[00:00:00] Speaker 00: Our next case is Marcos Greenidge versus the Secretary of Veterans Affairs, 2024-2044. [00:00:08] Speaker 00: Mr. Dohakis. [00:00:11] Speaker 00: Thank you, Your Honor. [00:00:12] Speaker 01: May it please the Court? [00:00:13] Speaker 01: Kenny Dohakis for Mr. Greenidge. [00:00:16] Speaker 01: On behalf of Mr. Greenidge, I do want to thank the Court for the opportunity to present his appeal. [00:00:21] Speaker 01: Mr. Greenidge is a prevailing party. [00:00:23] Speaker 01: Because the Veterans Court's order identified agency error, and both required additional agency proceedings, and materially altered the legal relationship between the parties. [00:00:35] Speaker 00: Well, he didn't win on the 10%. [00:00:37] Speaker 00: He just had another opportunity to argue for it, right? [00:00:42] Speaker 01: No, Your Honor. [00:00:43] Speaker 01: This case, we think, is more similar to Dover than it is to Halpern. [00:00:48] Speaker 01: And I think that it does, admittedly, fall somewhere in between those two. [00:00:52] Speaker 01: But when you look at what happened in Dover, the Veterans Court, like here, dismissed an appeal, or dismissed a decision by the board, because it found that it acted without jurisdiction, because there was no claim put forth [00:01:10] Speaker 01: to the board that was adequately pled. [00:01:13] Speaker 01: And with the CUE really not relevant here, it has to have an adequate pleading in order for it to be a valid claim. [00:01:20] Speaker 01: And so what the court did in Dover was dismiss the appeal [00:01:25] Speaker 01: And the result of that dismissal was that the veteran there could present that cue issue again, which he did, or his surviving spouse did, and was able to prevail on that. [00:01:37] Speaker 01: That's what happened here. [00:01:38] Speaker 01: And it's even more, I think, more apparent in this case. [00:01:42] Speaker 03: Can I back up to what you said at the beginning? [00:01:44] Speaker 03: Because I'm a little confused about how you view what happened here at the Veterans Court. [00:01:52] Speaker 03: I mean, clearly, they found that the board-elect jurisdiction, that's an agency error. [00:01:56] Speaker 03: But then you suggested that they required further action. [00:02:01] Speaker 03: But I didn't see that in this case. [00:02:03] Speaker 03: I thought they just dismissed the appeal, and there was no remand or anything. [00:02:09] Speaker 03: So on the board's order, Your Honor, [00:02:12] Speaker 01: I'm sorry, the court's order. [00:02:14] Speaker 03: Yeah, I thought there was a parallel proceeding that had already been instituted that was then allowed to go forward. [00:02:20] Speaker 03: Right. [00:02:20] Speaker 03: But that doesn't mean that the Veterans Court told, in this case, I'm not trying to trick you. [00:02:25] Speaker 03: I think this actually is something that helps distinguish it from Halpern. [00:02:28] Speaker 03: But we have cases that are all over the place on this issue. [00:02:33] Speaker 03: And this one, I think, is particularly tricky. [00:02:36] Speaker 03: But I don't want you to, like, [00:02:38] Speaker 03: overstate your case to try to shoehorn it into the, you win if you get a remand based on agency error and no retention of jurisdiction, because that's not this case, right? [00:02:52] Speaker 01: Right. [00:02:53] Speaker 01: Yeah, and I'm glad to hear you say that, because I agree. [00:02:56] Speaker 01: There's a lot of different positions and procedures that this court has dealt with. [00:03:03] Speaker 01: And this is, unfortunately, a very unique one, but on page 158, [00:03:08] Speaker 01: Number one, the court's order says, the board issued the decision without jurisdiction. [00:03:15] Speaker 01: The veteran currently has a proper appeal pending. [00:03:18] Speaker 01: Thus, the correct remedy is to vacate and let the pending appeal move forward. [00:03:22] Speaker 01: And we think that that's enough. [00:03:23] Speaker 03: So they just vacated and then that was that. [00:03:27] Speaker 03: In this civil... The other thing that's tricky is this is not the regular district court to appellate court where something like this probably wouldn't get you prevailing party status. [00:03:37] Speaker 03: I mean, I think the Supreme Court president is pretty clear that it's different when it's a new civil action in the Court of Appeals for the first time, which is what we have here. [00:03:47] Speaker 03: Yes, Sean. [00:03:48] Speaker 03: I didn't see it in the appendix. [00:03:51] Speaker 03: What was specifically he asking for in his [00:03:55] Speaker 03: appeal brief. [00:03:57] Speaker 03: Was he asking for a review of the fee award or was he just asking for what he got, which is the vacation of the decision? [00:04:04] Speaker 01: He wanted the decision vacated so that he could then pursue his appeal, which is the exact remedy he got. [00:04:12] Speaker 01: And I think when you look at CRST, that's very helpful in that regard. [00:04:16] Speaker 03: Yeah, because CRST makes clear that even though there's a lot of language in these fee shifting cases about prevailing party requires some relief on the merits, [00:04:25] Speaker 03: Merits means something different than merits of the actual underlying claim. [00:04:29] Speaker 03: Sometimes it just means relief on what you're seeking. [00:04:34] Speaker 03: And your view is here he was seeking to have that award decision vacated because it was an error. [00:04:41] Speaker 03: The Veterans Court agreed with him, and that was sufficient to confer a prevailing party status. [00:04:48] Speaker 01: Yes, Your Honor. [00:04:49] Speaker 03: OK. [00:04:50] Speaker 03: And I think you started going into it. [00:04:51] Speaker 03: Can you just, though, the case I struggle with the most here, and I do see some differences, but it's very close, is Halpern. [00:04:58] Speaker 03: Because it's, at least procedurally, some of it's the same. [00:05:01] Speaker 03: There was a board decision, and then it turned out the board didn't have jurisdiction to make that. [00:05:07] Speaker 03: I think it was about attorney fee eligibility in the first instance. [00:05:11] Speaker 03: And so the Veterans Court said the board lacked jurisdiction, ordered the board to dismiss it. [00:05:17] Speaker 03: What's the difference here? [00:05:19] Speaker 03: It's just kind of the same thing as the board lacked jurisdiction to do what it did and the court vacated that decision. [00:05:27] Speaker 01: The difference that I see between the two, Your Honor, is that in Halpern, there was nothing before the agency at all until this went to the board and the board made a decision. [00:05:37] Speaker 01: In this case, we had a decision by the AOJ that had been denied. [00:05:41] Speaker 01: And the time to appeal had not lapsed. [00:05:43] Speaker 01: And the board came in and issued this decision cutting off Mr. Grinch's ability to appeal. [00:05:49] Speaker 01: And I just want to point out, too, as the secretary acknowledged in his brief, on his appeal, the board awarded a 70% rating from a 10% back to 1983. [00:05:59] Speaker 01: So clearly, this was a major hurdle. [00:06:02] Speaker 01: And like in Dover, [00:06:04] Speaker 01: Mr. Dover had presented his claim, and the board acted without authority, different kind of authority, but they still acted without authority nonetheless. [00:06:15] Speaker 01: And that's why this court said that, we think, that there was a prevailing party because it removed this hurdle to allow him to then proceed with the claim that had already been presented. [00:06:28] Speaker 01: In Halpern, it was an attorney fee issue that, per the statute, [00:06:32] Speaker 01: The VA never had any jurisdiction ever to address at all because it was not a 20% or less fee withholding contract. [00:06:39] Speaker 03: Is it important Halpern also that his appeal to the Veterans Court was not just about jurisdiction, it was about he wanted the eligibility to terminate? [00:06:48] Speaker 01: And I think that's the other point, Your Honor. [00:06:49] Speaker 01: Thank you for bringing that up. [00:06:52] Speaker 01: The sole issue in this appeal on the merits was to undo this final decision. [00:06:59] Speaker 03: He got all the relief he possibly could have gotten. [00:07:01] Speaker 01: Yes, Your Honor. [00:07:02] Speaker 01: That was. [00:07:03] Speaker 01: Because there really was seeking. [00:07:04] Speaker 01: Exactly, Your Honor. [00:07:05] Speaker 01: And there really was no legal authority for anybody to have ruled on this until he filed his notice of disagreement. [00:07:14] Speaker 01: And then, of course, as I mentioned, the notice of disagreement was filed while this appeal was pending at the court because he didn't want to lose the time to appeal. [00:07:22] Speaker 01: and once this hurdle, once this barrier was removed. [00:07:25] Speaker 03: Let me ask you this. [00:07:26] Speaker 03: If instead of just dismissing the appeal, the Veterans Court had said agents, or you aired [00:07:33] Speaker 03: we're remanding it to you to dismiss for lack of jurisdiction. [00:07:40] Speaker 03: That seems to fit in line with the cases where I don't remember the social security analogy. [00:07:46] Speaker 03: There's a sentence two and a sentence four. [00:07:48] Speaker 03: I can't keep them straight. [00:07:49] Speaker 03: But one of them says, and I think this is in our Motorola case maybe, that if the court [00:08:00] Speaker 03: remands based upon agency error without a retention of jurisdiction, then that conferred prevailing party status. [00:08:07] Speaker 03: Is that correct? [00:08:08] Speaker 03: I think that's right. [00:08:09] Speaker 03: That's our case law. [00:08:11] Speaker 03: So if they had remanded here to the board because they erred and said dismiss it, that would be a remand, no retention of jurisdiction based upon agency error. [00:08:22] Speaker 03: And so I'm going to ask the government this, but it seems like that would qualify for prevailing party status. [00:08:31] Speaker 01: I think it would, Your Honor, under the same rationale. [00:08:33] Speaker 01: But I think that in Hudson, the principally. [00:08:38] Speaker 03: I guess what I'm trying to get at is. [00:08:42] Speaker 03: Does it matter? [00:08:42] Speaker 03: Assuming that first thing, the remand based on agency error with instructions to dismiss qualifies, does it matter that the court just dismiss the appeal outright rather than the remand for the board to dismiss? [00:08:57] Speaker 03: Because it seems like in that instance, it would be kind of an incentive for the VA to ask for the dismissal of the appeal rather than the remand for the board to dismiss to avoid fees. [00:09:08] Speaker 01: I think, Your Honor, that it doesn't matter how the court frames its order. [00:09:13] Speaker 01: What matters is what actually happens. [00:09:15] Speaker 01: And Hudson v. Principi, which the Secretary talked about in his brief, outlined that. [00:09:20] Speaker 01: I think that very scenario happened. [00:09:22] Speaker 01: The court made one order, and this court said, well, that was the wrong order, but we're going to actually look at what happened and whether you were prevailing in your action. [00:09:34] Speaker 01: regardless of how the court frames it, how the secretary asks for relief, what we need to focus on is was there an error, here the parties agree there was, and if there was, did [00:09:47] Speaker 01: The court's order either require additional proceedings at the agency, which it did here, or was there material alteration in their legal relationships, which there was here as well. [00:09:58] Speaker 01: And I think that it's very evident, particularly with the fact that he had, and again, I want to emphasize the distinguishing characteristic between this and Dover. [00:10:08] Speaker 01: over cases like Halpern was that there was something there at the VA that was waiting for this to be resolved in order for it to proceed. [00:10:17] Speaker 01: And in Halpern, there was just nothing. [00:10:18] Speaker 02: There's another procedural vehicle already on the tracks, which is the other appeals. [00:10:24] Speaker 02: To Judge Hughes' point, when this appeal issue is resolved, there doesn't need to be a remand. [00:10:31] Speaker 02: And I think that's accounted for in the decision, right? [00:10:34] Speaker 01: Correct, Your Honor. [00:10:34] Speaker 01: Yes, I think that's an accurate. [00:10:36] Speaker 03: So that explains why they just dismiss rather than remanded, but it wouldn't change the nature of the prevailing party characterization. [00:10:45] Speaker 03: If you had not had a parallel claim pending, you still would have said getting rid of this case, which was all you were seeking, the board decision, which was error. [00:11:01] Speaker 03: even if you hadn't, even if what it did was then allow you to go file a new case would have made you a prevailing party size. [00:11:06] Speaker 03: I'm just, you know, we've got all these factual things. [00:11:09] Speaker 03: I want to make sure that we're not, because this is not stuff that seems like it should be piecemeal. [00:11:14] Speaker 03: This is good. [00:11:16] Speaker 03: This is bad. [00:11:16] Speaker 03: This is good. [00:11:17] Speaker 03: We should have a clear, coherent line. [00:11:19] Speaker 03: And I'm trying to understand [00:11:23] Speaker 03: I mean, it helps explain why they didn't remand with instructions to dismiss rather than just dismiss, because there's stuff going on already. [00:11:32] Speaker 03: It doesn't matter. [00:11:34] Speaker 03: But if there hadn't been stuff, I assume you would say he's still a prevailing party because he got the erroneous board decision blocked or overturned. [00:11:45] Speaker 01: I don't think so, Your Honor. [00:11:47] Speaker 01: Actually, I think if there was no claim pending, that's what Halpern was about. [00:11:53] Speaker 01: Robinson, I think it was, was about, in that there was nothing there to, there was no agency follow-up after this decision. [00:12:06] Speaker 01: If the board had just, out of the blue, issued a decision denying CUE or any claim, there was never anything at the agency whatsoever and the veteran appeals. [00:12:17] Speaker 01: I think that under this court's case law, there is no prevailing party because they didn't get anything [00:12:23] Speaker 01: other than an opportunity to possibly, like Halpern, present a claim. [00:12:29] Speaker 01: But again, this case in Dover in particular, there was already something at the agency. [00:12:34] Speaker 03: I think I see where you're going. [00:12:35] Speaker 03: The point of it is not so much that this removed an obstacle. [00:12:39] Speaker 03: It's really equivalent to all these other cases where we see [00:12:47] Speaker 03: of Appeals correction of an agency error and it's equivalent to a remand based upon that agency error which qualifies, it's just there wasn't a need for a remand here because it was already preceded. [00:12:59] Speaker 01: Exactly, and that's why in our briefing we talked about and we kind of clarified in a reply brief, it has [00:13:05] Speaker 01: the color of a remand, but they couldn't remand because of what the board did, not because of anything that the veteran- Well, I think they could have. [00:13:12] Speaker 03: I mean, that's what I was getting at. [00:13:13] Speaker 03: I think they wouldn't have remanded for further proceedings on the merits, but what they could have instead of just dismissing the appeal is saying, board, you erred. [00:13:23] Speaker 03: you didn't have jurisdiction, we're remanding it to you to dismiss for lack of jurisdiction, which is sometimes what we do in district court to appellate court stuff. [00:13:35] Speaker 03: And I don't want to confuse that, because that probably isn't a prevailing part over there. [00:13:38] Speaker 03: But they ask the proper entity that made the improper jurisdictional decision to change the decision. [00:13:47] Speaker 03: And I think that's pretty clear. [00:13:49] Speaker 03: I'm sorry, I've taken you way into your bottle. [00:13:51] Speaker 03: But it seems to me pretty clear that if that's what had happened is the Veterans Court had said to the board, you aired, you don't have jurisdiction. [00:13:59] Speaker 03: We're remanding for you to dismiss that that's a prevailing party. [00:14:04] Speaker 01: Yes, Your Honor. [00:14:04] Speaker 01: But again, I think it's because of all the other things and not necessarily because of how they framed the order. [00:14:09] Speaker 01: Yeah. [00:14:11] Speaker 00: We will give you your full three minutes for rebuttal. [00:14:14] Speaker 00: Thank you, Your Honor. [00:14:16] Speaker 00: Mr. Smith. [00:14:25] Speaker 04: Good morning, Your Honors. [00:14:26] Speaker 04: May it please the court? [00:14:28] Speaker 04: Mr. Greenidge claims that he's the prevailing party, despite the fact that the veterans' courts did not award him any benefits, did not remand his case. [00:14:37] Speaker 03: OK, so from the outset, I think there's a lack of clarity in all of this. [00:14:42] Speaker 03: And your continuing advice is suggesting that in order to get prevailing party status, you have to have some relief in terms of the benefits you're seeking. [00:14:52] Speaker 03: And that's mostly because when we're talking about this stuff, that's what's going on. [00:14:56] Speaker 03: CSR team made very clear that it's not necessarily the underlying merits of the underlying claim. [00:15:04] Speaker 03: It's whether you've got relief on the merits of what [00:15:08] Speaker 03: you were seeking and clearly there in CSRT, it wasn't the merits of the claim. [00:15:13] Speaker 03: It was a jurisdictional thing. [00:15:15] Speaker 03: So address for me, his appeal to the Veterans Court here was solely seeking to have the board's decision dismissed for lack of jurisdiction. [00:15:26] Speaker 04: Your honor, I would respectfully disagree with that. [00:15:27] Speaker 04: And that is actually a point I did want to raise in response to some of the comments by my colleague in that before the Veterans Court, he was actually seeking a remand. [00:15:35] Speaker 04: And I think that is a very important point because here the court declined to remand and dismissed. [00:15:42] Speaker 04: So they're seeking a remand for what? [00:15:45] Speaker 03: For proceedings on the parallel claim? [00:15:48] Speaker 04: Let me quote the claim so I get this correct. [00:15:51] Speaker 04: Remands of the board can in turn remand a claim for the RO to issue a new statement of the case, Your Honor, and that's at Appendix 158. [00:15:58] Speaker 04: So this isn't quite [00:16:00] Speaker 04: the situation that was described by my colleague, where he was simply seeking to get out of this stream and continue his other opponent's stream. [00:16:08] Speaker 03: I'm sorry, if he would have gotten that, wouldn't he have been entitled to prevailing party status? [00:16:13] Speaker 04: Potentially, your Honor, but he did not prevail on that. [00:16:16] Speaker 04: So we have the situation where he did not. [00:16:18] Speaker 03: But he prevailed on the alternative argument that the board lacked jurisdiction. [00:16:21] Speaker 04: Your Honor, that was the government's argument. [00:16:24] Speaker 04: I respectfully decline that this was an alternative argument. [00:16:26] Speaker 03: Well, it doesn't really matter. [00:16:30] Speaker 03: The test for prevailing party status in these agency cases is, and this is unusual, but I think I'm not going to get caught up in the fact that they dismiss rather than remand it. [00:16:40] Speaker 03: Because I don't think you all can avoid attorney fees by getting the Veterans Court to dismiss rather than remand. [00:16:46] Speaker 03: This is functionally equivalent to a remand to me. [00:16:48] Speaker 03: And so if it's an appeal, the Veterans Court issues a decision, finds that there's agency error and remands without retaining jurisdiction. [00:17:00] Speaker 03: You agree that in most circumstances, under our precedent, that qualifies as prevailing. [00:17:04] Speaker 04: That is the standard that this Court is articulating, Your Honor. [00:17:07] Speaker 03: That's correct. [00:17:08] Speaker 03: And so if what had happened here was [00:17:13] Speaker 03: They appealed. [00:17:15] Speaker 03: The Veterans Court said the board shouldn't have issued the decision. [00:17:17] Speaker 03: It lacked jurisdiction. [00:17:19] Speaker 03: That's an agency error. [00:17:21] Speaker 03: We remand to the board to dismiss for lack of jurisdiction. [00:17:25] Speaker 04: Would that be prevailing party status under this party's excuse me under this court's president Robinson you're wrong or that's precisely what occurred. [00:17:32] Speaker 04: There was a remand for instructions to dismiss and that this one found that there was not a prevailing party. [00:17:38] Speaker 03: You're going to have to tell me the fact. [00:17:40] Speaker 03: The problem is that you point out these general things but the facts of all these cases are different. [00:17:46] Speaker 04: I do agree with Your Honor, there are factual distinctions at play here. [00:17:49] Speaker 04: That being said, I do think that we are much closer to the situation that you just described, where this is a remand, if there had been a remand, which there was not. [00:17:58] Speaker 03: So here, this is it. [00:17:59] Speaker 03: I just looked at Robinson. [00:18:01] Speaker 03: Robinson specifically finds the remand wasn't predicated on an administrative error. [00:18:07] Speaker 03: You don't get prevailing party status. [00:18:08] Speaker 03: But that's not the hypothetical here, and that's not what actually would have happened if there was a remand. [00:18:13] Speaker 03: This remand would have been specifically predicated on board error. [00:18:18] Speaker 03: And if that's the case, [00:18:20] Speaker 03: A remand predicated on agency error without retention of jurisdiction qualifies you for prevailing party status, right? [00:18:28] Speaker 04: Provided there's a legal change in the, excuse me, a change in the party's respective legal positions vis-a-vis one another, Your Honor. [00:18:37] Speaker 04: And that's what we don't have here. [00:18:39] Speaker 04: This case, much further into this, falls into the line of cases that this court has described, where when you revive, and I borrow the court's own previous metaphor here, when you bring a disqualified boxer back into the ring and allow them... I know we have that language, but you know what? [00:18:58] Speaker 03: That language can be interpreted in a lot of different ways. [00:19:02] Speaker 03: And sometimes when you bring them back in the ring, they are a prevailing party. [00:19:06] Speaker 03: It's just it is. [00:19:07] Speaker 03: We can find cases that that's exactly what's happened. [00:19:11] Speaker 03: And it's an agency error that allows them to continue going, but it gives them prevailing party status. [00:19:19] Speaker 04: I'm not sure that I agree with that characterization, Your Honor, but I understand that is your position. [00:19:24] Speaker 04: I would further argue that here we have the situation of because there was a pending appeal and a separate stream, that in reality this appeal was somewhat [00:19:36] Speaker 04: Although it has been characterized as some type of an obstacle, that's very unclear based on the facts before us, Your Honor. [00:19:42] Speaker 04: The appeals were copending for 13 months. [00:19:45] Speaker 04: So this wasn't a situation where we had the, for lack of a better word, the appeal issue here versus the NOD appeal, if you will. [00:19:53] Speaker 04: The NOD appeal was not prevented from moving forward then on the basis of this appeal. [00:19:57] Speaker 04: And in fact, there's no suggestion that that would have been the case. [00:20:01] Speaker 03: It's for the same stuff, though, right? [00:20:03] Speaker 03: It's for the same claims. [00:20:05] Speaker 03: And the board reached out and prematurely decided that the veteran wasn't entitled. [00:20:09] Speaker 04: We agreed. [00:20:10] Speaker 04: But while that was pending, the NOD had been filed. [00:20:12] Speaker 04: They were both sitting out there. [00:20:14] Speaker 03: I'm sorry. [00:20:15] Speaker 03: You all would have definitely argued that that board decision blocked the other one. [00:20:21] Speaker 04: We had it in the preceding 13 months, Your Honor. [00:20:24] Speaker 04: But I take your point. [00:20:25] Speaker 04: And I respect your argument. [00:20:30] Speaker 00: Judges don't make arguments. [00:20:31] Speaker 00: They render decisions. [00:20:33] Speaker 04: Correct, Your Honor. [00:20:34] Speaker 04: My mistake. [00:20:34] Speaker 00: This hasn't yet occurred. [00:20:36] Speaker 04: My mistake, Your Honor. [00:20:39] Speaker 03: Let me just ask you a kind of broader level question. [00:20:42] Speaker 03: Assuming that that improper board decision would have blocked any relief on the merits, what else are they supposed to do? [00:20:50] Speaker 03: They have to file an appeal to the Veterans Court to say the board didn't have jurisdiction to reach this. [00:20:57] Speaker 03: And isn't the fundamental purpose of IJA to allow claimants that don't have sufficient resources to do exactly that, to challenge improper government action? [00:21:11] Speaker 03: This is not one of these things where the Veterans Court said, oh, you failed to look at this, reconsider, or there may have been a change in the law, but we don't know whether you're entitled. [00:21:21] Speaker 03: This is actually specific agency error. [00:21:26] Speaker 03: Everybody agrees that it was agency error. [00:21:28] Speaker 04: Yes, Your Honor. [00:21:28] Speaker 03: And so when somebody challenges an agency for committing a wrongful error, they get that corrected. [00:21:37] Speaker 03: Why shouldn't they get fees for that? [00:21:40] Speaker 04: Because this really only maintained the status quo for the pending appeal. [00:21:45] Speaker 03: How did it maintain the status quo if the prior improper board decision, and I know you say it wouldn't, but I'm not going to take your word for that. [00:21:54] Speaker 03: I spent a lot of time with the VA myself. [00:21:57] Speaker 03: That first board decision that denied benefits denied benefits. [00:22:02] Speaker 03: And they would have said, this is binding on you. [00:22:04] Speaker 03: And so your other thing can't go forward. [00:22:08] Speaker 03: And if he hadn't appealed that, they might have said, your time barred from appealing that. [00:22:13] Speaker 03: And so you're out altogether. [00:22:16] Speaker 04: I'm not sure about the time bar, given that- Let's just assume that's what would happen. [00:22:20] Speaker 04: Understood. [00:22:20] Speaker 03: Because we can't hope for the best from the VA in these kind of circumstances. [00:22:27] Speaker 03: Let's just assume that if he hadn't appealed this, the VA would have relied on the improper board decision to deny him benefits in his parallel case. [00:22:37] Speaker 03: Then he had to challenge that, right? [00:22:39] Speaker 04: Yes, Your Honor. [00:22:41] Speaker 03: And you're saying that even if he's fully successful in challenging that, he's not entitled to fees? [00:22:48] Speaker 04: I would push back slightly on the fully successful, Your Honor, but yes, that is my argument, correct. [00:22:54] Speaker ?: OK. [00:22:57] Speaker 04: And I do believe that this case maintains somewhat is factually very similar to the Kabachuti case, which we have not discussed, in which, again, there was a parallel proceeding. [00:23:11] Speaker 04: The appeal at issue was dismissed in light of the other appeal, which had mooted it. [00:23:18] Speaker 04: There was agency error in both cases. [00:23:20] Speaker 04: It was remanded with instructions. [00:23:24] Speaker 04: Because the case did not address the merits and the other appeal was allowed to proceed, that was viewed as a non-prevailing party situation, Your Honor. [00:23:33] Speaker 04: Similarly, I would point to Winters, where there was again a remand to allow specific consideration of the board's findings. [00:23:41] Speaker 04: And that, too, was found not to be a prevailing party when it maintained simply the ability of the appellant to continue the current stream. [00:23:49] Speaker 04: I understand that it appears that none of this was considered moot. [00:23:54] Speaker 02: As Judge Hughes has mentioned repeatedly, this was vacated because it was agency heir. [00:23:59] Speaker 02: It wasn't mooted. [00:24:00] Speaker 02: It wasn't an effort to consolidate things and let the other appeal go forward. [00:24:05] Speaker 02: There was a substantive decision. [00:24:06] Speaker 04: That is true. [00:24:07] Speaker 04: In the case that I just mentioned, the Cavaccuti case, the VA actually granted the relief that was entitled to the appellant in that case. [00:24:18] Speaker 04: And then the appellant sought Egypt fees, having received the relief that they had been entitled to. [00:24:23] Speaker 04: This court declined to find him a prevailing party because that separate proceeding had been mooted in light of the other proceeding. [00:24:30] Speaker 04: So although he was ultimately successful in achieving the merit and the relief that he was seeking, because that [00:24:36] Speaker 04: For lack of a better word, collateral appeal was dismissed and simply placed the appellant in the same position he would have been in. [00:24:45] Speaker 04: He was judged by this court not to be the prevailing party. [00:24:49] Speaker 04: Frankly, Your Honor, in these situations where there are parallel proceedings, this court has repeatedly, both in that Cavaccuti case, in Halpern 3, determined that when we simply allowed the litigant to proceed with the other [00:25:04] Speaker 04: parallel proceeding, he cannot be judged to have been the prevailing party because he has not received any adjudication on the merits of his claim. [00:25:16] Speaker 04: And I just want to check my notes here to make sure that I [00:25:20] Speaker 04: Yeah, I do want to point out that, again, in the previous discussion with my colleague, there was discussion about cutting off the appeal. [00:25:28] Speaker 04: And again, the facts of this case suggest that was not the case. [00:25:31] Speaker 04: He was allowed to proceed with his appeal via a notice of disagreement, which is the proper jurisdictional remedy. [00:25:40] Speaker 04: I admit I was slightly confused by my colleague's claim that if there had not been a parallel proceeding, that this would somehow have removed him from the prevailing party [00:25:53] Speaker 03: I'm not so sure about that either, but I'm not sure that helps you. [00:25:57] Speaker 04: I just wanted to make sure that I'm not sure that is, in fact, the case, Your Honor, and I just wanted to mention that. [00:26:01] Speaker 03: I think it doesn't necessarily matter whether there was a parallel proceeding. [00:26:06] Speaker 03: If the civil action in this case, which is what we're looking at for prevailing party status, is his challenge to an improper board decision and he gets that overturned, whether or not there's a parallel proceeding to me doesn't [00:26:20] Speaker 03: I think he's giving up stuff he doesn't need to. [00:26:24] Speaker 03: But it doesn't help you if I think that's prevailing party status. [00:26:28] Speaker 03: It doesn't matter to me whether there's a parallel action. [00:26:31] Speaker 04: I tend to agree with you, Your Honor. [00:26:33] Speaker 03: All it does is make it seem more like what is prevailing party status, which is [00:26:40] Speaker 03: a finding of agency error, and a remand for further proceedings without retention of jurisdiction. [00:26:48] Speaker 03: And it seems a lot more like that, even though that's not what happened directly here because of the parallel proceeding. [00:26:58] Speaker 04: I respectfully disagree, Your Honor. [00:26:59] Speaker 04: But absent any further questions, I will cede the remainder of my time. [00:27:05] Speaker 00: Thank you, Mr. Smith. [00:27:07] Speaker 00: Mr. Dohakis has some rebuttal. [00:27:10] Speaker 01: Thank you, Your Honor. [00:27:15] Speaker 03: I want to emphasize CRST is very helpful to our case because it, as Judge... Do you have any response to... I tried to read and remember as many of these cases as I could, but I don't have all of them in my binder. [00:27:27] Speaker 03: That K case he was talking about... Cavachuti? [00:27:31] Speaker 03: Yeah. [00:27:32] Speaker 01: I read it in preparation, but I admit I don't remember these specific facts because I didn't think it really applied here. [00:27:39] Speaker 01: But the reason that one is inapplicable is because it was a writ petition. [00:27:43] Speaker 01: And if I remember correctly, that was the case where the veteran was trying to get the, and I'm not going to speak because I might be mixed up with others, but it was a writ petition. [00:27:54] Speaker 03: We can go back and read it ourselves. [00:27:55] Speaker 01: We don't think that it applies. [00:27:57] Speaker 01: Winters was also, the secretary brought up in their brief, [00:28:00] Speaker 01: There was a finding of no error, and that's why that case came out the way it did. [00:28:07] Speaker 01: Robinson, as you pointed out, Your Honor, there was no error. [00:28:10] Speaker 01: And I want to just emphasize, too, there was a second part of that decision which talked about material alteration of the legal relationship. [00:28:17] Speaker 01: And what that case turned on was that the Veterans Court, in its discretion, allowed the veteran to present a waived claim, which is not what we have here. [00:28:30] Speaker 01: And the secretary's focus on what he asked for, a remand for an SOC versus a dismissal, is, again, irrelevant. [00:28:38] Speaker 01: The board's decision was in error. [00:28:41] Speaker 01: They had no jurisdiction. [00:28:42] Speaker 01: And whether he asked for a statement of the case, which was then required because he did file the NOD or just asked them to dismiss it to allow the appeal to proceed, the same result happened. [00:28:53] Speaker 01: And that's what the court's precedent here focuses on is what actually happened. [00:28:58] Speaker 01: What was the result of the court's order and was there further agency action? [00:29:04] Speaker 01: And then last point on the parallel proceedings, whether that is necessary or not is irrelevant here because we do have parallel proceedings. [00:29:11] Speaker 01: And that emphasizes and reinforces the fact that there is additional agency proceedings [00:29:17] Speaker 01: that are a direct result of the court's order to find error in what the board did. [00:29:24] Speaker 01: So we would ask that this court reverse the Veterans Court's finding that he is not a prevailing party. [00:29:31] Speaker 00: Thank you, counsel, and thank you to both counsels. [00:29:33] Speaker 00: The case is submitted.