[00:00:00] Speaker 02:
Our next case is number 24, 1230, Kendall versus Collins.

[00:00:04] Speaker 02:
OK, Mr. Bill Hawquist.

[00:00:06] Speaker 04:
Thank you, Your Honor.

[00:00:08] Speaker 04:
May it please the Court, on behalf of Mr. Kendall, I want to thank this Court for the opportunity to present its appeal.

[00:00:14] Speaker 04:
This bill asks the court to review the VA's actions to reduce Mr. Kendall's attorney's fee for representation of the veteran.

[00:00:22] Speaker 04:
Late last night, and I hope that it made its way to the judges here, we withdrew two of our arguments.

[00:00:30] Speaker 04:
I apologize for the tardiness of that, but in preparing last night and yesterday, we withdrew the first two arguments.

[00:00:37] Speaker 04:
And I want the court to focus on the statutory and regulatory interpretation matter on how the VA can rebut the presumption of reasonableness in the fee.

[00:00:49] Speaker 04:
Is that the only issue before us now?

[00:00:51] Speaker 04:
That is the only issue before you, yes, Your Honor.

[00:00:53] Speaker 02:
Well, we have one other issue, which is jurisdiction.

[00:00:56] Speaker 04:
There is a jurisdiction issue, Your Honor, and I would like to address that first, obviously.

[00:01:02] Speaker 04:
The government first cited the 7263C in that this court cannot review any determinations.

[00:01:11] Speaker 04:
As we pointed out in a reply brief, however, it looks like when Congress amended 5904, they, for whatever reason, overlooked this particular statute.

[00:01:22] Speaker 04:
because the statute that it refers to, 5904C2, no longer authorizes a reduction or a reasonableness review of the fee.

[00:01:33] Speaker 04:
If you look at the pre-2006 version of that statute, this is where the original reasonableness review authorization was given directly to the board.

[00:01:43] Speaker 04:
There were no statutory presumptions, and then it was reviewable by the court.

[00:01:48] Speaker 04:
However, when they amended 5904 in 2006,

[00:01:52] Speaker 04:
The 7263C reference to that statute remained.

[00:01:59] Speaker 04:
We read this as we argued in our reply brief to just be an oversight on the part of Congress.

[00:02:04] Speaker 04:
The current 5904C2 talks about charging a fee after a notice of disagreement has been filed.

[00:02:12] Speaker 04:
I'm sorry, not the current, but the then current 2012 version.

[00:02:18] Speaker 04:
Because again, 5904 was amended again with the Administrator Modernization Act.

[00:02:25] Speaker 04:
So on that point, we do think that that citation no longer applies, that 5904C2 has nothing to do with reasonableness reviews.

[00:02:35] Speaker 03:
So where does that leave 7263D?

[00:02:39] Speaker 03:
It's a nullity?

[00:02:41] Speaker 04:
I think it is, Your Honor.

[00:02:43] Speaker 04:
If you also look at the pre-2006 version of the statute, it cross-referenced 7263.

[00:02:55] Speaker 04:
And so a finding, and I'm reading from 5904,

[00:03:06] Speaker 04:
C2, a finding or order of the board under the preceding sentence may be reviewed by the Veterans Court under 7263D of this title.

[00:03:13] Speaker 04:
That citation, that cross-reference was removed when 5904 was amended in 2006.

[00:03:19] Speaker 04:
And so again, we think that there may have been an oversight when the statute was amended and failing to also amend the cross-reference in 7263.

[00:03:32] Speaker 03:
And our precedent at Carpenter versus Principi,

[00:03:36] Speaker 03:
is also a knowledge.

[00:03:38] Speaker 04:
It doesn't apply, Your Honor, because it's discussing the pre-2006 version of 5904.

[00:03:46] Speaker 04:
And again, that statute has been amended.

[00:03:50] Speaker 04:
And there's no longer a review by the board of a fee reasonableness.

[00:03:55] Speaker 04:
And the current 5904, I'm sorry, the applicable 5904C, the 2012 version, does not cross-reference that statute.

[00:04:06] Speaker 04:
As best we can tell, that statute should have been changed, wasn't, and this court does retain jurisdiction to review these, at least that's not a bar to review.

[00:04:22] Speaker 02:
Now, that being said... So where is that?

[00:04:25] Speaker 02:
Does that leave us that there's no restriction on judicial review of fees?

[00:04:31] Speaker 04:
Other than the normal restrictions, Your Honor, that are already in this Court's jurisdictional statute, such as no review of fact findings and other restrictions in 72-92.

[00:04:50] Speaker 04:
But that being said, we are not necessarily challenging directly the board's determination that the fee is not reasonable.

[00:04:58] Speaker 04:
What we're challenging is the way that the Secretary's regulation circumvents the statutory presumption of reasonableness.

[00:05:09] Speaker 04:
And this gets us into the next jurisdictional, or not necessarily jurisdictional, but I guess the waiver aspect, where the Secretary, the Veterans Court,

[00:05:19] Speaker 04:
held that it was having a hard time understanding Mr. Kendall's argument.

[00:05:26] Speaker 04:
But we would just point out that if you look at the brief that we submitted to the Veterans Court, and that is starting on page 165 of the appendix, the argument that was there, pages 186 to 93, is very similar to what we argued to this court.

[00:05:47] Speaker 04:
And the court itself, on page 9 of the appendix, articulated the argument perfectly in our mind.

[00:05:57] Speaker 04:
And that was, as we mentioned in the reply brief,

[00:06:05] Speaker 04:
Yes, the Secretary can rebut the presumption of regularity, but it can't do that by using these factors.

[00:06:13] Speaker 04:
And these factors, per its own regulation under 14636E, are used.

[00:06:22] Speaker 04:
And it says from the regulation, factors considered in determining whether fees are reasonable.

[00:06:29] Speaker 04:
We know that a 20% fee is reasonable because the statute says it is.

[00:06:34] Speaker 04:
The statute presumes that any fee that is 20% is reasonable.

[00:06:38] Speaker 04:
And so the argument here is that the secretary is essentially reaffirming the reasonableness of a fee that the statute has already said is reasonable.

[00:06:49] Speaker 04:
What it doesn't do is present clear and unmistakable evidence that the fee is not reasonable.

[00:06:55] Speaker 04:
That presumption must be rebutted first

[00:06:59] Speaker 04:
And then the secretary would use whatever factors that are in the regulation to determine what fee is reasonable.

[00:07:06] Speaker 04:
But what this regulation has essentially done is by implication found that a part of the fee is unreasonable because they found only the other part to be reasonable.

[00:07:22] Speaker 04:
may work in the absence of a statutory presumption, but when the Congress has said that all parts of that 20% fee are reasonable, the first step is to present clear and unmistakable evidence that the fee is not reasonable.

[00:07:38] Speaker 04:
It can't do that by simply saying this other part of it is reasonable.

[00:07:42] Speaker 01:
What factors would they consider in determining whether the fee is reasonable or not?

[00:07:53] Speaker 04:
Well, the factors in the regulation, your honor, clearly under what the secretary wrote, are factors to be determined whether a fee is reasonable.

[00:08:04] Speaker 04:
Now, what they would determine to find a fee not reasonable, we don't know because it's not in the regulation.

[00:08:11] Speaker 01:
Is that one and the same?

[00:08:12] Speaker 01:
I mean, if it's either reasonable or not reasonable.

[00:08:15] Speaker 04:
In most cases, it can be, Your Honor.

[00:08:18] Speaker 04:
But again, because there's a statutory presumption, the entire fee is reasonable, unless there's clear and unmistakable evidence that it's not reasonable.

[00:08:27] Speaker 01:
And the clear and unmistakable evidence would take into account what factors?

[00:08:36] Speaker 04:
I don't know, Your Honor.

[00:08:37] Speaker 04:
Again, I think that some of these factors may come into play, but they would be

[00:08:45] Speaker 01:
Again, I think that looking at- Or at least why wouldn't these factors, the factors in 14636, be at least a guide as to what factors should be considered?

[00:09:02] Speaker 04:
Well, I would just say, Your Honor, that's up to the Secretary to put in a regulation.

[00:09:07] Speaker 04:
This regulation says that these factors are used to determine if a fee is reasonable.

[00:09:13] Speaker 04:
Any fee that's 20% or less is already reasonable, so we don't need to go through this analysis.

[00:09:19] Speaker 04:
The presumption is rebutted by showing with clear and unmistakable evidence that the fee is not reasonable.

[00:09:27] Speaker 04:
And I understand.

[00:09:30] Speaker 01:
Going back to Carpenter, why is the discussion we're having now within our jurisdiction to consider?

[00:09:42] Speaker 04:
Well, again, Your Honor, Carpenter was looking at the pre-2006 version of the statute, which was where the board performed the first and only review from the agency, and the Veterans Court reviewed that.

[00:09:55] Speaker 04:
5904 was amended.

[00:09:58] Speaker 04:
The cross-reference to 7263D was removed.

[00:10:04] Speaker 01:
Does the reasoning of Carpenter not apply equally to the amended statutory scheme?

[00:10:16] Speaker 04:
It can't, Your Honor, because the statute currently references a provision that has nothing to do with a reasonableness review.

[00:10:27] Speaker 04:
And so it's pointing to nothing.

[00:10:30] Speaker 04:
The 5904C in the 2012 version, 5904C2, says a person acting as an agent or attorney under C1 that they can charge fees

[00:10:54] Speaker 04:
after a notice of disagreement is filed with respect to the case.

[00:10:57] Speaker 04:
So there is no reasonableness aspect to this subsection of the statute.

[00:11:02] Speaker 04:
And so we think, again, removing the cross-reference in 5904 and failing to amend 7263 to point to any reasonableness aspect within this statute is a signal that Congress did not intend to retain that jurisdictional bar.

[00:11:23] Speaker 02:
The original jurisdictional bar applied to the Veterans Court as well as to our court?

[00:11:29] Speaker 04:
It did not, Your Honor.

[00:11:29] Speaker 04:
The Veterans Court could review the board's reasonable misdetermination, but this court could not review the Veterans Court.

[00:11:35] Speaker 02:
How do you get that from the statutory language?

[00:11:40] Speaker 04:
So the statutory language, this is 72

[00:11:45] Speaker 02:
Because it's talking about reviews, the Beach Board of Veterans Appeals decision, but can't be reviewed by any other court.

[00:11:54] Speaker 02:
Any other court has to be our court.

[00:11:56] Speaker 02:
Correct.

[00:11:57] Speaker 04:
Yeah, because this court has exclusive jurisdiction over the Veterans Court's rulings.

[00:12:02] Speaker 03:
I appreciate you directing us to your articulation of your challenge on the merits below.

[00:12:09] Speaker 03:
I'm still a bit confused by it, I have to admit.

[00:12:11] Speaker 03:
But at 187, which is where you directed us to the briefs, you highlight, so I take it this is the portion of the regulations you're saying is in conflict with the statute.

[00:12:24] Speaker 03:
Are you at 187?

[00:12:25] Speaker 03:
Yes, Your Honor.

[00:12:26] Speaker 03:
That the presumptions can be refuted through an examination of the factors.

[00:12:31] Speaker 03:
It seems like you're just

[00:12:35] Speaker 03:
challenging the factors.

[00:12:37] Speaker 03:
You don't challenge that the presumption is rebuttable, right?

[00:12:40] Speaker 03:
That's consistent with the statute.

[00:12:42] Speaker 03:
Any presumption is rebuttable.

[00:12:44] Speaker 03:
Yes, Your Honor.

[00:12:45] Speaker 03:
And I think you don't challenge that the rebuttal needs to be by clear and convincing evidence.

[00:12:51] Speaker 03:
Correct, Your Honor.

[00:12:55] Speaker 03:
And the regulation itself says 20% is presumed reasonable, so you don't challenge that.

[00:13:01] Speaker 03:
Correct, Your Honor.

[00:13:02] Speaker 03:
So you challenge only that they use the same factors that they already have adopted for reasonableness.

[00:13:13] Speaker 03:
And I'm having trouble with that, because it seems that maybe that's what Judge Lynn is also taking you to.

[00:13:18] Speaker 03:
The same factors that would allow me to consider something reasonable, I think, would be a good starting point for assessing if something's unreasonable.

[00:13:28] Speaker 04:
I think that it's a starting point, Your Honor, but two responses to that.

[00:13:32] Speaker 04:
And I see I'm running low on time, but number one is that just because a fee is reasonable doesn't mean it is not reasonable.

[00:13:41] Speaker 04:
And that's kind of our biggest problem with how this regulation is written is it's implying that if they only find a portion of the fee is reasonable, that the rest has to be unreasonable.

[00:13:54] Speaker 04:
But it can't be because the statute has already said it is reasonable.

[00:13:58] Speaker 04:
And number two, the factors that are listed in this regulation very explicitly are used only to determine whether a fee is reasonable.

[00:14:06] Speaker 04:
And I understand that it's a very fine distinction.

[00:14:12] Speaker 01:
Where is this space between finding that something is reasonable and something is unreasonable?

[00:14:21] Speaker 01:
It seems to me this is black and white.

[00:14:24] Speaker 01:
that if it's not one, it's the other, and vice versa.

[00:14:28] Speaker 04:
And that may be true, Your Honor, for a fee that exceeds 20 percent, but because Congress has presumed the full fee is reasonable, there has to be some other finding that is not based upon factors that a fee is reasonable.

[00:14:44] Speaker 04:
And that is really our biggest issue with this regulation, the way it's written.

[00:14:51] Speaker 01:
I'm just having a hard time with that because you're not telling me where there is room to distinguish between a determination that something is reasonable or unreasonable.

[00:15:07] Speaker 01:
And given that the statute says 20% is presumptively reasonable,

[00:15:13] Speaker 01:
But if the factors suggest that it's not, it's not.

[00:15:20] Speaker 04:
Well, Your Honor, that's just it.

[00:15:22] Speaker 04:
It's suggesting or implying, as opposed to presenting clear and unmistakable evidence, that it is not reasonable.

[00:15:30] Speaker 04:
Now, the Secretary can.

[00:15:31] Speaker 01:
Well, of course, all these determinations have to be based on the evidentiary record.

[00:15:36] Speaker 01:
It's not like you can just pull out a thin air.

[00:15:39] Speaker 01:
Well, I don't like this, so I think it's unreasonable.

[00:15:43] Speaker 01:
And because I've made that determination, now I can look at factors to substantiate it.

[00:15:51] Speaker 01:
I just don't think that that makes any sense.

[00:15:53] Speaker 01:
Either the evidence shows something to suggest it's unreasonable, or it doesn't.

[00:16:00] Speaker 01:
If it doesn't, then, presumptively, it's reasonable.

[00:16:05] Speaker 03:
Are you arguing there's any difference between unreasonable and not reasonable?

[00:16:11] Speaker 03:
or are those the same things?

[00:16:12] Speaker 03:
If you're unreasonable, you're not reasonable.

[00:16:16] Speaker 04:
I think there is a difference, Your Honor.

[00:16:19] Speaker 04:
OK.

[00:16:19] Speaker 04:
What's the proof?

[00:16:20] Speaker 04:
That's what I'm looking for.

[00:16:22] Speaker 04:
Right.

[00:16:22] Speaker 04:
And again, it's in the context of the statutory presumption, because it's already been determined by law to be reasonable.

[00:16:30] Speaker 03:
To be presumed reasonable, which is repeated in the regulations.

[00:16:35] Speaker 04:
Well, it is, Your Honor.

[00:16:35] Speaker 04:
But again, the Secretary can certainly

[00:16:38] Speaker 04:
Redraft the regulation.

[00:16:40] Speaker 03:
Let's come back to I know we're way over time Just can you articulate for us the difference in this context between unreasonable and not reasonable?

[00:16:51] Speaker 04:
I think that the the Not at this time your honor But if you would allow me to think on it And if I could have just a short rebuttal period then I'd be happy to try to answer that question more more effectively Thank you

[00:17:14] Speaker 00:
May it please the court.

[00:17:15] Speaker 00:
I'll start with jurisdiction.

[00:17:19] Speaker 00:
Section 7263D is not a nullity.

[00:17:23] Speaker 00:
It was not repealed by implication.

[00:17:26] Speaker 00:
And the argument that it was really doesn't appear in the briefs, but I'll still address it this morning.

[00:17:34] Speaker 00:
So 7263D

[00:17:38] Speaker 00:
does refer back to the provision for filing an agreement with the VA.

[00:17:44] Speaker 00:
So it matches in both cases.

[00:17:48] Speaker 00:
And nothing in the 2006 law, which I believe counsel is referring to Public Law 109-461, and suggested that something changed in that law with respect to 5904C2.

[00:18:04] Speaker 00:
But I'm looking at the provisions of that public law,

[00:18:08] Speaker 00:
And although paragraph two was amended, as many of this court's decisions have recognized, that the time that was permitted for attorneys to represent veterans before the VA became earlier and earlier over time.

[00:18:22] Speaker 00:
It used to be after a board decision and then after a notice of disagreement.

[00:18:26] Speaker 00:
So that was altered in the public law.

[00:18:28] Speaker 00:
But the 7263 always referred back to C2 and 5904 C2.

[00:18:37] Speaker 00:
which is the provision for filing an agreement with the VA.

[00:18:41] Speaker 00:
So the analysis in Carpenter remains true both before and after.

[00:18:46] Speaker 00:
There certainly was no review.

[00:18:48] Speaker 02:
But it seems to me you've got a larger problem than that.

[00:18:50] Speaker 02:
Even if you're correct, the 7263D still retains its original form.

[00:19:00] Speaker 02:
The question is whether that preclusion of judicial review should be read to

[00:19:06] Speaker 02:
Bar review of the regulations.

[00:19:08] Speaker 02:
I mean certainly you would agree that under 501 There could be an appeal from the adoption of the regulation to consider its validity, right?

[00:19:20] Speaker 00:
well any yes to the extent your honor that the The important thing is that a reasonableness analysis is a very specific type of analysis previously it was reserved for the board of

[00:19:34] Speaker 00:
to conduct the analysis in the first instance.

[00:19:36] Speaker 00:
It then was altered so that now the general counsel's office in the VA reviews it.

[00:19:43] Speaker 00:
So it's a very specific type of analysis.

[00:19:45] Speaker 00:
And when a regulatory issue is wrapped up in that analysis, the 7263 bar applies.

[00:19:51] Speaker 02:
And that's because the bar applies to- There wasn't any warning regulations.

[00:19:55] Speaker 02:
There wasn't a regulatory authorization that was created in 2006, right?

[00:20:00] Speaker 00:
No, that remained the same.

[00:20:02] Speaker 00:
That remained the same.

[00:20:04] Speaker 00:
Oh, sorry.

[00:20:05] Speaker 02:
At the time of Carpenter was pre 2006.

[00:20:08] Speaker 00:
Yes.

[00:20:09] Speaker 02:
The 2006

[00:20:11] Speaker 02:
legislation gave the VA the authority to adopt these regulations, right?

[00:20:17] Speaker 00:
No, that was in A5.

[00:20:18] Speaker 00:
So the 2006 legislation altered C2 by moving up the time to the attorney agreement could be filed.

[00:20:29] Speaker 00:
From what I'm looking at in my review, it did not alter A5.

[00:20:33] Speaker 00:
And A5 of 5904 is the provision that says

[00:20:40] Speaker 00:
the secretary may prescribe in regulations reasonable restrictions on the amount of fees and a fee that does not exceed 20% of the past due amount of benefits awarded.

[00:20:49] Speaker 02:
So what in your view then did the 2006 legislation do with respect to fees?

[00:20:54] Speaker 02:
I mean, other than changing the venue for the reasonableness determination?

[00:21:00] Speaker 00:
The two things are that it moved up the time from, I believe, a final board decision to the filing of the notice of disagreement.

[00:21:07] Speaker 00:
And so it amended C2 by doing that.

[00:21:10] Speaker 00:
And then it also changed the venue, as the court said, from the board to the secretary.

[00:21:15] Speaker 00:
And then the secretary delegated that to the general counsel's office.

[00:21:18] Speaker 00:
So the 2006 legislation is really not material when it comes to the jurisdictional analysis under 7263D.

[00:21:25] Speaker 00:
It doesn't change anything about that analysis.

[00:21:30] Speaker 00:
And so just as was true in Carpenter, the jurisdictional bar applies to the order as a whole.

[00:21:38] Speaker 02:
OK, but even assuming that you're correct about the 2006 legislation, we have Supreme Court cases which talk about the presumption of judicial review.

[00:21:46] Speaker 02:
One of those is in the veterans context.

[00:21:50] Speaker 02:
And there's nothing in the legislative history of 1988

[00:21:56] Speaker 02:
statute that indicates a desire to preclude review of the legal standards being applied to fee determinations.

[00:22:08] Speaker 02:
It's all about concern about reviewing factual determinations.

[00:22:14] Speaker 00:
Well, in Carpenter, the court- That's true, right?

[00:22:18] Speaker 00:
That's true with regard to $72.92, but here the specific governs the general.

[00:22:21] Speaker 00:
So here we're not talking about the court's jurisdiction in general under $72.92.

[00:22:25] Speaker 02:
We're talking about a specific carve-out when it comes to... But I thought that legislative history was directed specifically to the bar on review of reasonable fees.

[00:22:37] Speaker 00:
That's not what the court held in Carpenter.

[00:22:39] Speaker 00:
In Carpenter, the issue that was attempted to be presented there was a question of the interpretation of EJA.

[00:22:46] Speaker 00:
the Equal Access to Justice Act.

[00:22:47] Speaker 00:
And this court said, even if that's a statutory issue that would otherwise be within the court's jurisdiction under 7292, the specific governs the general.

[00:22:55] Speaker 00:
And 7263, the jurisdictional bar there covers the order.

[00:23:02] Speaker 00:
So there's no issue-specific analysis that is appropriate to take place.

[00:23:07] Speaker 00:
So if there was an argument that the court would still have jurisdiction under 502,

[00:23:16] Speaker 00:
the the general authority to review regulations.

[00:23:20] Speaker 02:
Yeah, but that would have to be done at the time that the regulation was adopted and it seems extremely odd to say that we could review the validity of a regulation under 501-502.

[00:23:32] Speaker 02:
but that the same regulatory issue couldn't be reviewed as part of an adjudication.

[00:23:37] Speaker 02:
Our cases generally say that you can review the substantive ability of the regulation both under 501-502 and in later litigation.

[00:23:49] Speaker 02:
And Carpenter, the Carpenter case just didn't deal with that, right?

[00:23:54] Speaker 00:
I think it did deal with it, Your Honor, because any analysis that would carve out a statutory-specific or regulatory-specific analysis from

[00:24:02] Speaker 00:
the jurisdictional bar, the jurisdictional bar of reviewing the order would be contrary to Carpenter because in Carpenter there was a legal issue presented, which was the EGFE issue, and the court said we do not have jurisdiction to review that even if it would otherwise qualify for review under 7292.

[00:24:17] Speaker 00:
So there's really no way to read 7263D that would

[00:24:22] Speaker 00:
that would allow any review of that order.

[00:24:24] Speaker 00:
That order is final and shall not be reviewed by any court.

[00:24:27] Speaker 00:
And as my friend on the other side said, that means this court.

[00:24:30] Speaker 01:
But the court was directed to the interpretation of the fee determination, not any regulatory interpretation, correct?

[00:24:42] Speaker 00:
Well, it wasn't a regulatory interpretation.

[00:24:44] Speaker 00:
It was a statutory interpretation there.

[00:24:46] Speaker 00:
And the argument was

[00:24:47] Speaker 01:
with respect to a determination of the fee?

[00:24:54] Speaker 00:
With respect to a determination of fee reasonableness.

[00:24:57] Speaker 00:
Free reasonableness is a very specific type of challenge.

[00:25:00] Speaker 00:
There are all kinds of other matters that this court can and has reviewed with regard to eligibility.

[00:25:05] Speaker 00:
So was there a fee agreement in place?

[00:25:08] Speaker 00:
Was it filed as required?

[00:25:10] Speaker 00:
Should, based on the fee agreement that was in place, should the award have been made out of past due benefits?

[00:25:16] Speaker 00:
Those are all kinds of issues that this court has in the past addressed and do not implicate Carpenter and do not implicate this case because the fee reasonableness analysis is a very specific one.

[00:25:26] Speaker 00:
And Congress has indicated that it does not want further review of the fee reasonableness issue.

[00:25:31] Speaker 00:
And it encompassed the entire order.

[00:25:34] Speaker 01:
But the regulation at issue here relates to the process for determining how a fee is reasonably determined.

[00:25:44] Speaker 01:
Is that a little different?

[00:25:48] Speaker 00:
No.

[00:25:49] Speaker 01:
The question is, can we review

[00:25:56] Speaker 01:
the scope and implication of the regulatory scheme adopted to make the fee determination, the application of that regulatory scheme to the facts of a particular case to determine the fee, that would be beyond our review based on the statute.

[00:26:14] Speaker 01:
But I think there's a distinction there.

[00:26:19] Speaker 00:
The way that Carpenter addressed this, and the way which is entirely consistent and required by the statute, is to first ask the question,

[00:26:26] Speaker 00:
Is this an order that is covered by the subsection, which is subsection 72?

[00:26:30] Speaker 02:
It would be very unusual for a preclusion of judicial review to say you can't review the validity of a regulation.

[00:26:39] Speaker 02:
And Congress certainly was not explicit about that in 1988.

[00:26:43] Speaker 02:
And if you look at the Supreme Court's decision in Treanor versus Turnage, which I assume you're familiar with, right?

[00:26:50] Speaker 00:
Sorry?

[00:26:51] Speaker 02:
Treanor versus Turnage?

[00:26:53] Speaker 00:
I'm not off my head right now, Your Honor.

[00:26:55] Speaker 02:
It has to do with the presumption of judicial review in the veterans context.

[00:26:59] Speaker 02:
And what it says is, unless there's a clear indication of congressional intent to preclude judicial review, judicial review is available.

[00:27:08] Speaker 02:
I find it difficult to see in the history of the 1988 provision that there was a clear intention to preclude judicial review of the validity of regulations, which would be very unusual.

[00:27:21] Speaker 00:
If there was a freestanding case under 502, for example, that challenged a regulation, that could proceed in this court.

[00:27:29] Speaker 00:
So it's the question.

[00:27:30] Speaker 02:
That's what's so anomalous.

[00:27:32] Speaker 02:
You can do it under 501, 502, but you can't do it in adjudication.

[00:27:36] Speaker 02:
I mean, generally, in adjudication, the validity of a regulation can be determined.

[00:27:41] Speaker 02:
I don't see anything in 1988, and you can point into it if there is.

[00:27:45] Speaker 02:
It suggests that Congress intended to preclude the review of the validity of the regulations.

[00:27:51] Speaker 02:
That just doesn't fool them what they were concerned about.

[00:27:55] Speaker 00:
Congress's intent is reflected by walking through the statute.

[00:28:00] Speaker 00:
So the question is, the question we start with under Carter- I'm looking at the legislative history too.

[00:28:05] Speaker 00:
Sorry?

[00:28:05] Speaker 02:
The legislative history too.

[00:28:08] Speaker 00:
Regarding 7263D?

[00:28:09] Speaker 00:
Yeah.

[00:28:12] Speaker 00:
Yes, but the language is clear, because the jurisdictional analysis starts with the question, is this an order of the court under subsection 72?

[00:28:21] Speaker 02:
It doesn't say we're precluding review of the validity of regulations, right?

[00:28:24] Speaker 02:
It's not clear in that way.

[00:28:26] Speaker 00:
It says that an order of the court is final and not subject to further review.

[00:28:29] Speaker 02:
It doesn't refer to review of regulations, right?

[00:28:34] Speaker 00:
It's anything that is subsumed by the order.

[00:28:37] Speaker 01:
Well, that is a bit of a jump.

[00:28:40] Speaker 01:
When he talks about the order itself, it doesn't talk about the regulations that get you to that order.

[00:28:49] Speaker 00:
The order covers everything that is in the decision.

[00:28:52] Speaker 00:
It certainly is not limited.

[00:28:53] Speaker 00:
The language of this is not limited, and it would make no sense for Congress to limit simply to the factual analysis of reasonableness.

[00:29:01] Speaker 01:
Why wouldn't that make sense?

[00:29:02] Speaker 00:
Because that would already be covered by the existing jurisdictional bar for this court to analyze.

[00:29:09] Speaker 00:
factual matters or application of law to fact.

[00:29:12] Speaker 00:
That's not what Congress did here.

[00:29:13] Speaker 00:
Congress specifically carved out jurisdictional review of the order under 7263D.

[00:29:18] Speaker 00:
And so the first question is, is this an order under 7263D?

[00:29:23] Speaker 00:
And I think there's no dispute that it is because

[00:29:25] Speaker 00:
The way that it's phrased is, in reviewing a fee agreement filed under 5904C2, which this agreement was filed under 5904C2 and was reviewed by the VA, was in turn affirmed by the board, and in this case, an order of the court that is affirming the board under that provision.

[00:29:44] Speaker 00:
So that's the analysis the court did in Carpenter, which is a prior presidential decision interpreting this exact statutory provision.

[00:29:51] Speaker 00:
And in Carpenter, the court started the analysis saying,

[00:29:54] Speaker 00:
Is this an order under 7263D?

[00:30:00] Speaker 00:
Once that finding is made, and it certainly is true here, there really can't be any dispute that this is an order under 7263D.

[00:30:08] Speaker 02:
The whole argument is no weight at all to the presumption of judicial review, which Supreme Court has recognized repeatedly, including specifically in the veterans context.

[00:30:23] Speaker 02:
You have to find something pretty specific.

[00:30:25] Speaker 02:
You can't just say, well, it's broad enough to cover review of regulations.

[00:30:30] Speaker 02:
That seems to me under the case is not sufficient to preclude judicial review.

[00:30:35] Speaker 02:
There would have to be some intent to specifically bar review of regulations, which you can't find in 1988.

[00:30:43] Speaker 00:
The way that Congress created this carve out covers the order.

[00:30:51] Speaker 00:
So Congress didn't also have to say, end everything covered by the order, whether it's statute, regulation, factual analysis.

[00:30:59] Speaker 00:
That is all under the plain language of the order.

[00:31:02] Speaker 00:
So once we have the decision, there's no further review of that decision, no matter what is encompassed in that decision.

[00:31:09] Speaker 03:
My opinion of your answer is it's the clear language of 7263D, the last sentence, and it's our holding and analysis in Carpenter.

[00:31:20] Speaker 03:
that we've already addressed this question, and we've said anything that arises in review of an order under 7263D is outside of our jurisdiction.

[00:31:32] Speaker 03:
That's right, Your Honor.

[00:31:34] Speaker 03:
Is there any pertinent legislative history that you're aware of that relates to 7263D?

[00:31:38] Speaker 03:
In CARB?

[00:31:41] Speaker 03:
I would encourage you to be talking about 7292 legislative history with Judge Deck.

[00:31:44] Speaker 03:
Is there any pertinent legislative history specific to 7263D?

[00:31:49] Speaker 00:
The court addressed it in Carpenter, and I'm just now looking for, it discusses that the final text of the act resulted from reconciliation from a compromise agreement in lieu of a conference report.

[00:32:03] Speaker 00:
And so this is at page 1374, it looks like, of the Carpenter decision.

[00:32:12] Speaker 00:
So the explanatory statements on the compromise agreement both indicate that the act authorizes, I see everyone at a time, may I?

[00:32:20] Speaker 00:
Judge like me I complete the answer at my time So so essentially this is just this is reciting the relevant legislative history with regard to the specific carve out in 7263 D So it is addressing carpenter

[00:32:41] Speaker 03:
which is binding on this court.

[00:32:48] Speaker 00:
There's no distinction, and in the regulation in subsection F, it specifically says that the way to rebut the presumption is through the clear and convincing evidence of the factors.

[00:33:03] Speaker 00:
So the presumption is effectuated by requiring clear and convincing evidence under those factors.

[00:33:08] Speaker 02:
But I want to come back to the legislative history here, because I think there is relevant legislative history.

[00:33:13] Speaker 02:
Judge Breyer and Judge Arnold, on behalf of the Judicial Conference, testified as to the desirability of limiting the amount of court time involvement in deciding attorney's fees.

[00:33:27] Speaker 02:
And they said in their testimony that the concern had to do with reviewing factual findings.

[00:33:34] Speaker 02:
There's no indication in that legislative history that there was concern about reviewing the validity of regulations.

[00:33:42] Speaker 02:
That would be very odd, anyway.

[00:33:45] Speaker 00:
Well, I don't think it would be odd.

[00:33:48] Speaker 00:
For one thing, as this case represents, challenges to the regulations can often be a way of dressing up what is actually a disagreement with the facts.

[00:34:01] Speaker 00:
But regardless, what was clear is that the intent was to cover the order.

[00:34:05] Speaker 02:
No, but answer my question about the legislative history.

[00:34:07] Speaker 02:
That legislative history does exist, and it does relate to the review of attorney's fees, correct?

[00:34:13] Speaker 02:
And it does express concern only about fact-finding, correct?

[00:34:17] Speaker 00:
Well, I don't think that's quite right, Your Honor, because what's discussed in Carpenter is, for example, decisions.

[00:34:22] Speaker 02:
No, no, that's against the legislative history.

[00:34:25] Speaker 00:
I'm referring to the legislative history discussed in Carpenter.

[00:34:27] Speaker 00:
So there at 134 Congress, 31, 474 to 75, the goal was to ensure that decisions by the board as to the reasonableness of fees would be reviewable in the Veterans Court, but not by any other court.

[00:34:42] Speaker 00:
So we have this reference to decisions.

[00:34:45] Speaker 00:
What made it into the actual statute is the order.

[00:34:48] Speaker 00:
So it's reflecting an intent and

[00:34:51] Speaker 00:
In fact, this plain statutory language says that the decision is not reviewable, the order is not reviewable, and that encompasses anything that is raised within that order.

[00:35:02] Speaker 02:
Okay, but the legislative history that I cited to you is not inconsistent with the legislative history, the more limited discussion of the legislative history in Carpenter.

[00:35:14] Speaker 02:
And is my statement correct that that was the concern in the legislative history with fact-finding?

[00:35:23] Speaker 00:
I'm sorry, Your Honor.

[00:35:25] Speaker 00:
I'm sure that the legislative history addressed the concern about fact-finding, but I don't think that the implication that's the only concern is reasonable when they also address the decision, not just the fact-finding.

[00:35:37] Speaker 02:
But you do agree that there was no indication in the legislative history of a desire to preclude review of regulations, right?

[00:35:44] Speaker 00:
I'm not aware of anything in the legislative history specifically saying that within a decision or within an order, specific things should be included because I think it's clear based on the legislative history and the statute that the order is what they did not want.

[00:35:58] Speaker 00:
They did not want any further review of the order.

[00:36:01] Speaker 00:
So that encompasses everything within the order.

[00:36:13] Speaker 04:
So Judge Stark, I'll do my best here to clarify what we mean by this.

[00:36:21] Speaker 04:
So I think that a finding of a reasonableness tells us only what is reasonable.

[00:36:26] Speaker 04:
And if the fee is not found to be reasonable, we can assume that some part of that is not reasonable, but it is not.

[00:36:35] Speaker 04:
It is different than an affirmative finding that the fee is not reasonable with current unmistakable evidence.

[00:36:40] Speaker 04:
Again, what the regulation is doing is using these factors to determine what is reasonable, and our position is that there should be a different analysis to determine what is not reasonable, because under 5107b,

[00:36:59] Speaker 04:
the standard of proof is benefit of the doubt in most factual, in most fact findings.

[00:37:05] Speaker 04:
And so when you're looking at whether a fee is reasonable or not, that's going to be the analysis.

[00:37:10] Speaker 04:
Clear and unmistakable evidence is different and a higher burden and a higher standard than what the normal fact finding is being done in these kinds of situations.

[00:37:20] Speaker 01:
What is your view of

[00:37:24] Speaker 01:
the interpretation of 7263D based on the legislative history that Judge Dyke just mentioned.

[00:37:33] Speaker 04:
So I think Judge Dyke is exactly correct that this is one about a regulatory and statutory interpretation matter, two

[00:37:42] Speaker 04:
There's a strong, strong presumption of judicial review, particularly in veterans matters.

[00:37:46] Speaker 04:
And three, going back to our original argument, when Congress amended 5904, the provision that this statute was pointing to is different.

[00:37:58] Speaker 04:
It's no longer a fee agreement filed under C2.

[00:38:05] Speaker 04:
C2 in the pre-2006 version

[00:38:08] Speaker 04:
says that the attorney shall file a copy of a fee agreement with the board, and then the board on its own motion or at the request of the party can review that agreement.

[00:38:19] Speaker 04:
That no longer exists in the C2 version that applies here.

[00:38:25] Speaker 04:
I say that I'm out of time, so if there are no more questions, thank you all very much.

[00:38:29] Speaker 02:
Thank you.

[00:38:29] Speaker 02:
Thank both counsel and cases.