[00:00:00] Speaker 03:
Our next case this morning is number 24-1152, Percy Averill versus Congress.

[00:00:08] Speaker 03:
Okay, Mr. Niles.

[00:00:10] Speaker 00:
Thank you, Your Honor.

[00:00:11] Speaker 00:
May it please the Court.

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The jurisdiction with which Congress has vested the Veterans Court is, by 38 U.S.C., Section 7252A's plain language, exclusive.

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This means that as soon as the appellant files a notice of appeal from the board of veterans appeals to the veterans court, the only entity with jurisdiction to act.

[00:00:32] Speaker 02:
When you filed your notice of appeal to the veterans court, what decision were you challenging and what relief did you seek from the veterans court?

[00:00:40] Speaker 00:
Mr. Percy Valley was appealing from the board September 30th, 2021, rejection of his notice of appeal to the board, the board's dismissal of his appeal from an April

[00:00:52] Speaker 00:
13th dated agency of original jurisdiction fee determination.

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And the relief that he was seeking from the Veterans Court was reversal of the board's dismissal order and remand to the board for then adjudication on the appeals merits.

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Of the attorney fees?

[00:01:10] Speaker 00:
Of the agent fees, yes, Your Honor.

[00:01:13] Speaker 02:
And those fees have since been granted?

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The fees have since been granted.

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They have since been paid.

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What relief is there left for us to order the Veterans Court to give?

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The relief left for this court to order the Veterans Court to give is to reverse the board's September 30, 2021 dismissal order and remand with instructions then for the board to confirm the payment of the fees.

[00:01:39] Speaker 02:
Isn't that an advisory opinion?

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I mean, the fees have already been granted.

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Are you going to pay them back while the board

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relooks at this case.

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Jurisdiction is harsh, and that harshness works both ways.

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But mootness is also a doctrine that courts can apply despite jurisdiction.

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The case can become moot through any number of reasons.

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And even if we have jurisdiction, where the Veterans Court has jurisdiction, if there's nothing left to grant, then the case is moot, isn't it?

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There are many ways that an appeal may become moot.

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But the inferior tribunal clawing back jurisdiction is not one.

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Any action that the board takes.

[00:02:21] Speaker 03:
But he has the money.

[00:02:22] Speaker 03:
They're giving the money back, right?

[00:02:25] Speaker 03:
Yes, Your Honor.

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You agree he's not going to give the money back?

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At the end of the day, that money is his.

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We would fully expect that on return to the Veterans Court, what we would hope, we've been welcoming the government to file a motion that would then ask them.

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What is this about?

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Is this about attorney's fees?

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This is about the power of the better score.

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No, no, no.

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I don't care about that hypothetical legal argument about jurisdiction and all that kind of stuff.

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A mootness doctrine can be applied by a court.

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Even if what happened was legally incorrect, it can still moot a case.

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Except that is true.

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Your case is moot, isn't it?

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I cannot accept that it's true because- No, no.

[00:03:09] Speaker 02:
Accept that it's true.

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It's our view of the law that whatever the action was, it can moot a case even if there was legal error.

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You can look at it as a harmless air doctor, too, if you want to.

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Those are legal principles that you have to agree to for purposes of this question.

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If that's correct and the secretary's action, even if legally improper, can moot a case, then this case is moot, isn't it?

[00:03:34] Speaker 00:
No, Your Honor.

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implicit in the question that Your Honor has asked is the remedy of a merits error.

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Jurisdiction is different.

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Why do you care?

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I mean, this Judge Hughes said, why do you care?

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Your client has gotten the money.

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Why are you fighting with the government about this?

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What possible relief is available to your client that hasn't already been granted?

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relief that is granted within a jurisdictionally sound decision.

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Does your client care about that?

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I bet your client couldn't care less about whether the money he got was jurisdictionally sound or not.

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He got the money he wanted.

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My client does care about this.

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He is an agent who has dedicated his career to representing military veterans.

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And the way that the Veterans Court decision reads is, yes, this fee is one minor issue.

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So he wants an advisory opinion from us.

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No, Your Honor, he asked this court to vindicate the Congress's grant of jurisdiction to the Veterans Court that is not concurrent, not dual.

[00:04:42] Speaker 02:
So you want us to tell the Veterans Court that they should not have dismissed this case as moot, but rather should have reversed the board's finding that his notice of appeal was improper and ordered the board to remand it to the regional office to adjudicate his fee request.

[00:05:01] Speaker 02:
That's correct, Your Honor.

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And they've already done all of that.

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They've already adjudicated his fee request and given him his money.

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So you want us to waste everybody's time and also put this, I mean, this case could take years to resolve by the time you send it back to the Veterans Court.

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They vacate and remand, the board vacates and remands, and it goes back to the RO.

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I think if we do that, you have to pay the money back now and wait till, because there's no decision that granted him money.

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You want us to take away his money and wait for four or five years or more to get it back?

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That's what you're asking for.

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If you're not asking for that, then you're asking for an advisory opinion that the Veterans Court improperly found it moot, even though it is moot.

[00:05:46] Speaker 00:
I respectfully disagree, Your Honor, because again, this is jurisdiction.

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Invidicating Congress's choice to make that jurisdiction with the Veterans Court exclusive is not and cannot be a waste of time.

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That makes no sense at all.

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That makes no sense.

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There's no controversy.

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The underlying controversy here is gone.

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He's got his money.

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You're not giving the money back.

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Your argument is nonsensical.

[00:06:12] Speaker 00:
The appeal was from the board's September 2021 dismissal order.

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When Mr. Percivali made that appeal, there was injury from the board's dismissal.

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And the entry was that he hadn't gotten his fees and he was appealing the board's dismissal of his appeal on those fees.

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Since then he has gotten his fees.

[00:06:36] Speaker 01:
Yes, he has.

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So there's no entry.

[00:06:39] Speaker 01:
It seems to me your position has to be that what the board did is void and never should have paid you the money, but yet you accepted the money and it doesn't sound like you're ready to give it back.

[00:06:52] Speaker 01:
So.

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In addition to whatever other problems there may be, it seems sort of like a judicial estoppel problem, doesn't it?

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I mean, if you believed what you're saying, and I'm not talking about you personally, but if the board had no jurisdiction at the moment that cut the check to your client, you shouldn't have taken it, right?

[00:07:14] Speaker 00:
I'm struggling because it's

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mechanism through which payment happens, there's not a great chance ahead of time to say, no, this is not going to happen.

[00:07:24] Speaker 00:
It's direct deposit.

[00:07:27] Speaker 01:
You must have some notice the board was looking at this case, even though your appeal was pending.

[00:07:32] Speaker 00:
Yes.

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You didn't ask the board to stay its proceedings or?

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tell the board, look, as much as we'd love to win here, the proper thing is for us to wait for the appeal to be over.

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You didn't do anything like that, did you?

[00:07:46] Speaker 00:
Well, that's correct, Your Honor.

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But Your Honor, it was also exactly right that the board's actions were void.

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If the secretary, after your notice of the appeal, had come into the Veterans Court and filed a motion saying, we agree that this appeal shouldn't have been dismissed by the board, and we agree to pay,

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please grant this motion and dismiss the case.

[00:08:06] Speaker 00:
Would that have been procedurally proper?

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That would have been procedurally correct.

[00:08:09] Speaker 02:
It would have been in line with Griggs, with Cerullo, and the principle then that- So the only error here is that the secretary didn't ask for the Veterans Court's permission.

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Yes, Your Honor.

[00:08:19] Speaker 02:
So that's a legal error.

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But that's something for the Veterans Court to enforce.

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And if they find that error that the case is moot or that error was harmless because your client got all the relief that was granted, we don't even have anything to review, do we?

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We certainly can't second guess the Veterans Court's determinations on harmless error or whether it found the case moot, because that's application of walled effect.

[00:08:46] Speaker 00:
With respect to your honor, the Veterans Court made a jurisdictional determination.

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This court absolutely has jurisdiction to review the Veterans Court's jurisdiction.

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You have to have a case of controversy.

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We do have a case of controversy because the board's unilateral action after the filing of notice of appeal, when exclusive jurisdiction... What's the harm?

[00:09:05] Speaker 00:
The harm is that what the board did is a legal nullity.

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And so the harm is from the still, from the September 2021 dismissal order from the board.

[00:09:14] Speaker 03:
He's not entitled to keep the money?

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It would be absolutely proper at this point for the Veterans Court to hold that the board lacked jurisdiction to find him eligible and remand to the agency of jurisdiction and hold him presently not entitled to the money.

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Now, I would hope that on return to the veterans.

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Is he going to repay the money with interest and then seek a new adjudication?

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I'm sure that that's not the case.

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If it was a legal nullity, then he is holding money he's not entitled to, and he needs to pay it back.

[00:09:55] Speaker 00:
Well, and my point is that the results don't matter in terms of whether he has to return the money or not.

[00:10:00] Speaker 02:
What matters here... This is a waste of our time.

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This is absolutely a waste of our time.

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It is a waste of your client's time.

[00:10:09] Speaker 02:
I suspect it's all about getting attorney's fees, because if the secretary had filed a motion to remand that was granted, he would have been the prevailing party and could have gotten more fees for the appeal.

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Maybe that's something the secretary should think about doing, which it does routinely.

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I'm not sure why they weren't filing.

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a joint motion for remand here.

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But there is nothing we can grant or that the Veterans Court can grant beyond attorney's fees, which is what you're seeking, or agent fees, and that's what he's already gotten.

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You want a legal ruling that has no monetary effect.

[00:10:44] Speaker 00:
I come before this court quite a bit.

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This is one of the most important cases that this court has before.

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The Veterans Court permitting the board to usurp Congress's... Do you think the board can't use the mootness doctrine or the court?

[00:11:00] Speaker 02:
Do you think it's impermissible for the Veterans Court to look at a case and say, whatever the legal errors here, the claim is moot?

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Do you think that's legally impermissible?

[00:11:10] Speaker 00:
The Veterans Court may do so when you're talking about you're outside of the scope of jurisdiction in terms of

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If the VA is within its jurisdiction to make an action that moots the Veterans Court appeal, that's fine.

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That happens all the time.

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And I should say Veterans Court case, Veterans Court petition.

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These areas where on petition, as opposed to appeal, there can be concurrent or dual jurisdiction.

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But when Congress has said, 38 USC, Section 72, 52A, that the jurisdiction of the Veterans Court is exclusive, that's exactly what it meant.

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permit otherwise, then opens up the Veterans Court in every single appeal before it to the Secretary usurping the Veterans Court's very right to act.

[00:11:59] Speaker 02:
If the Veterans Court doesn't want that to happen, they can deny the motion to dismiss as moot and order the secretary to do something else.

[00:12:07] Speaker 00:
But the Veterans Court, what the Veterans Court want doesn't really matter.

[00:12:10] Speaker 00:
It's what Congress wants.

[00:12:11] Speaker 03:
I think this whole question of the Veterans Court authority would be better addressed in the Curtin's case, where the underlying controversy hasn't become moot.

[00:12:28] Speaker 03:
I just don't think there's an argument that this case isn't moved.

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But it's your time.

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You can reserve time.

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You can continue to argue.

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But you can see we're not terribly receptive.

[00:12:43] Speaker 00:
I will reserve the remainder of time for rebuttal and hope in that three minutes to persuade you.

[00:12:53] Speaker 03:
Mrs. Havasie?

[00:12:56] Speaker 03:
Morning, Your Honor.

[00:12:57] Speaker 03:
You can argue the way you want to, but it seems to me you might be better arguing these issues in the other case.

[00:13:06] Speaker 03:
You've filed a single brief.

[00:13:08] Speaker 00:
Then we rest on a brief, Your Honor.

[00:13:09] Speaker 00:
Thank you.

[00:13:12] Speaker 03:
Okay.

[00:13:12] Speaker 03:
Since there's nothing to rebut, I think this case is submitted.

[00:13:17] Speaker 03:
We thank both counsel.