:
Right.

[00:10:23] Speaker 03:
Yet we let the case go back to the board.

[00:10:26] Speaker 03:
And it wasn't an alternative argument about that, about which regime applies.

[00:10:33] Speaker 02:
No, Your Honor.

[00:10:34] Speaker 02:
But at that point, that was a single-judge disposition that had no precedential value.

[00:10:39] Speaker 02:
That doesn't make any difference.

[00:10:41] Speaker 02:
Well, I believe it does, Your Honor, because when it then went back and the board exercised its jurisdiction and made its decision.

[00:10:49] Speaker 03:
The only question is, does the board have the authority, yes or no?

[00:10:54] Speaker 03:
And you chose to ask us,

[00:10:57] Speaker 03:
even though it was a remand order and the decision wasn't final, you asked us to decide that issue, yes or no.

[00:11:03] Speaker 03:
Because if you had prevailed in your initial appeal, then guess what?

[00:11:08] Speaker 03:
We wouldn't be here.

[00:11:10] Speaker 03:
Because the answer would have been, can't go to the board.

[00:11:12] Speaker 03:
And guess what?

[00:11:13] Speaker 03:
It was too late to go to the secretary, right?

[00:11:17] Speaker 02:
Correct, Your Honor.

[00:11:18] Speaker 03:
So it was a total, you're going to absolutely win if you were right.

[00:11:22] Speaker 03:
Absolutely win.

[00:11:23] Speaker 03:
No question about it.

[00:11:24] Speaker 03:
No other issue involved.

[00:11:25] Speaker 03:
Just the question of, does it go to the board?

[00:11:27] Speaker 03:
Yes or no.

[00:11:30] Speaker 03:
And if we affirm, as opposed to dismissing one of your objections.

[00:11:36] Speaker 00:
On a different issue, I just did want to say one thing.

[00:11:40] Speaker 00:
Mr. Carpenter, you're usually really good with rules and regs.

[00:11:43] Speaker 00:
And you're usually good at admitting if you've missed something.

[00:11:48] Speaker 00:
I was a little disappointed in your brief when you said after extensive searching, you were unable to find any rule that should have caused you to disclose the related appeal.

[00:12:03] Speaker 00:
You said you were unsuccessful in finding any rule that would have required you to disclose it.

[00:12:08] Speaker 00:
47.5 is directly on point and would have required you to disclose it.

[00:12:13] Speaker 00:
So you're usually pretty good.

[00:12:15] Speaker 00:
I mean, is there something about 47.5 I'm missing when it requires you to disclose related cases?

[00:12:21] Speaker 02:
No, Your Honor.

[00:12:22] Speaker 02:
And that is my misunderstanding of this being a related case, to the extent that I didn't properly- It was a prior appeal involving the merits of the very case that is now before us on attorney's fees.

[00:12:39] Speaker 00:
And respectfully, Your Honor, I- And you cited the vacates and remains

[00:12:44] Speaker 00:
for that prior case?

[00:12:46] Speaker 02:
And it was my error to have omitted it because I understood the disposition to be one on the Williams criteria.

[00:12:54] Speaker 02:
That was my mistake.

[00:12:56] Speaker 00:
Regardless of the disposition, that has nothing to do with something as a related case or not, right?

[00:13:02] Speaker 00:
And I don't know.

[00:13:03] Speaker 00:
I was just surprised that instead of just saying, sorry, I should have disclosed it and didn't, you said there's no rule that would have required you to disclose it.

[00:13:10] Speaker 00:
And I think that's clearly wrong.

[00:13:11] Speaker 00:
And I would urge you not to do that again.

[00:13:14] Speaker 02:
I will not.

[00:13:18] Speaker 00:
Mr. Kushner.

[00:13:21] Speaker 01:
Thank you, Chief Judge.

[00:13:22] Speaker 01:
Good morning and please the court.

[00:13:24] Speaker 01:
There are two things that are uncontested in this case.

[00:13:27] Speaker 01:
The first one is that Mr. Cox was fired for good and inadequate cause by Mr. Brinkley because Mr. Brinkley found Mr. Cox's representation deficient.

[00:13:38] Speaker 01:
The second is that the fee agreements plainly read

[00:13:42] Speaker 01:
do not entitle Mr. Cox to any fee whatsoever under the circumstances of this case.

[00:13:49] Speaker 00:
So is it your argument that determining the reasonableness of the fee, which the board is clearly required to do, includes determining whether it should be zero?

[00:13:58] Speaker 01:
Absolutely.

[00:14:00] Speaker 01:
Absolutely.

[00:14:00] Speaker 04:
Back up a moment.

[00:14:03] Speaker 04:
The board does not have the authority to enforce fee agreements, right?

[00:14:11] Speaker 03:
To enforce, you say?

[00:14:12] Speaker 01:
Yes.

[00:14:14] Speaker 01:
Well, Judge Beck, I think it depends on what you mean by enforced fee agreements.

[00:14:17] Speaker 01:
It certainly has to be enforced.

[00:14:18] Speaker 04:
Are you familiar with this?

[00:14:20] Speaker 04:
Strangely enough, there's an earlier case involving, argued by Mr. Carpenter, involving the same Mr. Cox and involving a fee, which is at 149 Fed 3rd, 1360.

[00:14:33] Speaker 04:
I don't know whether you're familiar with that case.

[00:14:35] Speaker 04:
But as I understand that case, it holds that the board does not have the authority to enforce fee agreements.

[00:14:43] Speaker 01:
So whether the board has authority to enforce fee agreements, putting that question aside, the board certainly has authority.

[00:14:51] Speaker 04:
But what's the position?

[00:14:53] Speaker 04:
Do you agree that the board can enforce fee agreements?

[00:14:55] Speaker 04:
I mean, that's not to say that the fee agreement's not relevant to reasonableness.

[00:14:59] Speaker 04:
I understand that's your position.

[00:15:00] Speaker 04:
But that seems to me a different approach.

[00:15:03] Speaker 01:
So to be honest, Judge Deck, I'm not as familiar with the earlier Cox decision that this is not a case we cited in our briefing.

[00:15:12] Speaker 03:
Really?

[00:15:13] Speaker 03:
It deals with the authority of the board.

[00:15:16] Speaker 01:
Right.

[00:15:17] Speaker 03:
The question in this case is whether or not the board has authority to do what it did.

[00:15:22] Speaker 03:
What the board did here was decide that a contract, when you interpret the contract, it says no fee could be reasonable.

[00:15:30] Speaker 01:
Right.

[00:15:31] Speaker 01:
And reasonableness is something the board is able to determine.

[00:15:34] Speaker 03:
And in that context, wasn't the board enforcing the contract?

[00:15:39] Speaker 01:
Well, we think what the board was doing was determining reasonableness as it is allowed to do.

[00:15:44] Speaker 03:
And I'm sorry, Your Honor, can you elaborate on what the skates question is?

[00:15:56] Speaker 01:
There are a few questions in skates.

[00:15:57] Speaker 03:
What was the question in skates that came before this court?

[00:16:01] Speaker 01:
Well, the way we read SCATES, SCATES was about whether it is the board or the RO that should be the initial body to determine whether a fee is reasonable or not under the old regime.

[00:16:16] Speaker 03:
And that's whether or not the board had authority to do what it did, right?

[00:16:21] Speaker 01:
Whether the board had authority to do it.

[00:16:22] Speaker 03:
So the authority lay in the board or it lay in the RO.

[00:16:26] Speaker 01:
That's right.

[00:16:27] Speaker 01:
That's correct.

[00:16:28] Speaker 01:
And so in SCATES, what this court said is,

[00:16:31] Speaker 03:
We ducked the question.

[00:16:32] Speaker 01:
Ducked the question, but in ducking the question, the court also said is that, yes, the board has original jurisdiction of a reasonable scope.

[00:16:39] Speaker 03:
So we said in that particular case, Judge Freeman wrote for the court, it seems appropriate to have the RO do it.

[00:16:46] Speaker 03:
That's correct.

[00:16:47] Speaker 03:
So this court never decided whether the board has the authority in the initial instance as opposed to the RO, right?

[00:16:59] Speaker 03:
The way we read skates, we think... But isn't the question still open because we ducked the question in the skates' opinion?

[00:17:11] Speaker 01:
It can be said that the question is still open.

[00:17:13] Speaker 03:
How can you say the question was decided when we said it wasn't?

[00:17:17] Speaker 01:
Well, because in skates, the court said that the board has two different

[00:17:21] Speaker 01:
types of jurisdiction.

[00:17:23] Speaker 01:
It has original jurisdiction under Section 5904 of Title 38 to review fee agreements and determine whether the fee called for is excessive or unreasonable.

[00:17:33] Speaker 01:
And it has appellate jurisdiction, which is broader under Section 7104 and 511 of Title 38 to make determinations about all questions in a matter involving the provision of fees to veterans.

[00:17:46] Speaker 01:
So the way we read SCATES and the way we read section 5904, the board clearly does have original jurisdiction to review questions about reasonableness.

[00:17:57] Speaker 01:
SCATES was a bit unique because there, there were some factual questions that remained unresolved.

[00:18:03] Speaker 01:
And this court said those questions are best resolved by the RO in the first instance.

[00:18:09] Speaker 01:
Here, there's no factual questions.

[00:18:11] Speaker 01:
It is, as I said, undisputed at this stage of the litigation.

[00:18:15] Speaker 01:
that Mr. Cox was fired for good and adequate cost, and it is undisputed that the board correctly interpreted the fee agreements between Mr. Cox and Mr. Brinkley.

[00:18:25] Speaker 01:
So all of those factual questions are no longer relevant.

[00:18:28] Speaker 01:
So at this point, all that remains is to decide whether

[00:18:33] Speaker 01:
The agreement of 20% based on those undisputed facts is a reasonable fee.

[00:18:39] Speaker 01:
And we think under 5904 and under the regulatory provision 20.609, that is something that the board certainly has within its jurisdiction to decide.

[00:18:50] Speaker 04:
Well let's assume that the board can determine questions of reasonableness.

[00:18:54] Speaker 04:
The problem here, it seems to me, is I read the board's decision not as making a reasonableness determination, but as saying that the fee agreement is a barrier to the recovery of any fee.

[00:19:07] Speaker 04:
And I'm not sure that the board has authority to do that.

[00:19:12] Speaker 01:
So in skates, this court said that the line between reasonableness and entitlement is not a very bright line.

[00:19:22] Speaker 01:
It all depends on how

[00:19:24] Speaker 01:
someone, in this case the board, frames the issue.

[00:19:27] Speaker 01:
Is it framed in terms of the attorney not being entitled to the fee, or is it framed in terms of it's not being reasonable for the attorney to recover a 20% fee?

[00:19:37] Speaker 03:
Either way... That's your interpretation of skates.

[00:19:42] Speaker 03:
That particular language isn't in skates, how the issue was presented.

[00:19:48] Speaker 01:
That wasn't Skates, Your Honor.

[00:19:50] Speaker 03:
In Skates... Skates doesn't say, well, you allow the petitioner to frame whether this is reasonableness or entitlement.

[00:19:57] Speaker 01:
It doesn't say who frames.

[00:19:58] Speaker 03:
That's what I mean.

[00:19:59] Speaker 03:
You're putting a gloss on what you think Skates means.

[00:20:04] Speaker 03:
In a way, I certainly am, but in Skates... They simply says it's a hard line to draw.

[00:20:08] Speaker 01:
That's right.

[00:20:09] Speaker 01:
That's correct, Your Honor.

[00:20:10] Speaker 01:
And the subsequent line after that is the cordon skate saying, it's all about how the issue is framed.

[00:20:19] Speaker 01:
And we think that's correct, too.

[00:20:21] Speaker 01:
But again, Judge Dyck, answering your question, that's the board's original jurisdiction under 5904.

[00:20:27] Speaker 01:
The board also has broader appellate jurisdiction under 7104 and 511, which allows the board

[00:20:34] Speaker 01:
to resolve all questions and matter involving the provision of fees to a veteran.

[00:20:39] Speaker 04:
Yeah, but I'm not sure that that gives them the authority to enforce the fee agreement.

[00:20:44] Speaker 04:
And you sort of passed on the question of whether the VA does have that authority earlier.

[00:20:52] Speaker 04:
I mean, are you saying the VA has the authority to enforce fee agreements?

[00:20:57] Speaker 01:
to the extent that the fee agreements speak to the reasonableness of a fee, then yes they do.

[00:21:03] Speaker 04:
Okay, that's a more limited question.

[00:21:05] Speaker 04:
So I guess what I'm saying is assuming that the board's authority is limited to determine a question of reasonableness, is it appropriate for the board to say the fee agreement says X, that's the end of the matter, we're not going to look beyond that?

[00:21:21] Speaker 04:
Or should the board under those circumstances be saying the fee agreement is just one

[00:21:26] Speaker 04:
factor to be considered in reasonableness.

[00:21:29] Speaker 04:
And, after all, the fee agreement here is not all that clear as to what happens when there's a discharge for cause.

[00:21:36] Speaker 04:
It doesn't explicitly say that you don't recover a fee.

[00:21:41] Speaker 01:
Right.

[00:21:41] Speaker 01:
That is one interpretation of the fee agreements, although I will know that Mr. Cox never urged the board or the Veterans Court or this court to interpret the fee agreements in a different way.

[00:21:52] Speaker 01:
So at this point, it's undisputed that as the board saw it and the Veterans Court agreed, the fee agreement means that if an attorney is discharged for good and adequate cause, he is entitled to no fee.

[00:22:04] Speaker 04:
So not to make this too complicated.

[00:22:07] Speaker 04:
My question is basically can the board say the fee agreement says X, that's the end of the matter as far as reasonableness is concerned, or does the board have to say we take into account the fee agreement, but the fee agreement is not determined?

[00:22:20] Speaker 04:
Which of those two approaches is correct?

[00:22:23] Speaker 01:
I don't know if either one of those approaches is necessarily correct, but I will answer

[00:22:30] Speaker 01:
perhaps in a slightly different way.

[00:22:32] Speaker 01:
The first thing that you said, Judge Dyke, which is can the board say the fee agreement says there's no fee here, so that's the end of the matter for reasonableness.

[00:22:41] Speaker 01:
We think that is entirely within the board's purview to decide because the fee agreement embodies a meeting of the minds, the relationship between the client and the attorney as both parties understood.

[00:22:54] Speaker 01:
And so if the fee agreement says that the attorney is entitled to no fee,

[00:22:58] Speaker 01:
It is certainly within the board's ability to say it would not be reasonable under these circumstances to give the attorney any fee based on the party's meaning of the minds, based on their contractual relationship.

[00:23:15] Speaker 00:
Let me ask you a question.

[00:23:17] Speaker 00:
I don't know the answer to.

[00:23:18] Speaker 00:
I'm just curious here.

[00:23:20] Speaker 00:
So there's no doubt in the Veterans Court's opinion

[00:23:24] Speaker 00:
that they said expressly in three different places that I've identified, including on appendix page 20, that one could fairly call what the board did here a reasonableness analysis, and that is summing up the board's discussion of him being fired for good and adequate cause.

[00:23:41] Speaker 00:
So the Veterans Court has analyzed the board's decision, and it categorized it as a reasonableness analysis.

[00:23:49] Speaker 00:
They didn't say the board was exercising authority under a single factor or trying to enforce the settlement agreement or refusing to enforce the settlement agreement.

[00:23:59] Speaker 00:
They defined the board as having performed a reasonableness analysis and said this look at the term in the settlement agreement was part of that reasonableness analysis.

[00:24:09] Speaker 00:
On appeal, do we accept that?

[00:24:11] Speaker 00:
Do we review that decision de novo?

[00:24:15] Speaker 00:
Do we give it just whatever persuasive weight it has based on how it's written?

[00:24:19] Speaker 00:
How does the federal circuit look to the Court of Veterans Appeals decision that what the board did here was, in fact, a reasonable misanalysis as opposed to an enforcement of a settlement agreement?

[00:24:34] Speaker 00:
You may not know the answer because it popped in my head here.

[00:24:36] Speaker 00:
So it's not like nobody telegraphed it to you.

[00:24:40] Speaker 00:
But do you know whether or not we have the authority to look past or de novo consider the CABC's

[00:24:48] Speaker 00:
statement about what the board did?

[00:24:50] Speaker 01:
To be honest, Chief Judge Moore, I don't know the answer to that.

[00:24:54] Speaker 01:
I'm happy to provide supplemental briefing on it.

[00:24:56] Speaker 00:
Well, I'm just thinking we're limited.

[00:24:57] Speaker 00:
We don't have the ability to review facts, right?

[00:25:00] Speaker 01:
Right.

[00:25:00] Speaker 00:
And so whether the board's analysis was in fact a reasonableness analysis to some extent feels like a factual question to me.

[00:25:08] Speaker 00:
So I'm not sure, but I'm not sure.

[00:25:09] Speaker 00:
I don't know.

[00:25:10] Speaker 00:
I don't know.

[00:25:11] Speaker 00:
Reasonableness feels like the kind of thing that someone would say was factual.

[00:25:15] Speaker 00:
But this isn't about the underlying merits of whether it was or wasn't reasonable, so much as it's a question of, did they conduct a reasonableness analysis?

[00:25:23] Speaker 00:
I don't know the answer.

[00:25:24] Speaker 00:
I'm just wondering if that question is within our jurisdiction, because is it factual?

[00:25:30] Speaker 00:
I mean, the CABC said this was done in a reasonableness analysis.

[00:25:35] Speaker 00:
You don't have an answer for me, do you?

[00:25:37] Speaker 01:
I don't have an answer for you, unfortunately.

[00:25:39] Speaker 00:
That's better than you offering me an off the cuff answer.

[00:25:42] Speaker 01:
I appreciate that.

[00:25:42] Speaker 01:
I'm happy to provide supplemental briefing, as they said.

[00:25:45] Speaker 01:
I do want to point out.

[00:25:48] Speaker 03:
Is this a jurisdictional problem, Burns?

[00:25:51] Speaker 03:
Do we have to get into it?

[00:25:53] Speaker 03:
Mr. Carpenter isn't challenging here the board's authority, even if it is a matter of enforcing the agreement.

[00:26:03] Speaker 03:
He's saying if the old regime applies, the only thing that was wrong was that there was an improper application of a presumption of reasonableness.

[00:26:12] Speaker 03:
He made quite clear

[00:26:14] Speaker 03:
in his brief, and he made quite clear in our argument that this whole question of whether the board is authorized, in essence, to do an enforcement, he's not challenging that.

[00:26:24] Speaker 03:
You're not challenging that.

[00:26:25] Speaker 01:
Do we have to reach that issue?

[00:26:28] Speaker 01:
We don't think so, Your Honor, if that's the way the court interprets it.

[00:26:32] Speaker 03:
Well, I'm describing this whole discussion.

[00:26:33] Speaker 03:
In my mind, this is the state's issue.

[00:26:37] Speaker 03:
The state, you're deciding not the reasonable system, but the enforceability.

[00:26:43] Speaker 04:
Right.

[00:26:44] Speaker 04:
So why isn't that a jurisdictional question as to the extent of the board's jurisdiction?

[00:26:50] Speaker 01:
It might be.

[00:26:50] Speaker 01:
It might be.

[00:26:51] Speaker 01:
And as we pointed out in our brief.

[00:26:53] Speaker 03:
Can I finish for a second to assume it is?

[00:26:56] Speaker 03:
Assume it's a jurisdictional question.

[00:26:58] Speaker 03:
And so we reach it.

[00:27:00] Speaker 03:
And if we decide that, meaning if the board lacks jurisdiction, we have jurisdiction to decide jurisdiction, correct?

[00:27:10] Speaker 01:
Yes.

[00:27:11] Speaker 03:
So we can decide this initial issue about whether the board had jurisdiction?

[00:27:16] Speaker 00:
No.

[00:27:18] Speaker 00:
That issue wasn't raised.

[00:27:19] Speaker 00:
Isn't there a difference?

[00:27:20] Speaker 00:
We can decide our own jurisdiction, Suez-Fonte, but isn't there an obligation for someone to raise whether a lower tribunal had jurisdiction?

[00:27:28] Speaker 00:
That's not something we get to do, Suez-Fonte, correct?

[00:27:31] Speaker 01:
I think that's correct, Chief Judge Moore.

[00:27:32] Speaker 03:
I also, I thought- I don't want to stick with this, because if that's the case, then the issue isn't in front of us.

[00:27:38] Speaker 03:
It's only if we can get back, if Greenberg was wrong, Judge Greenberg shouldn't have sent it to the board, because the board didn't have any authority to do what he asked it to do.

[00:27:50] Speaker 03:
And that was the triggering event, right?

[00:27:53] Speaker 03:
That would be the triggering event on the wrong order.

[00:27:56] Speaker 01:
Right, but I think Chief Judge Moore is correct.

[00:27:59] Speaker 03:
Because in the order of things, if the board lacked jurisdiction, then the CABC lacked jurisdiction.

[00:28:04] Speaker 03:
If it's true that there was no jurisdiction in the board here, then when this case came from Judge Greenberg's remand back up to the board, instead of writing the elegant opinion it did, they should have said there's no jurisdiction.

[00:28:16] Speaker 03:
It's over.

[00:28:17] Speaker 04:
I think if you look, you'll find plenty of district court cases coming to the Court of Appeals where the courts of appeals say there's no district court jurisdiction.

[00:28:26] Speaker 04:
We have an obligation to determine that.

[00:28:29] Speaker 01:
So I have two things to say about that, Judge Clevenger.

[00:28:33] Speaker 01:
The first one is.

[00:28:35] Speaker 01:
I don't necessarily agree that if we assume the old regime applies, then Judge Greenberg's opinion was incorrect in the case that preceded this one.

[00:28:47] Speaker 03:
Well, it would depend on how we answer this question of authority to enforce the agreement.

[00:28:52] Speaker 01:
Not necessarily, because again, the board also has appellate jurisdiction under 7104 and 511.

[00:28:57] Speaker 01:
So the remand by Judge Greenberg to the board could have been a remand to the board in its appellate capacity.

[00:29:06] Speaker 01:
Because recall, in 2013, there was an RO decision giving Mr. Cox a 20% fee.

[00:29:13] Speaker 01:
So it could have been a remand to the board to make a determination as an appellate body of whether the RO's initial decision from 2013 was correct.

[00:29:24] Speaker 01:
So I don't necessarily think there's an issue of the board's jurisdiction, even under the old regime.

[00:29:32] Speaker 03:
Even though the only ground on which the BVA would be reviewing the board decision, the RO decision, would be on this enforceability question.

[00:29:43] Speaker 01:
Right.

[00:29:44] Speaker 03:
Because there was no dispute on the facts.

[00:29:46] Speaker 01:
That's correct.

[00:29:47] Speaker 01:
Chief Judge Moore, if I can say one final thing.

[00:29:50] Speaker 01:
You mentioned that the Veterans Court said that the board made this determination as part of reasonableness.

[00:29:56] Speaker 01:
All I want to point your attention to is page 311 of the Joint Appendix.

[00:30:01] Speaker 01:
This is part of the board's decision below.

[00:30:04] Speaker 01:
And if you look at this discussion,

[00:30:06] Speaker 01:
of the relationship between the parties and the fee agreement and the good and adequate cost provision.

[00:30:12] Speaker 01:
It all comes under the heading of reasonableness of attorney fees.

[00:30:16] Speaker 01:
So it does look as if the board made this as part of its reasonableness determination.

[00:30:22] Speaker 00:
But again, unfortunately- But even if we have the authority to review it, you're saying that we should come out the same way.

[00:30:27] Speaker 01:
Absolutely.

[00:30:28] Speaker 01:
Got it.

[00:30:28] Speaker 01:
Absolutely.

[00:30:28] Speaker 03:
Did the board decision say we don't have to look at reasonableness?

[00:30:33] Speaker 01:
The board said- Board decision that

[00:30:36] Speaker 03:
that said he's not entitled to any money because of the provisions on the quantum merit.

[00:30:43] Speaker 03:
Absolutely.

[00:30:43] Speaker 03:
And so we don't have to look at reasonableness.

[00:30:46] Speaker 03:
I thought the board's decision actually said that.

[00:30:49] Speaker 01:
It did.

[00:30:50] Speaker 01:
It did.

[00:30:50] Speaker 01:
And that's our point.

[00:30:52] Speaker 01:
The board looked at reasonableness.

[00:30:53] Speaker 01:
That's what it was supposed to look at.

[00:30:55] Speaker 01:
It decided that Mr. Cox, it would be unreasonable to give Mr. Cox any fee based.

[00:30:59] Speaker 03:
That's how you interpret that language in the opinion.

[00:31:01] Speaker 01:
That's correct.

[00:31:02] Speaker 01:
That's correct.

[00:31:04] Speaker 00:
Okay.

[00:31:05] Speaker 00:
Thank you, Mr. Kushner.

[00:31:05] Speaker 01:
Thank you.

[00:31:06] Speaker 00:
Mr. Carpenter, you have some available time.

[00:31:10] Speaker 02:
I just want to clarify a matter and that is that the original appeal was Mr. Brinkley's appeal.

[00:31:20] Speaker 02:
The VA agreed that Mr. Cox was entitled to the fee.

[00:31:24] Speaker 02:
What was appealed by Mr. Brinkley was that determination that he was not entitled to a fee.

[00:31:31] Speaker 02:
That appeal went to the board in 2015, which was the appeal that Judge Greenberg ruled upon.

[00:31:38] Speaker 02:
In that appeal, Mr. Brinkley was the appellant and Mr. Cox was the intervener.

[00:31:45] Speaker 02:
As a result of Judge Greenberg's decision and the ultimate decision on remand by the board, the roles of the party were reversed and Mr. Cox

[00:32:00] Speaker 02:
had to become the appellant on a case that he never appealed.

[00:32:06] Speaker 02:
And so he was going back on a case that he had won in 2015 in order to find out in 2019 that that victory had been taken away from him.

[00:32:19] Speaker 00:
That victory wasn't taken away from him.

[00:32:21] Speaker 00:
But if it were, your chance to argue that sort of has passed.

[00:32:25] Speaker 00:
Because the prior Veterans Court, which we affirmed, remanded expressly

[00:32:30] Speaker 00:
for the board in the context of the reasonable analysis to look at this very cause just a good cause for us so you can't come to me now and argue that it's improper for the board to have done that because that's exactly what the subject of the prior case was that resulted in us affirming the remand.

[00:32:47] Speaker 02:
I was bringing it only to the attention of the court based upon the colloquy with the government about what the issue is in this matter and I'm simply trying to explain

[00:33:00] Speaker 02:
that the issue in terms of the original appeal got changed.

[00:33:06] Speaker 02:
And my client became the appellant instead of the intervener in a case in which he had prevailed before the agency and before the board.

[00:33:15] Speaker 02:
That's the only point that I was trying to make with that.

[00:33:18] Speaker 02:
And unless there's further questions by the court, I will sit down.

[00:33:22] Speaker 00:
I thank both counsel for their argument.

[00:33:24] Speaker 00:
This case is taken under submission.