[00:00:00] Speaker 00:
Goss versus McDonough.

[00:00:02] Speaker 00:
Mr. Carpenter, please proceed.

[00:00:05] Speaker 05:
May it please the court.

[00:00:05] Speaker 05:
Kenneth Carpenter appearing on behalf of Robert Goss.

[00:00:10] Speaker 05:
Mr. Goss's appeal presents a question of law to this court concerning whether or not the Veterans Court had jurisdiction over his appeal of a board decision which exceeded its jurisdiction.

[00:00:22] Speaker 05:
There is no dispute that the board exceeded its jurisdiction on one of two issues before the board.

[00:00:29] Speaker 05:
Mr. Goss directs this court's attention.

[00:00:32] Speaker 00:
Well, don't you just ask, in terms of exceeding the jurisdiction, you agree that the board would have had the authority under the statute to review a decision if a decision had been made by the secretary, or in this case, the VA, or the OGC.

[00:00:45] Speaker 05:
Oh, he has, on the issue of reasonableness?

[00:00:47] Speaker 05:
Right.

[00:00:48] Speaker 05:
Oh, yes, sir.

[00:00:48] Speaker 05:
OK.

[00:00:49] Speaker 00:
So the board would have had the authority to review a decision ultimately.

[00:00:53] Speaker 00:
Right.

[00:00:53] Speaker 00:
But you're saying they didn't because that predicate didn't happen.

[00:00:57] Speaker 05:
Well, because there's a regulatory procedure in which either the Office of the General Counsel or the veteran can make a request in writing within 120 days of the final action of the VA.

[00:01:14] Speaker 00:
Well, and we do agree, right, that the veteran did make a request in writing within 120 days, don't we?

[00:01:22] Speaker 05:
For a notice of appeal, Your Honor, on the issue decided by the board, which was limited to the question of eligibility, excuse me, by the VA on the issue of eligibility.

[00:01:35] Speaker 02:
It's your view that the veteran did not ask for a reasonableness determination?

[00:01:40] Speaker 05:
That is correct, Your Honor.

[00:01:42] Speaker 05:
And that's part of what the

[00:01:44] Speaker 00:
uh... was the basis for what about on page two twelve of the appendix you have that handy the title of the document the document is attorney fees are not authorized

[00:01:57] Speaker 00:
And then in the document, Mr. Casey in his handwritten note, which was accepted by the VA, his note is dated October 5th of 2011, which was within 120 days.

[00:02:09] Speaker 00:
And it was dated by the VA October 21st of 2011, which is still within 120 days.

[00:02:15] Speaker 00:
But in this note, he says, Attorney Bass was fired after only a few months because of poor performance.

[00:02:23] Speaker 00:
I did not have any forms signed in the right place.

[00:02:26] Speaker 00:
He never met with me to discuss my case.

[00:02:28] Speaker 00:
I let him go.

[00:02:29] Speaker 00:
I do not agree to this payment of $18,000 because he never performed any work on my case for me.

[00:02:38] Speaker 00:
Wouldn't you normally be standing here telling me, look, how could they not interpret this in a liberal way, as they're supposed to with pro se veterans, to amount to a dispute over reasonableness?

[00:02:53] Speaker 05:
Because there is a separate statutory and regulatory procedure for seeking review for reasonableness.

[00:03:01] Speaker 00:
What is that set?

[00:03:02] Speaker 00:
Can you show me that?

[00:03:02] Speaker 05:
Where is that?

[00:03:03] Speaker 05:
The regulatory provision is at 38 CFR 14 636 small i. Okay, is that the part where it says... That's the 120-day limitation.

[00:03:18] Speaker 00:
Okay, but that little piece of paper was within 120 days.

[00:03:21] Speaker 05:
But it was not submitted as required by the regulation to the Office of the General Counsel at the Office of the General Counsel.

[00:03:30] Speaker 00:
Let me ask a stupid question.

[00:03:32] Speaker 00:
Again, what I love about you is you're usually here representing the veterans.

[00:03:35] Speaker 00:
So I know that you're going to be cautious here, because the last thing you want to do is make it much harder for veterans, while you nonetheless have to zealously defend your current plan.

[00:03:45] Speaker 00:
I get that.

[00:03:46] Speaker 00:
But where, if at all, was there a notice

[00:03:52] Speaker 00:
to this veteran that he had a right to appeal this.

[00:03:57] Speaker 00:
There's no doubt this letter constitutes a valid appeal in my mind, but your point is well taken that it wasn't filed in the exactly right place.

[00:04:07] Speaker 00:
It was timely filed with the VA, but not with the office of general counsel.

[00:04:12] Speaker 00:
How would a veteran know

[00:04:15] Speaker 00:
that they're supposed to file this letter, not with the VA, which is what he did, but with the VA's Office of General Counsel in particular.

[00:04:23] Speaker 00:
I am usually 100% on your side in terms of notice to veterans, and duties to assist, and all of that.

[00:04:32] Speaker 00:
So did the government fail this veteran here?

[00:04:34] Speaker 00:
Or was he told at some point, because I can't find it in the record, was he told or informed what the proper process part of this should have been?

[00:04:44] Speaker 05:
We are not sure I can entirely answer that question.

[00:04:47] Speaker 05:
I can offer some speculation as to what might have happened.

[00:04:51] Speaker 05:
But I will tell this court that this entire proceeding, which was before the board, was predicated only on an appeal of the eligibility or the correctness of the VA's decision that Mr. Goss was entitled to the fee which the VA decided he was entitled to be paid.

[00:05:16] Speaker 05:
With that as the background of this particular case.

[00:05:20] Speaker 00:
When did the VA decide he was entitled to be paid that fee?

[00:05:24] Speaker 00:
I am concerned, much like you've argued, that this case is in fact not moot, just so you know.

[00:05:34] Speaker 00:
I have a legitimate concern that this case may not be moot and that Mr. Goss may well be

[00:05:41] Speaker 00:
continuing to live in a scenario in which at some point the hammer could drop and that he has a right to have some resolution so I mean this is where I'm coming from and you know I tell you where I am all the time so this is where I'm coming from so the question is where is it that you believe in this record they told Mr. Goss as you suggested about this they made a determination the secretary made a determination that he was entitled to that fee

[00:06:10] Speaker 05:
I believe it's in the appendix at pages 217 to 218.

[00:06:35] Speaker 05:
And the VA uses a

[00:06:39] Speaker 05:
unusual format that's not the same format that they use for normal rating decisions, but this was the decision which informed Mr. Casey that Mr. Goss had a valid fee agreement that was properly filed and that he was, and that the $18,000 plus was withheld and that if he disagreed with that decision, he could file a notice of disagreement.

[00:07:08] Speaker 00:
Okay, so I agree.

[00:07:10] Speaker 00:
And this is dated September 30th of 2011.

[00:07:13] Speaker 00:
And what it says is, in closed form, VA 4107C, your rights to appeal, explains your right to appeal.

[00:07:21] Speaker 00:
Unfortunately, that wasn't attached.

[00:07:22] Speaker 00:
And I don't have any clue what that looks like.

[00:07:24] Speaker 05:
It's simply a standardized form that explains to the veteran that they have the right to file an appeal.

[00:07:31] Speaker 05:
And because this is a... Oh, with whom?

[00:07:33] Speaker 00:
With whom?

[00:07:34] Speaker 05:
With the regional office.

[00:07:36] Speaker 00:
And that's what he did.

[00:07:37] Speaker 00:
That's that letter I was pointing you to in 212.

[00:07:38] Speaker 05:
That's correct.

[00:07:40] Speaker 05:
And you don't file a notice of disagreement under 14636.

[00:07:47] Speaker 05:
You file a request for review for reasonableness.

[00:07:51] Speaker 05:
Now, had that document been sent to the OGC,

[00:07:56] Speaker 05:
then the OGC would have been required under that regulation to review whether or not the fee was reasonable.

[00:08:05] Speaker 01:
Are there any general sort of forms or websites that tell the veteran to actually interact with OGC on these issues?

[00:08:15] Speaker 05:
I know that the OGC has a website or the VA has a website in which

[00:08:21] Speaker 05:
the rights of veterans to obtain this kind of review are posted on the website.

[00:08:30] Speaker 05:
But other than the website, I do not believe there is any, what would be the right word, pro forma notice that is sent out as the notice was sent out to this decision on the disposition on the entitlement to the fee.

[00:08:47] Speaker 02:
What is the sense of determination on reasonableness has been made?

[00:08:51] Speaker 05:
I'm sorry.

[00:08:52] Speaker 02:
Do you think a determination on reasonableness has been made?

[00:08:55] Speaker 02:
No.

[00:08:56] Speaker 05:
No, no.

[00:08:59] Speaker 05:
The regulation is fairly clear that some action needs to be initiated by either the claimant or the office of the general counsel.

[00:09:12] Speaker 05:
Neither of those two things happen.

[00:09:14] Speaker 05:
So no one was on any notice until the board in the decision on appeal to the Veterans Court

[00:09:20] Speaker 05:
Decided that they were going to Sue Espante go to that issue.

[00:09:24] Speaker 00:
Well, hold on.

[00:09:25] Speaker 00:
I'm a little confused.

[00:09:26] Speaker 00:
So you said I'm a little confused because you said no one was on notice, but what about that 2012 I just told you about?

[00:09:34] Speaker 00:
Clearly that looks like Mr. Goss complaining about the reasonableness of the fee.

[00:09:38] Speaker 05:
Mr. Casey.

[00:09:39] Speaker 00:
Casey, sorry.

[00:09:39] Speaker 00:
That's all right.

[00:09:40] Speaker 05:
That's all right.

[00:09:42] Speaker 05:
It most certainly does, Your Honor.

[00:09:46] Speaker 05:
Clearly, if I were not representing Mr. Goss and I were representing Mr. Casey, I would be making that kind of argument.

[00:09:56] Speaker 05:
But the problem was is that Mr. Casey chose not to be represented and filed this appeal.

[00:10:02] Speaker 05:
It went to the board.

[00:10:04] Speaker 05:
And there was no one there, to be perfectly candid, to advocate for him to say, look,

[00:10:10] Speaker 05:
This is what I filed and it should have been accepted.

[00:10:14] Speaker 05:
I'm not sure that the board would have the authority to have accepted it.

[00:10:18] Speaker 01:
What is the specific relief you are seeking for Mr. Goss here?

[00:10:24] Speaker 05:
For this court to reverse the decision made by the Veterans Court that it lacked jurisdiction and remand with instructions to the Veterans Court to reverse

[00:10:41] Speaker 05:
not dismiss, reverse the board's decision that exceeded its jurisdiction, and modify the decision of the board to deny Mr. Casey's appeal.

[00:10:59] Speaker 00:
OK, so that was a lot of mouthful for me.

[00:11:02] Speaker 00:
And I didn't get it exactly.

[00:11:04] Speaker 00:
So I'm going to ask you to restate it.

[00:11:05] Speaker 00:
But first, let me just say, is the underlying concern here that Mr. Goss has

[00:11:10] Speaker 00:
that somebody at some point, this is not over, and that somebody at some point is going to try to claw this money back from him.

[00:11:18] Speaker 00:
Is that the underlying concern that motivates his being here today?

[00:11:22] Speaker 05:
Well, that is one of his concerns.

[00:11:25] Speaker 05:
His other concern is that he, under 51, excuse me, forgot the regulation, 7105A, it is brought into

[00:11:40] Speaker 05:
Mr. Casey's appeal, involuntarily.

[00:11:44] Speaker 05:
He has to participate in that to defend the award of fees that were made to him.

[00:11:52] Speaker 05:
As a consequence, this case has lingered for many years now, and the final disposition was that the board exceeded its jurisdiction.

[00:12:02] Speaker 05:
He appeals to court.

[00:12:04] Speaker 00:
I said, wait, so you don't think the board exceeded its jurisdiction, or you do?

[00:12:07] Speaker 05:
Oh, I do, Your Honor.

[00:12:09] Speaker 00:
Most certainly.

[00:12:10] Speaker 00:
If the board exceeded its jurisdiction.

[00:12:12] Speaker 05:
By addressing a matter that was not in the notice of appeal that was filed on the question of eligibility.

[00:12:21] Speaker 05:
The only matter within the board's jurisdiction under 7104 was the appeal by Mr. Casey of whether or not Mr. Goss was entitled to a fee.

[00:12:33] Speaker 02:
Is that the document A212?

[00:12:36] Speaker 02:
That is what

[00:12:38] Speaker 02:
delineates what was at issue on appeal, in your view?

[00:12:43] Speaker 05:
I'm sorry, Appendix 212?

[00:12:45] Speaker 00:
That's that handwritten thing.

[00:12:48] Speaker 02:
That's the handwritten note.

[00:12:49] Speaker 05:
Oh, oh.

[00:12:50] Speaker 05:
Yes, yes.

[00:12:52] Speaker 05:
And that was a notice of disagreement with the fee decision that precedes it.

[00:13:04] Speaker 05:
I lost the page, Your Honor, I'm sorry.

[00:13:08] Speaker 00:
217.

[00:13:09] Speaker 00:
217.

[00:13:09] Speaker 00:
So 217 is the fee decision, and then you understand that 212 is basically a notice of disagreement with that decision, and so you think that the Board had an obligation to review this notice of disagreement, though, but you think that they, what, exceeded their authority to the extent they've reached the reasonableness issue?

[00:13:27] Speaker 00:
Yes.

[00:13:28] Speaker 00:
And how is the reasonableness issue not subsumed within

[00:13:31] Speaker 00:
the eligibility determination.

[00:13:33] Speaker 05:
Because it is a separate statutory and regulatory provision.

[00:13:37] Speaker 05:
Congress provided by statute, I believe it's 5905, to require or to permit a claimant or the secretary to seek review of the reasonableness of the fees sought in a fee agreement.

[00:13:52] Speaker 05:
That statutory authority, it was then codified by the secretary

[00:13:58] Speaker 05:
And instead of the secretary assuming those responsibilities, concurrent with the determination of eligibility, he appointed his general counsel to act in a proceeding that is outlined in 14 636 I. Now the statute from 2006 to 2017, I think that said, gave concurrent jurisdiction to the board to make reasonableness determinations, right?

[00:14:30] Speaker 05:
Give me those years again, Your Honor.

[00:14:38] Speaker 05:
I don't believe that's correct, Your Honor, but I'm sorry, I don't recall the...

[00:14:44] Speaker 05:
a precise effective date of the statutory change.

[00:14:47] Speaker 02:
You said earlier that Mr. Gross was going to have to participate in Mr. Case's appeal regarding the fees.

[00:14:54] Speaker 02:
Could you elaborate on that a little bit?

[00:14:56] Speaker 05:
Yes, Your Honor.

[00:14:57] Speaker 05:
There is a case before this court that I lost by the name of Mason.

[00:15:02] Speaker 05:
And in Mason, this court affirmed the statutory provision under 38 USC 7105A, in which

[00:15:14] Speaker 05:
The secretary interpreted that regulation to include attorneys.

[00:15:21] Speaker 05:
That statutory provision is for simultaneously contested claims in which there are two claimants seeking the same benefit.

[00:15:31] Speaker 05:
In Mason, this court affirmed that interpretation of the statute, which then requires that when, as here,

[00:15:41] Speaker 05:
a veteran initiates an appeal on a favorable fee decision that the attorney must participate as a co-claimant.

[00:15:53] Speaker 05:
He is recognized as a simultaneously confessor.

[00:15:57] Speaker 02:
So he is a co-claimant in another case.

[00:15:59] Speaker 02:
He's a co-claimant in a different case?

[00:16:01] Speaker 05:
In the appeal that Mr. Casey brought to the board on the sole issue of the eligibility to charge the fee that was granted by the VA.

[00:16:12] Speaker 05:
And Your Honor, to be perfectly candid with you, part of why I try to litigate these issues is that this is a nightmare of a statutory and regulatory scheme in which no party, appellant or claimant, knows, understands precisely what's going on

[00:16:37] Speaker 05:
because they created two separate roadways.

[00:16:41] Speaker 00:
Upon that, we agree.

[00:16:43] Speaker 05:
And I simply have a client who took a valid appeal under 7104, or excuse me, under 7252.

[00:16:54] Speaker 05:
And under 7266, he was adversely affected by the board having exceeded its jurisdiction.

[00:17:02] Speaker 01:
Do you have a citation for his joint appendix site or otherwise that shows he's a co-climate

[00:17:07] Speaker 05:
Only that statutory provision which is at 7105 capital A and is referred to in our briefs.

[00:17:16] Speaker 01:
You have nothing else you can point us to to show that he is currently a co-claimant?

[00:17:20] Speaker 01:
Like I'm just looking for something... Oh, I see.

[00:17:22] Speaker 05:
I see what you're saying.

[00:17:24] Speaker 05:
Well, if you look at Appendix 28, the case is titled

[00:17:37] Speaker 05:
This is the board's decision.

[00:17:40] Speaker 05:
I'm sorry, that's the board's decision from 2020.

[00:17:42] Speaker 05:
In the matter of the fee agreement of Robert Gost in the claim of John Casey.

[00:17:51] Speaker 05:
And therefore, there are two simultaneously contested claimants under 7105.

[00:17:59] Speaker 05:
Now, in my view, this is a very deceptive way of explaining, or not explaining, but communicating that there are two claimants in this matter.

[00:18:12] Speaker 05:
But I am saying that by framing the caption of the case before the board in that fashion, they are complying with the requirements of 7105A, which was affirmed by this court in its mason.

[00:18:32] Speaker 00:
Okay, let's take some time for rebuttal.

[00:18:34] Speaker 00:
Let's hear from the government.

[00:18:54] Speaker 04:
Good morning, Your Honors.

[00:18:55] Speaker 04:
May it please the Court.

[00:18:57] Speaker 04:
This court should dismiss this appeal on mutinous grounds because the Veterans Court vacated the only portion of the board decision adverse to Mr. Goss.

[00:19:06] Speaker 04:
In the alternative, this court should affirm the Veterans Court decision.

[00:19:10] Speaker 02:
On the first point... What is your view on whether there's a reasonable misdetermination in this case?

[00:19:15] Speaker 04:
Well, there was at the board, but they were acting outside their jurisdiction.

[00:19:19] Speaker 02:
So there is... But there's otherwise...

[00:19:22] Speaker 02:
So since that has been vacated right now, is there a reasonableness determination in this case?

[00:19:27] Speaker 04:
No, Your Honor, and Mr. Goss... So no one has ever decided reasonableness?

[00:19:32] Speaker 04:
That's right, Your Honor.

[00:19:33] Speaker 00:
So did you look at page 212?

[00:19:35] Speaker 04:
I did, yes, Your Honor.

[00:19:36] Speaker 00:
Doesn't it look like this veteran is challenging the reasonableness of the fee award?

[00:19:41] Speaker 00:
Well... You're hedging?

[00:19:43] Speaker 00:
Why are you hedging?

[00:19:44] Speaker 00:
Certainly at the time... There are going to be things that you're going to have to admit in court, because you're an officer of the court, even though you don't want to.

[00:19:52] Speaker 00:
But remember, you're an officer of the court.

[00:19:54] Speaker 00:
So why are you hedging?

[00:19:56] Speaker 00:
In what universe is that document not a challenge to the reasonableness of the fee award?

[00:20:02] Speaker 04:
Certainly, I think if I could pull it up.

[00:20:04] Speaker 04:
Sure, go ahead.

[00:20:07] Speaker 04:
I know there's language that she didn't deserve the award, I believe, I think is what the language was.

[00:20:11] Speaker 02:
So you would have the pro se veteran have to use the word reasonableness?

[00:20:18] Speaker 04:
Pull it up.

[00:20:19] Speaker 04:
It's here, Your Honor, on page 212.

[00:20:21] Speaker 04:
And I do believe there was language.

[00:20:25] Speaker 04:
If you'd just allow me one moment.

[00:20:27] Speaker 04:
Absolutely.

[00:20:30] Speaker 00:
He never met with me to discuss my case.

[00:20:33] Speaker 00:
He never performed any work for me on my case.

[00:20:40] Speaker 00:
And the title of the document is, these attorney's fees are not authorized.

[00:20:44] Speaker 04:
Right.

[00:20:45] Speaker 04:
So I think, Your Honor's correct, standing here today does look like this could be construed as a challenge to the reasonableness.

[00:20:53] Speaker 00:
How would you construe it?

[00:20:55] Speaker 04:
I would construe it as a challenge to the reasonableness determination.

[00:20:58] Speaker 00:
And don't you have an obligation to liberally construe?

[00:21:02] Speaker 00:
It's a handwritten note by a veteran.

[00:21:06] Speaker 04:
Right, Your Honor.

[00:21:08] Speaker 04:
So the VA has not construed this, as Your Honor knows, as a reasonableness challenge.

[00:21:13] Speaker 04:
And Mr. Casey hasn't pressed his rights.

[00:21:16] Speaker 04:
He was aware of the proceedings at the board.

[00:21:19] Speaker 04:
He was aware of the proceedings at the Veterans Court.

[00:21:21] Speaker 04:
He chose not to intervene.

[00:21:23] Speaker 02:
And at no point... Why do you say the board didn't construe this as a reasonableness challenge?

[00:21:28] Speaker 02:
Well, I'm not sure... The board asked the VA repeatedly to determine reasonableness.

[00:21:35] Speaker 02:
I'm sorry your honor.

[00:21:36] Speaker 02:
Didn't the board repeatedly ask the VA to determine reasonableness?

[00:21:41] Speaker 04:
I don't recall that being a request made by the board.

[00:21:46] Speaker 04:
I think the parties were in agreement that this did not originate from the VA OGC as the regulations require and accordingly the board what was without jurisdiction to decide the issue of reasonable.

[00:22:00] Speaker 00:
Okay hold on for a sec here.

[00:22:01] Speaker 00:
Hey, Liz, where's the first time that the board asked the VA to determine reasonableness, please?

[00:22:09] Speaker 00:
Thank you.

[00:22:10] Speaker 00:
Let's turn to page 142.

[00:22:11] Speaker 00:
So I will note that this is one of the very next documents

[00:22:31] Speaker 00:
that followed the page 212 handwritten note in which Mr. Casey wrote what you and I just agreed we would have both construed as a challenge to reasonableness.

[00:22:43] Speaker 00:
And so on page 142, what does the board in paragraph two expressly ask the VA to do?

[00:22:50] Speaker 00:
I'm waiting for you to tell me.

[00:22:56] Speaker 00:
You don't have to read the whole thing out loud.

[00:22:58] Speaker 00:
You can just tell me what you understand in that paragraph to me.

[00:23:00] Speaker 04:
Thank you.

[00:23:01] Speaker 04:
Just give me one moment, please.

[00:23:11] Speaker 04:
It appears that the board is asking for an itemized account for reasonable attorney's fees and expenses.

[00:23:18] Speaker 00:
Why do you think they might have done that if they weren't trying to assess the reasonableness?

[00:23:27] Speaker 00:
And answer my question.

[00:23:30] Speaker 00:
What other purpose could there be for that paragraph other than the fact that the board understood page 212 to be questioning reasonableness, and so now they're pushing it back, and they're telling the VA, you have to get, and they even used the word reasonable, right?

[00:23:45] Speaker 00:
An itemized list from this attorney to see if these fees are reasonable.

[00:23:48] Speaker 00:
Right.

[00:23:49] Speaker 00:
OK, so what do you think happened in response to this request?

[00:23:53] Speaker 00:
I don't know, Your Honor.

[00:23:54] Speaker 00:
Actually, you do know, because the board told us.

[00:23:56] Speaker 00:
what page is so on this the this is back from the VA they say basically

[00:24:27] Speaker 00:
unless I'm mistaken, that they ordered Mr. Goss to produce stuff and he presented nothing.

[00:24:40] Speaker 02:
That's also at page 837 of the board's opinion.

[00:24:45] Speaker 00:
Yeah, on page 837 of the board's opinion is a nice place to look because it's where they tell us, because I was going to walk you through and Judge Stoll just jumped us to the punch line, which was very kind of her.

[00:24:59] Speaker 00:
Because what it explains on page 37 is that this little back and forth occurred three separate times.

[00:25:06] Speaker 00:
There were three separate instances in which the VA demanded that this attorney produce evidence of the reasonableness of his fee amount.

[00:25:18] Speaker 00:
And what the board found ultimately is that their request in 2016 and 2017 and later in 2017, the attorney simply refused

[00:25:28] Speaker 00:
to produce any such evidence.

[00:25:32] Speaker 00:
So why isn't Mr. Goss correct?

[00:25:34] Speaker 00:
I asked Mr. Carpenter whether he's concerned that there continues to exist an unadjudicated question in this case about whether Mr. Goss is entitled to keep that fee award.

[00:25:50] Speaker 00:
Why isn't he correct that this case is not moot?

[00:25:53] Speaker 00:
because there does continue to exist an unadjudicated question.

[00:25:56] Speaker 00:
I understand from you that your answer to me is because the government has stuck its hands in his pocket and turned its back on everybody and just isn't doing anything about it.

[00:26:05] Speaker 00:
And so your answer is Mr. Goss should go away and stop worrying that the government's going to claw the FEMAC from him because the government has decided to take no action whatsoever.

[00:26:15] Speaker 00:
Is that your answer?

[00:26:16] Speaker 00:
Is that why this case is moot?

[00:26:19] Speaker 04:
No, Your Honor.

[00:26:20] Speaker 04:
I think there's a long line of

[00:26:22] Speaker 04:
mutinous cases that say that some possible future event isn't sufficient to make a case suitable for judicial review until that event happens.

[00:26:33] Speaker 04:
Because at this point, your honor, nobody is challenging the reasonableness determination.

[00:26:37] Speaker 04:
There is no determination.

[00:26:38] Speaker 04:
No one's challenging the reasonableness of the fee.

[00:26:41] Speaker 04:
Nobody's challenging the eligibility, whether or not Mr. Goss and Mr. Casey did.

[00:26:46] Speaker 00:
Why is that?

[00:26:48] Speaker 04:
Why is nobody challenging it?

[00:26:49] Speaker 00:
Mr. Goss and Mr. Casey did.

[00:26:52] Speaker 00:
On page 212, he challenged it.

[00:26:54] Speaker 00:
The board understood it to be a challenge.

[00:26:56] Speaker 00:
The board told the VA three times to act on it.

[00:26:59] Speaker 00:
Only in frustration, after the VA refused to act, did the board issue its prior opinion.

[00:27:05] Speaker 04:
Well, certainly one of two things could happen, Your Honor.

[00:27:07] Speaker 04:
Mr. Casey could go to the OGC and say this was a... How was he supposed to know that?

[00:27:12] Speaker 00:
What document did you all give this veteran that lets him know where his proper route of appeal is?

[00:27:19] Speaker 04:
So at the time in 2011, I'm not sure that there was that kind of notice that Your Honor asked about.

[00:27:26] Speaker 04:
Now there is, but of course that wouldn't have helped Mr. Casey in 2011.

[00:27:30] Speaker 04:
But certainly Mr. Casey was familiar with the board proceeding.

[00:27:32] Speaker 04:
He was also familiar with the Veterans Court proceeding.

[00:27:35] Speaker 04:
He chose not to intervene.

[00:27:36] Speaker 04:
And so he is within his rights.

[00:27:38] Speaker 00:
Well, I mean, is it possible a poor man gave up?

[00:27:41] Speaker 00:
I mean, I surely would.

[00:27:42] Speaker 00:
At what point do you just give up and say, OK, I found my documents.

[00:27:47] Speaker 00:
Even the government asked the VA three times to do something, and they refused to do it.

[00:27:53] Speaker 04:
Well, unfortunately, we just don't know his side of the story because he's decided not to intervene at these different states.

[00:27:58] Speaker 00:
But you know his side of the story?

[00:27:58] Speaker 00:
We do know the government's side.

[00:28:00] Speaker 00:
And the government sucks in this case.

[00:28:03] Speaker 00:
You have completely failed Mr. Casey and Mr. Goss because you failed to do your job.

[00:28:09] Speaker 04:
Well, Mr. Goss has the money, so.

[00:28:11] Speaker 00:
Oh, so Mr. Goss has the money, so he's all good?

[00:28:14] Speaker 00:
Why is he here in court then today?

[00:28:15] Speaker 00:
He's here in court because he's worried that this case is a moot, and he's worried that someone's going to claw the money back from him.

[00:28:20] Speaker 04:
In our response, Your Honor, would be that worry is insufficient to establish jurisdiction at this time.

[00:28:26] Speaker 04:
Until there is a tangible threat to his rights, the case is not ready for judicial review.

[00:28:35] Speaker 04:
Certainly, Your Honor, Mr. Case, you could, within 120 days of the conclusion of this case, file a reasonableness challenge.

[00:28:42] Speaker 01:
What is your response to the claim that is made by opposing counsel that Mr. Goss is subject as a co-claimant?

[00:28:50] Speaker 01:
I think he points us to Appendix Page 28 to support that.

[00:28:54] Speaker 04:
Right.

[00:28:54] Speaker 04:
They're going after the same pot of money, specifically the attorney's fees.

[00:29:01] Speaker 04:
But I don't understand.

[00:29:05] Speaker 04:
I don't read that to be some sort of impact on Mr. Goss's rights.

[00:29:10] Speaker 04:
They both appeared at the board.

[00:29:12] Speaker 04:
They both had the opportunity to appear at the Veterans Court, and Mr. Casey chose not to do so.

[00:29:18] Speaker 04:
So their status as a co-claimant, I don't believe has any bearing on this case.

[00:29:22] Speaker 00:
Am I right in understanding that right before you answered Judge Cunningham's question, you said, within 120 days of the resolution of this case,

[00:29:30] Speaker 00:
Mr. Casey could come in and file a request, either with OGC or with the secretary, and file some sort of thing saying that this wasn't a reasonable fee?

[00:29:40] Speaker 04:
Yes, Your Honor.

[00:29:41] Speaker 04:
Or the VA on its own motion could make that motion as well.

[00:29:49] Speaker 00:
Why didn't they?

[00:29:51] Speaker 04:
Why didn't they?

[00:29:52] Speaker 00:
You represent the government.

[00:29:54] Speaker 00:
Why didn't it?

[00:29:56] Speaker 00:
Either the VA or OGC at any point in this process could independently determine to undertake an assessment of reasonableness.

[00:30:05] Speaker 00:
Why didn't they?

[00:30:07] Speaker 04:
Throughout the course, they interpreted his challenge as an eligibility challenge, Your Honor.

[00:30:12] Speaker 00:
Even though you and I both read it and neither of us can, with any kind of straight face, say it's not a challenge to reasonableness.

[00:30:20] Speaker 04:
Again, I understand that they were waiting for the eligibility piece to play out.

[00:30:25] Speaker 00:
All right, so let me direct you to one last thing here.

[00:30:28] Speaker 00:
So you're telling me that there was no reasonableness determination that was ever made in this case by the secretary or OGC, correct?

[00:30:43] Speaker 04:
Yes, Your Honor.

[00:30:44] Speaker 00:
Okay.

[00:30:44] Speaker 00:
Let's turn to the statute.

[00:30:45] Speaker 00:
5904.

[00:30:46] Speaker 00:
Do you have it in front of you?

[00:30:48] Speaker 04:
If you give me one moment, I'll have it up.

[00:30:50] Speaker 04:
Absolutely.

[00:30:54] Speaker 00:
And this is the statute Judge Stoll asked Mr. Carpenter about.

[00:30:59] Speaker 00:
The version that existed in 2006 and continued to exist all the way in 2017 allowed for parallel tracks, either the secretary or the board could pursue reasonableness.

[00:31:12] Speaker 00:
Is that correct?

[00:31:15] Speaker 00:
What were those years, Your Honor?

[00:31:17] Speaker 00:
2006 to 2017.

[00:31:19] Speaker 00:
The version of the statute in place at that time

[00:31:23] Speaker 00:
allowed either the secretary or the board to undertake a reasonableness assessment.

[00:31:29] Speaker 00:
Is that correct?

[00:31:30] Speaker 04:
Yes, Your Honor.

[00:31:30] Speaker 04:
And I believe it had to originate, though, in the first instance from the Office of the General Counsel.

[00:31:35] Speaker 00:
No, not the original.

[00:31:36] Speaker 00:
I'm talking about the original statute, not the current statute.

[00:31:39] Speaker 00:
The original statute doesn't say anything about the General Counsel, right?

[00:31:42] Speaker 00:
The 2006 to 2017 version of 5904

[00:31:49] Speaker 00:
says the board can, on its own motion, or at the request of either party, review a fee agreement and order a reduction in the fee called for if the board signs the fee excessive or unreasonable.

[00:31:59] Speaker 00:
So that is independent.

[00:32:01] Speaker 00:
Then there's a separate section.

[00:32:03] Speaker 00:
The secretary may, on its own motion, do the same thing.

[00:32:06] Speaker 00:
So you have, not there originally, two different provisions that gave the board the authority to do it, not something that originated in OGC, but of its own accord,

[00:32:16] Speaker 00:
And the secretary, the authority to do it on its own accord.

[00:32:19] Speaker 00:
Either one could have.

[00:32:21] Speaker 04:
I'm not familiar with that version of the statute, Your Honor.

[00:32:25] Speaker 04:
I do have the statute in front of me.

[00:32:27] Speaker 02:
If you don't have one, do you have?

[00:32:28] Speaker 02:
What version is it?

[00:32:29] Speaker 04:
I assume my paralegal printed out the... Can you see the authentic data on the front?

[00:32:36] Speaker 04:
Let's see, Your Honor.

[00:32:38] Speaker 00:
I'm going to give you my copy for a sec so you can look at it here.

[00:32:42] Speaker 00:
This is my copy of the statute.

[00:32:44] Speaker 00:
It says the effective date of 2006.

[00:32:46] Speaker 00:
And you'll just take my word for it that it went through 2017.

[00:32:50] Speaker 00:
You can just turn to where I have the flag and the highlighting.

[00:32:53] Speaker 00:
And you should be able to see that there are two different provisions, one of which allows a direct review by the board and the second one underneath it, which allows for a direct review alternatively by the secretary.

[00:33:05] Speaker 02:
It's C2 is the one that allows the board to make the determination.

[00:33:39] Speaker 04:
May I share this with the co-counsel, Your Honor?

[00:33:40] Speaker 00:
Of course, absolutely.

[00:33:41] Speaker 00:
Well, let's take a minute and confer.

[00:33:43] Speaker 00:
Go ahead.

[00:34:03] Speaker 00:
And by the way, just so you know, you're the ones that cited this to me in your brief at footnote number two.

[00:34:07] Speaker 00:
Todd found out about it.

[00:34:08] Speaker 00:
So I kind of think you should have come to argument prepared for this.

[00:34:12] Speaker 00:
Yes, Your Honor.

[00:34:17] Speaker 00:
Might be footnote three.

[00:34:18] Speaker 00:
I'm thinking it's footnote two.

[00:34:19] Speaker 00:
Might be footnote three.

[00:34:50] Speaker 00:
But no two, I was right the first time.

[00:35:22] Speaker 04:
Yeah, Your Honor, I apologize.

[00:35:25] Speaker 00:
I'm not... I mean, do you see in that document you have in front of you?

[00:35:32] Speaker 00:
I don't have it in front of me anymore.

[00:35:33] Speaker 00:
It's okay.

[00:35:33] Speaker 00:
I don't need it.

[00:35:35] Speaker 00:
Do you see in that document that there seem to be two alternative paths for challenging reasonableness?

[00:35:41] Speaker 00:
Path number one is secretary and then ultimately appeal to the board.

[00:35:45] Speaker 00:
And path number two is board directly.

[00:35:50] Speaker 04:
Yes, Your Honor, I do see that in subsection 2 and 3A.

[00:35:54] Speaker 00:
And so just if you accept this premise, which I think is correct, but certainly I'll verify that that is the version that actually existed between 2006 and 2017, what version do you think governs this case?

[00:36:10] Speaker 00:
Because there's no doubt that current 5904 no longer has that board-related provision in it.

[00:36:16] Speaker 00:
It doesn't.

[00:36:16] Speaker 00:
It used to, but it doesn't.

[00:36:18] Speaker 00:
And this one became effective after that one.

[00:36:21] Speaker 00:
That was through 2017.

[00:36:23] Speaker 00:
The actions that took place in this case, the board decision didn't occur until 2020, I think.

[00:36:29] Speaker 00:
That's right.

[00:36:30] Speaker 00:
2020.

[00:36:32] Speaker 00:
Which version of the statute do you think applies?

[00:36:34] Speaker 00:
Because the veterans thing was actually filed in 2011.

[00:36:38] Speaker 00:
His reasonableness challenge, as you and I interpreted it, was filed in 2011 with the VA.

[00:36:46] Speaker 00:
You see where I'm going.

[00:36:47] Speaker 00:
I'm trying to figure out which of these two

[00:36:48] Speaker 00:
In one of the statutes, he had a right to go to the board and get a resolution by the board.

[00:36:54] Speaker 00:
In the new statute, he does not have a right to go directly to the board and get a resolution by the board.

[00:36:59] Speaker 00:
Which one of those two do you think covers this case, given what you know about the facts and the timeline?

[00:37:06] Speaker 04:
Well, of course, my inclination is to go with the one that doesn't have the stool track, because that's been my impression through today.

[00:37:14] Speaker 02:
Pick which one applies based on what you want to have applied.

[00:37:17] Speaker 02:
Which one do you think applies for legal reasons?

[00:37:22] Speaker 04:
I don't know, Your Honor, and unfortunately it wasn't an issue I looked into in preparation and I regret that, but I'm not sure which one would apply for today's.

[00:37:31] Speaker 04:
My understanding is Mr. Goss and the government both agreed that the board was without jurisdiction because it didn't arrive.

[00:37:39] Speaker 02:
Is something like jurisdiction something the parties can agree to?

[00:37:42] Speaker 02:
No, Your Honor.

[00:37:43] Speaker 02:
That's right.

[00:37:43] Speaker 02:
They can't agree to that.

[00:37:45] Speaker 02:
We have to figure that out.

[00:37:48] Speaker 04:
I would need to look closer at this statute and the rules that would apply at the time.

[00:37:53] Speaker 00:
Okay.

[00:37:54] Speaker 00:
Let me ask him one more.

[00:37:55] Speaker 00:
Here.

[00:37:56] Speaker 00:
Mike, will you give me that back because I want my statute back.

[00:38:01] Speaker 00:
Thanks.

[00:38:03] Speaker 00:
Let me ask you just one more question related to the current version that applies.

[00:38:08] Speaker 00:
OK, the current version, 5904, you have that one.

[00:38:11] Speaker 04:
Yes, Your Honor, I have it in front of me.

[00:38:13] Speaker 00:
And 3A, which is the one that says the Secretary may, on its own motion, or at the request of the climate review, view a fee agreement for reasonableness.

[00:38:22] Speaker 00:
Right?

[00:38:22] Speaker 00:
You see that?

[00:38:22] Speaker 00:
Yes, Your Honor.

[00:38:23] Speaker 00:
And then the 3AB is, and that finding could then be appealed to the board, correct?

[00:38:29] Speaker 00:
Yes, Your Honor.

[00:38:30] Speaker 00:
This is a statute.

[00:38:31] Speaker 00:
This is what Congress says can happen and how it can happen.

[00:38:35] Speaker 00:
And they took out, to be clear, the portion where you're allowed to go straight to the board.

[00:38:40] Speaker 00:
Because the same 3A and 3B here is verbatim in the earlier version I gave you.

[00:38:45] Speaker 00:
There was just a whole other provision that allowed you to go straight to the board without having to go through the secretary.

[00:38:50] Speaker 00:
So I agree.

[00:38:50] Speaker 00:
This is what exists now.

[00:38:52] Speaker 00:
But let me just pull you down to C4, for number four.

[00:38:56] Speaker 00:
Do you see number four on the same page, just a little further down?

[00:38:58] Speaker 04:
Yes, Your Honor.

[00:39:00] Speaker 00:
What kind of fee is the secretary authorized to pay out by statute?

[00:39:09] Speaker 00:
A reasonable fee?

[00:39:10] Speaker 00:
Yeah, that's the one.

[00:39:11] Speaker 00:
So if a secretary, according to Congress, is only allowed to award a reasonable fee, how can you tell me that there was no reasonableness determination in this case?

[00:39:22] Speaker 00:
Well, let me just tell you.

[00:39:24] Speaker 00:
Nine times out of 10, you're sitting here, and Mr. Carpenter's in a very different position.

[00:39:28] Speaker 00:
And you're telling me the board implicitly made a decision, or the secretary implicitly made a decision.

[00:39:33] Speaker 00:
Even though they didn't expressly use the magic words, I'm supposed to always assume, right?

[00:39:38] Speaker 00:
Isn't that what y'all normally tell me?

[00:39:40] Speaker 00:
I should assume that y'all made the decision that you're required by law to make, even if you don't state it.

[00:39:47] Speaker 04:
Right, Your Honor.

[00:39:51] Speaker 04:
You're right that the VA has paid the fee.

[00:39:54] Speaker 00:
And can you pay an unreasonable fee by statute?

[00:39:57] Speaker 00:
Are you allowed to pay an unreasonable fee by Congress's statute?

[00:40:01] Speaker 00:
No, Your Honor.

[00:40:02] Speaker 00:
So you had to have made a decision about reasonableness, didn't you?

[00:40:07] Speaker 04:
Yes, Your Honor.

[00:40:07] Speaker 04:
And Mr. Casey, they have not understood Mr. Casey's

[00:40:11] Speaker 04:
notice of disagreement to be a challenge of that reasonableness determination.

[00:40:16] Speaker 04:
And under the statute, it would have to go first to the offices of the general counsel.

[00:40:19] Speaker 04:
It didn't happen in this case, your honor.

[00:40:21] Speaker 04:
So our position is that the board is without jurisdiction to consider that reasonableness determination.

[00:40:28] Speaker 00:
So now has your position changed?

[00:40:30] Speaker 00:
Your position was that the VA never made a reasonableness determination in this case.

[00:40:36] Speaker 00:
That's what you stood up here and told us.

[00:40:38] Speaker 00:
Is your position now that they did make a reasonableness determination?

[00:40:42] Speaker 00:
Well, under- Can you imagine why we should vacate and remand this case in light of the argument you've just delivered?

[00:40:48] Speaker 04:
Well, certainly that's what Mr. Goss requests, and that's one avenue this court could go down.

[00:40:55] Speaker 04:
But the regulations provide that the VA can, on its own motion, or through the motion of acclaimment.

[00:41:05] Speaker 04:
And so I- Can the regulations

[00:41:09] Speaker 02:
Take over the statute?

[00:41:11] Speaker 02:
Have more weight than the statute?

[00:41:13] Speaker 04:
No, Your Honor.

[00:41:14] Speaker 04:
I guess my only concern about this subsection four, as I look at it now, would mean that any time a fee is paid, that would automatically mean that a fee reasonableness determination has been made.

[00:41:28] Speaker 04:
Why would that be a bad thing?

[00:41:29] Speaker 04:
Well, the statute says that it must go through the office.

[00:41:33] Speaker 04:
I challenge specifically the fee reasonableness.

[00:41:36] Speaker 04:
The statute?

[00:41:37] Speaker 04:
I'm sorry, the regulation says

[00:41:38] Speaker 02:
But again, why does the regulation get to trump the statute?

[00:41:44] Speaker 04:
Well, of course, Your Honor, the statute would... And Counselor, you're not even right about the reg.

[00:41:49] Speaker 00:
The reg actually lays out quite clearly two ways

[00:41:53] Speaker 00:
reasonableness can be assessed.

[00:41:54] Speaker 00:
The first is a presumption.

[00:41:56] Speaker 00:
And you know what?

[00:41:57] Speaker 00:
In 99.9% of all the veterans cases, that presumption is going to govern.

[00:42:02] Speaker 00:
Because the presumption is the fee is reasonable so long as it's capped at 20%, no higher, and the attorney has remained involved in the case through the award of benefits.

[00:42:15] Speaker 00:
And that is the case in almost every instance.

[00:42:18] Speaker 00:
It is the anomalous case, at least that I see,

[00:42:22] Speaker 00:
in which there's a withdrawal of the attorney before the conclusion of the proceeding that awards the veteran's benefits.

[00:42:27] Speaker 00:
But that's okay because you know what your reg did?

[00:42:29] Speaker 00:
It went through and created a nine factor test that the secretary can use to assess reasonableness in those very small number of cases where the attorney withdraws prior to the award of benefits that has done work for which he or she is deserving of compensation.

[00:42:46] Speaker 00:
And the secretary laid it out very carefully.

[00:42:53] Speaker 04:
Of course, Your Honor, the statute would trump the regulation.

[00:42:57] Speaker 00:
But here... So do you think it's possible for the government to pay out fees without having made a reasonableness determination?

[00:43:16] Speaker 04:
I guess, Your Honor, that's another issue that I hadn't prepared.

[00:43:19] Speaker 00:
Look at the statute.

[00:43:21] Speaker 00:
You're an attorney.

[00:43:24] Speaker 00:
Is it possible for the government to pay out fees without making a reasonableness determination?

[00:43:55] Speaker 04:
So I do see the language in section four, Your Honor, but I would need to look into it closer and discuss those sorts of more policy-wide considerations with my client.

[00:44:07] Speaker 00:
What does the policy-wide considerations have to do with a congressional statute?

[00:44:12] Speaker 00:
This statute doesn't authorize you to ignore the statutory language?

[00:44:21] Speaker 04:
No, Your Honor.

[00:44:22] Speaker 04:
Of course, I think as we discussed, there has been a regulatory scheme set up that... That determines what is and is not reasonable, correct?

[00:44:33] Speaker 04:
That allows certain pathways to be pursued to make a reasonableness challenge.

[00:44:38] Speaker 00:
I don't see anything in the statute that allows the Secretary, and show me if I'm wrong, to award benefits absent

[00:44:46] Speaker 00:
a reasonableness determination.

[00:44:48] Speaker 00:
I just see lots of ways that reasonable determination can be made.

[00:44:52] Speaker 00:
Am I incorrect?

[00:44:54] Speaker 00:
Is there something in the regulation that allows the VA to go ahead and award fees absent a determination of reasonableness?

[00:45:05] Speaker 04:
No, Your Honor, I don't believe so.

[00:45:06] Speaker 00:
So that means if they awarded fees here, we have both a regulation and a statute that says they had to, as a predicate matter, have determined reasonableness.

[00:45:16] Speaker 04:
Yes, Your Honor.

[00:45:18] Speaker 04:
That appears to be so.

[00:45:19] Speaker 00:
All right.

[00:45:20] Speaker 00:
Is there anything else you want to add?

[00:45:21] Speaker 04:
Nothing further, Your Honor.

[00:45:22] Speaker 04:
Thank you very much.

[00:45:23] Speaker 04:
Absolutely.

[00:45:24] Speaker 00:
Mr. Carpenter, you have some little time.

[00:45:43] Speaker 05:
I have been placed in some very uncomfortable positions by this court, and I think this may be the most uncomfortable.

[00:45:54] Speaker 05:
On behalf of my client, my position is that the disposition made by the Veterans Court was not made in accordance with law.

[00:46:06] Speaker 05:
And this court should recognize that and reverse that decision.

[00:46:13] Speaker 05:
and overturn the decision.

[00:46:14] Speaker 00:
You're not going to get a reversal.

[00:46:15] Speaker 00:
You know that already.

[00:46:16] Speaker 00:
But you might get a vacate and remand, and then you can figure it out.

[00:46:21] Speaker 05:
Well, with all due respect, Your Honor, that's really the Pandora's box that I'm concerned is being opened here.

[00:46:27] Speaker 05:
We are nearly to the 15th year of litigation in this map.

[00:46:41] Speaker 00:
Mr. Carpenter, do you have any issues with the questions I asked the government?

[00:46:49] Speaker 00:
Do you have any concerns?

[00:46:52] Speaker 00:
that either he mistakenly answered them or do you have problems with the questions?

[00:46:58] Speaker 00:
Is there anything that you saw in that exchange that you would like to offer as an officer of this court and probably the most highly qualified veterans advocate in the nation?

[00:47:11] Speaker 00:
Do you have anything that you would like to say that would suggest that perhaps the direction I was taking this case is mistaken from a legal standpoint?

[00:47:26] Speaker 05:
It is not.

[00:47:29] Speaker 05:
And I do not.

[00:47:31] Speaker 00:
If there's anything further you'd like to add, we're happy to hear it.

[00:47:37] Speaker 05:
I'm on a slippery slope, Your Honor, and I'm going to get off.

[00:47:41] Speaker 00:
Thank you, Mr. Carpenter.

[00:47:42] Speaker 00:
This case is taken under submission.