[00:00:00] Speaker 02:
Our first case is Tara Goffney versus the Secretary of Veterans Affairs, 2022, 1130.

[00:00:07] Speaker 02:
Mr. Carpenter, come over.

[00:00:10] Speaker 04:
Good morning, Your Honor.

[00:00:12] Speaker 04:
May it please the Court, Kenneth Carpenter appearing on behalf of Tara Goffney.

[00:00:16] Speaker 04:
Ms.

[00:00:16] Speaker 04:
Goffney is an attorney who represented a veteran in proceedings before the agency following a final decision of the Board of Veterans' Appeals.

[00:00:25] Speaker 04:
She was successful in that representation and yet

[00:00:28] Speaker 04:
and secured for the veteran a service connection for his service-connected disability from post-traumatic stress disorder and with an initial rating of 70%.

[00:00:39] Speaker 04:
While still the attorney for the veteran, she filed what's called a TDIU application.

[00:00:47] Speaker 04:
That TDIU application was ultimately granted.

[00:00:50] Speaker 04:
It was not granted at the time in which she was actively representing the veteran.

[00:00:56] Speaker 04:
This case falls within the exception to the Williams criteria for finality.

[00:01:02] Speaker 04:
This is not a final decision for purposes of review by this court under the Williams criteria.

[00:01:10] Speaker 04:
I'm sorry?

[00:01:12] Speaker 02:
It does relate to application of law to fact.

[00:01:15] Speaker 02:
In fact, there was a remand for the board to address the correct facts in law.

[00:01:22] Speaker 04:
And that therein lies the problem and that's why this appeal was before this court because that remand order relies upon a misinterpretation of the regulation.

[00:01:34] Speaker 04:
The regulation dictates a binary choice.

[00:01:38] Speaker 00:
Well, why do you think that the Veterans Court decided the interpretation of the regulation?

[00:01:44] Speaker 00:
I understand that the government before the Veterans Court said you should remand to determine reasonableness and here they talk about the same thing.

[00:01:54] Speaker 00:
The Veterans Court though did not say that.

[00:01:56] Speaker 00:
The Veterans Court simply said remand to decide whatever the correct interpretation of the law is and its application.

[00:02:04] Speaker 00:
So that's wide open for you to argue about on remand.

[00:02:08] Speaker 00:
And so I'm having trouble seeing that there was even an implicit ruling by the Veterans Court on what, if anything, that regulation would require.

[00:02:19] Speaker 04:
Because the remand didn't come until the Veterans Court reversed the board's decision.

[00:02:25] Speaker 04:
And they reversed the board's determination that Ms.

[00:02:29] Speaker 04:
Goffney was not employed at the time in which the issue of TDIU was raised.

[00:02:34] Speaker 04:
That is the dispositive question under both the statute and the regulation.

[00:02:40] Speaker 00:
But for you to say it's dispositive is to assert a interpretation of the regulation of the legal regime.

[00:02:48] Speaker 00:
And I don't see that the Veterans Court even implicitly adopted a contrary view.

[00:02:53] Speaker 04:
Well, they did, Your Honor, by ordering the remand.

[00:02:57] Speaker 01:
They don't expressly say so, right?

[00:02:59] Speaker 01:
I mean, I'm sorry for interrupting you, but you agree.

[00:03:03] Speaker 01:
You're just saying plus it, right?

[00:03:04] Speaker 01:
Yes.

[00:03:06] Speaker 01:
I mean, doesn't that mean that it has to be clear that there's a clear legal ruling under the Williams standard?

[00:03:13] Speaker 04:
There is a clear legal ruling on the question that was presented by Ms.

[00:03:17] Speaker 04:
Goffney in her appeal.

[00:03:19] Speaker 04:
Her appeal was whether or not the board relied on misinterpretation

[00:03:23] Speaker 04:
relied upon a misinterpretation of the controlling regulation, which permitted her to charge and receive a fee.

[00:03:31] Speaker 04:
The Board of Veterans' Appeals interpreted that regulation incorrectly by looking to the alternative means for establishing entitlement, which was a notice of disagreement on or after the effective date of the amendment of 5904C.

[00:03:50] Speaker 04:
When that happens,

[00:03:52] Speaker 04:
there is a choice to be made.

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And the reason that we know that that choice was made favorably is that Ms.

[00:03:59] Speaker 04:
Goffney was granted a fee for the original scheduler rating.

[00:04:04] Speaker 04:
And when she was granted the fee, that was an acknowledgement and a finding of fact and binding case law by the nature of the case that in the case

[00:04:21] Speaker 04:
The agency found that she was entitled to a fee during the periods of time in which she represented based upon a first final board decision.

[00:04:32] Speaker 01:
I interrupted you in the middle of answering Judge Tronto's questions.

[00:04:36] Speaker 01:
I apologize for that.

[00:04:37] Speaker 01:
But did you have anything else you wanted to add in response to his question?

[00:04:41] Speaker 04:
Yes.

[00:04:42] Speaker 04:
But I'm sorry.

[00:04:43] Speaker 04:
I blanked on the question.

[00:04:45] Speaker 00:
Oh, I guess I was focusing on, I know that you're arguing that there was an implicit legal determination.

[00:04:53] Speaker 00:
And I guess I'm questioning that.

[00:04:54] Speaker 00:
I think you might well have had, I think I understand why that might well have been true, had the Veterans Court said what the government asked it to say and what the government now says, which is remand for the application of the regulation to determine the reasonable amount.

[00:05:12] Speaker 00:
But the Veterans Court didn't say that.

[00:05:14] Speaker 00:
The Veterans Court says remand is wanted for the board to apply the proper interpretation of the law to the correct facts in the first instance.

[00:05:23] Speaker 00:
And why is that not like saying there's a legal dispute here?

[00:05:28] Speaker 00:
We just think as a matter of prudence, the board or whoever should address that before we do.

[00:05:36] Speaker 04:
Because the secretary conceded that a error was made

[00:05:41] Speaker 04:
that Ms.

[00:05:42] Speaker 04:
Goffney was not in fact under the employment agreement that she had with the veteran.

[00:05:49] Speaker 04:
And the employment agreement under this statutory scheme, under 5904C, is what controls the authority to charge and receive a fee by an attorney.

[00:06:01] Speaker 04:
The agency found favorably that she was entitled to a fee based upon her representation following a final board decision.

[00:06:12] Speaker 04:
and paid her that fee.

[00:06:14] Speaker 04:
There was a change in representation, a denial of the original TDIU application, and then an award.

[00:06:21] Speaker 00:
With a few things crossing in the mail.

[00:06:23] Speaker 04:
Yeah, crossed during the night.

[00:06:26] Speaker 04:
But there is no factual dispute.

[00:06:28] Speaker 04:
And the court found and reversed the finding of fact made by the board that she was not employed and did not raise the issue of TDIU while employed by the veteran.

[00:06:42] Speaker 04:
That reversal is controlling the disposition of the case.

[00:06:47] Speaker 04:
That ends the controversy.

[00:06:49] Speaker 04:
There is nothing to remand to decide.

[00:06:52] Speaker 04:
Not the question of reasonableness, as the government asked and the lower court ignored, nor the question of any fact finding.

[00:07:01] Speaker 04:
There's only one fact.

[00:07:03] Speaker 04:
Was she doing her job?

[00:07:07] Speaker 04:
performing services for the veteran at the time in which the issue of TDIU was presented.

[00:07:14] Speaker 04:
And the court found and reversed the board's decision to the contrary.

[00:07:19] Speaker 04:
Once it did that, that ended the fee consideration.

[00:07:24] Speaker 04:
This court has interpreted 5904C in the rulemaking context

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in which this court has recognized that the only thing that 5904C does, and as an extension, the regulation does, is to identify the triggering event.

[00:07:46] Speaker 04:
And the triggering event in this case was the final board decision, which got her a fee.

[00:07:53] Speaker 04:
She was then entitled to a fee on the extended issue of whether the rating should or should not have been considered for TDIU.

[00:08:02] Speaker 01:
Mr. Carpenter?

[00:08:04] Speaker 01:
Yes, ma'am.

[00:08:04] Speaker 01:
On page A2, the court below says, because the claim is being re-inmanded, the court need not address Ms.

[00:08:10] Speaker 01:
Crosby's additional arguments that would lead to no broader remedy than a remand.

[00:08:14] Speaker 01:
What do you think the court was referring to there?

[00:08:18] Speaker 03:
I'm sorry.

[00:08:18] Speaker 03:
I didn't quite hear you, Your Honor.

[00:08:20] Speaker 03:
Where were you starting from?

[00:08:21] Speaker 01:
Page A2 of the record.

[00:08:23] Speaker 03:
A2.

[00:08:24] Speaker 01:
Last paragraph.

[00:08:27] Speaker 01:
First sentence.

[00:08:29] Speaker 01:
It says, because the claim is being remanded, the court need not address Ms.

[00:08:33] Speaker 01:
Goffney's additional arguments that would lead to no broader remedy than a remand.

[00:08:37] Speaker 01:
And I was asking you, what do you think the court was referring to there, as in specifically

[00:08:44] Speaker 01:
What are these Miss Coffney's additional arguments?

[00:08:48] Speaker 04:
There are no additional arguments, Your Honor.

[00:08:50] Speaker 01:
Well, could it be a legal interpretation argument?

[00:08:54] Speaker 04:
No, Your Honor, because the court could not have reversed if the court did not implicitly accept that the board relied upon a misinterpretation.

[00:09:04] Speaker 04:
The court, unfortunately, left that part out of its decision.

[00:09:08] Speaker 04:
There's no question about that.

[00:09:10] Speaker 04:
But the fact is that there was a reversal

[00:09:14] Speaker 04:
and then a remand.

[00:09:15] Speaker 04:
This is not a case in which the court was confronted with an issue and said, we're going to remand for a factual determination.

[00:09:23] Speaker 04:
The court below reversed the board decision without explicitly saying the ground.

[00:09:31] Speaker 04:
but did make a determination that there was an incorrect factual determination.

[00:09:37] Speaker 04:
That underlying factual determination is dispositive of the interpretation urged by Ms.

[00:09:43] Speaker 04:
Goffney before the Veterans Court.

[00:09:45] Speaker 01:
For what it's worth, I was reading the opinion as saying the board's decision is reversed because the board made an erroneous fact finding.

[00:09:55] Speaker 01:
And that fact finding being whether she was

[00:09:58] Speaker 01:
I guess representing, I think the specific fact was whether she was representing at the time that the TDIU claim was made.

[00:10:05] Speaker 01:
Was presented.

[00:10:05] Speaker 01:
That's it.

[00:10:06] Speaker 01:
And then nothing else was decided.

[00:10:09] Speaker 04:
But with all due respect to the court below, that was the end of the matter.

[00:10:14] Speaker 04:
There is nothing else to do.

[00:10:16] Speaker 01:
Maybe they wanted the board to say there's nothing else to do.

[00:10:19] Speaker 04:
No, Your Honor.

[00:10:20] Speaker 04:
The law controls 5904, and the Secretary's regulation controls the outcome of Ms.

[00:10:27] Speaker 04:
Goffney's appeal when she argued below that the regulation was misinterpreted because they picked the wrong alternative and required an NOD

[00:10:38] Speaker 04:
in order to be entitled to a fee.

[00:10:40] Speaker 04:
An NOD was not required because she was previously employed under a valid fee agreement, which the agency itself found valid and paid her fees for the representation of Mr. Moody, I believe is his name.

[00:10:56] Speaker 00:
Mr. Cooper, can I ask you a factual question?

[00:10:58] Speaker 00:
I know I might have to decide factual questions, but in February of 2016, the VA wrote to

[00:11:08] Speaker 00:
Mr. Moody and said, we paid you this TDIU amount.

[00:11:14] Speaker 00:
We should have subtracted $6,600 in change.

[00:11:17] Speaker 00:
We didn't.

[00:11:19] Speaker 00:
Unless we hear from you in 60 days, we're going to start recouping that from future payments, presumably so that the VA could then pay the

[00:11:29] Speaker 00:
the money that they paid the legal representative.

[00:11:33] Speaker 00:
Yes.

[00:11:33] Speaker 00:
Right.

[00:11:33] Speaker 00:
Do you know what happened?

[00:11:35] Speaker 00:
Did he pay it over to the legal representative?

[00:11:37] Speaker 00:
You have no idea.

[00:11:38] Speaker 04:
I have no idea, Your Honor.

[00:11:39] Speaker 04:
At the time that Ms.

[00:11:41] Speaker 04:
Goffney was discharged, there was no further communication with Mr. Boehner.

[00:11:46] Speaker 04:
Unless it's for the questions, I'll reserve the balance of my time.

[00:11:49] Speaker 02:
We will save it for you, Mr. Hellman.

[00:11:52] Speaker 05:
Good morning, Your Honor, and may it please the court.

[00:11:55] Speaker 05:
Appellant's view is that once the board remanded it, and once the Veterans Court remanded it, as a matter of operation of law, his client is entitled to fees.

[00:12:07] Speaker 05:
But that's not how the fee regime is meant to operate, and that's certainly not how it operates.

[00:12:14] Speaker 05:
In attempting to piggyback off an earlier fee determination, I think Ms.

[00:12:20] Speaker 05:
Goffney is trying to short circuit the process by saying,

[00:12:24] Speaker 05:
because there is a remand that implicitly found an error.

[00:12:27] Speaker 05:
That error no longer is present, and therefore, she's entitled to a funeral.

[00:12:32] Speaker 00:
What issues do you think are open on remand?

[00:12:38] Speaker 05:
So the remand

[00:12:40] Speaker 05:
only determined that the board's decision that she's not entitled to fees at all is incorrect.

[00:12:45] Speaker 05:
There's been no reasonableness determination.

[00:12:48] Speaker 00:
Has there been a determination that a reasonableness determination is required?

[00:12:52] Speaker 00:
Because if so, then I think Mr. Carpenter is correct that a legal ruling is implicit in the

[00:12:58] Speaker 00:
the Veterans Court decision.

[00:13:01] Speaker 05:
Could you ask that question again?

[00:13:05] Speaker 00:
Is he entitled to argue when he gets back to the board that the Veterans Court did not decide that there is a reasonableness requirement that has to be applied to my fees, not my fees, his client's fees?

[00:13:19] Speaker 00:
Because if you say that the Veterans Court precludes that argument, then the Veterans Court did, in fact, make a legal interpretation and

[00:13:28] Speaker 00:
we have a part one of the Williams test is satisfied.

[00:13:38] Speaker 05:
I don't think, as I understand it, I don't think the Veterans Court made that determination or that he's precluded from raising those issues on remand.

[00:13:49] Speaker 05:
The remand is, there is one error that, as the court pointed out, there's a factual error here.

[00:13:58] Speaker 05:
You didn't work for the veteran on the CDIU issue.

[00:14:02] Speaker 05:
You're not entitled to fees.

[00:14:04] Speaker 05:
Everybody agrees that that was incorrect.

[00:14:06] Speaker 05:
Nothing else has been decided.

[00:14:08] Speaker 05:
And so he's arguing that there's already been implicit.

[00:14:13] Speaker 00:
That is how I read the Veterans Court decision.

[00:14:15] Speaker 00:
But you started by saying the issues that have to be decided on remand are whether this was a reasonable fee.

[00:14:26] Speaker 00:
And I think you expressed some uncertainty about whether he gets to argue, no, that issue does not have to be decided.

[00:14:33] Speaker 00:
Case over.

[00:14:35] Speaker 05:
He can certainly argue that below.

[00:14:37] Speaker 00:
Without your arguing that the Veterans Court answers that contention against him.

[00:14:48] Speaker 05:
That's correct.

[00:14:48] Speaker 05:
The Veterans Court did not.

[00:14:50] Speaker 05:
address that.

[00:14:52] Speaker 05:
And I'm sorry if I misrepresented or misspoke.

[00:14:57] Speaker 05:
The Veterans Court simply said that the board decision was factually incorrect.

[00:15:03] Speaker 05:
Everything else is open.

[00:15:04] Speaker 05:
He can argue that the presumption entitles his client to

[00:15:10] Speaker 05:
to the fees without any determination of reasonableness, without anything.

[00:15:13] Speaker 05:
That's all open below that has not been decided.

[00:15:16] Speaker 05:
And so this case does not fit within the Williams exception for that reason.

[00:15:20] Speaker 05:
There has been no final rule on that issue.

[00:15:28] Speaker 00:
Do you happen to know what happened with the fees?

[00:15:34] Speaker 05:
I don't, Your Honor.

[00:15:36] Speaker 05:
In the appendix, it does not indicate after that letter whether Mr. Moody disagreed with that.

[00:15:42] Speaker 05:
I suspect that that's right.

[00:15:44] Speaker 05:
Yeah, I don't have an answer to it.

[00:15:49] Speaker 05:
But just to emphasize, there's a number of determinations that would be determined on remand, such as the things we talked about.

[00:16:07] Speaker 05:
At the outset, the court shouldn't hear the case because there's been no final VA decision.

[00:16:13] Speaker 05:
Ms.

[00:16:14] Speaker 05:
Goffney gets to go back and start over.

[00:16:15] Speaker 05:
She can alter arguments.

[00:16:19] Speaker 05:
The only thing that the Veterans Court decided is that the VA cannot say that she's not entitled to fees because she didn't work for Mr. Moody at the time of the decision.

[00:16:31] Speaker 05:
There's still a number of questions as to how that regulation applies.

[00:16:34] Speaker 05:
She can certainly erase all of them below.

[00:16:36] Speaker 05:
And certainly, just one other thing to point out is that the fee agreement itself contains a reasonableness provision that would apply if the representation was terminated prior to award.

[00:16:53] Speaker 05:
And there's been no determination as to what a reasonable fee allocation would be based on that agreement itself.

[00:17:00] Speaker 05:
So Ms.

[00:17:01] Speaker 05:
Goffney is arguing she's entitled to the entire 20% for the work that she performed here.

[00:17:07] Speaker 05:
without any consideration by anybody of whether that comports with the fee agreement or not.

[00:17:15] Speaker 05:
If this court has no further questions, we respectfully request that the appeal be dismissed.

[00:17:21] Speaker 02:
Thank you.

[00:17:23] Speaker 02:
Mr. Coppiter has some more little time.

[00:17:29] Speaker 04:
Your Honours, the problem with the government's argument is that they didn't answer Judge Toronto's question.

[00:17:33] Speaker 04:
What are the issues on remand?

[00:17:36] Speaker 04:
government never told you, because there are no issues.

[00:17:40] Speaker 04:
Now, the government suggests that there's an issue about reasonableness.

[00:17:44] Speaker 04:
But as this court has observed, the Veterans Court did not address that question.

[00:17:49] Speaker 04:
So there are no issues.

[00:17:52] Speaker 04:
There are no factual determinations to be made.

[00:17:55] Speaker 01:
Mr. Carpenter, can I ask you a question?

[00:17:58] Speaker 01:
Given everything that's been said today, how would you satisfy part three of the Williams test about a stand for risk

[00:18:06] Speaker 01:
that the issue wouldn't survive or remand?

[00:18:09] Speaker 04:
Because the remand could be granted on, excuse me, the entitlement to a fee could be granted on remand.

[00:18:20] Speaker 04:
And as a result, this legal issue would escape judicial review.

[00:18:24] Speaker 04:
Yes, Ms.

[00:18:24] Speaker 04:
Goffney would get the result that she believes she was intended to at the end of the Veterans Court proceedings.

[00:18:31] Speaker 04:
But that's not what the rule contemplates.

[00:18:35] Speaker 04:
What the Williams rule contemplates is, is that it will evade judicial review.

[00:18:40] Speaker 04:
And it will, quite possibly, and I think quite likely, evade judicial review.

[00:18:46] Speaker 04:
Because there is nothing to decide below.

[00:18:50] Speaker 04:
Under the correct interpretation of the regulation and the statute, because she was working for and performing services for Mr. Moody, she established her entitlement to charge a fee.

[00:19:04] Speaker 04:
The government, or excuse me, the VA has already agreed to that and paid her a fee.

[00:19:09] Speaker 04:
There are no factual determinations to be made.

[00:19:12] Speaker 04:
They've already made the calculation for what the past two benefits is.

[00:19:15] Speaker 04:
They paid those monies to the veteran, and they mistakenly didn't withhold from his successor representative, who was an agent and not an attorney.

[00:19:28] Speaker 04:
Therefore, there's nothing for the agency below to do

[00:19:33] Speaker 04:
except to grant.

[00:19:35] Speaker 04:
One other point that I would make is that the government said there's only one error, and that was that she didn't perform work for the veteran.

[00:19:46] Speaker 04:
That was not the error that was found.

[00:19:49] Speaker 04:
The error that was found, regardless of whether that was the error or not, what the court did was to reverse.

[00:20:00] Speaker 04:
They reversed the determination.

[00:20:03] Speaker 04:
implicitly that she was not entitled to a fee.

[00:20:07] Speaker 04:
Because reversing that factual determination would mean that that's an irrelevant material fact.

[00:20:14] Speaker 04:
But that is the only fact that is relevant.

[00:20:16] Speaker 04:
The key under both the statute and the regulation is that the attorney performs services for the veteran.

[00:20:24] Speaker 04:
And clearly by filing this TDIU application, Ms.

[00:20:28] Speaker 04:
Goffney performed services for Mr. Moody.

[00:20:31] Speaker 04:
Let's just for the questions from the panel.

[00:20:33] Speaker 04:
Thank you very much, Your Honor.

[00:20:35] Speaker 02:
Thank you, Mr. Carpenter.

[00:20:36] Speaker 02:
The case is submitted.