[00:00:29] Speaker 04:
Last case this morning is Lydia Dover who assists the Secretary of Veterans Affairs 2014-7124.

[00:00:35] Speaker 04:
Mr. Carpenter.

[00:00:37] Speaker 04:
May it please the court?

[00:00:39] Speaker 02:
Kenneth Carpenter appearing on behalf of Lydia Dover.

[00:00:42] Speaker 02:
An issue in this case is the correct legal standard for determining whether or not a party seeking reimbursement for attorney fees and expenses under the Equal Access to Justice Act was correctly used in this case.

[00:00:57] Speaker 02:
We believe that the Veterans Court used the wrong legal standard to determine whether or not Ms.

[00:01:02] Speaker 02:
Dover was a prevailing party.

[00:01:04] Speaker 04:
The Veterans Court... What did she get out of the appeal?

[00:01:11] Speaker 04:
Well, as indicated... She didn't get anything in the merits.

[00:01:13] Speaker 04:
It was remanded to be dismissed, right?

[00:01:16] Speaker 02:
Well, I vigorously disagree.

[00:01:18] Speaker 02:
Not too vigorously.

[00:01:20] Speaker 02:
Not too vigorously.

[00:01:21] Speaker 02:
It is late in the week.

[00:01:23] Speaker 04:
Clarity.

[00:01:24] Speaker 02:
Clearly.

[00:01:29] Speaker 02:
The board in this case reached two requests for revisions and made two distinct legal errors, both of which were conceded, both of which were found to have been made by the Veterans Court.

[00:01:42] Speaker 02:
As a result, the Veterans Court determined that in one of the requests for revisions, there was no jurisdiction because the agency of original jurisdiction had not considered the allegations in the first instance.

[00:01:54] Speaker 02:
In the second, the board took the wrong legal remedy

[00:01:59] Speaker 02:
and address the merits instead of dismissing without prejudice to allow for the pleading.

[00:02:06] Speaker 02:
Both of those were legal determinations on the merits.

[00:02:11] Speaker 02:
And if there had not been an appeal, then the board... Well, let me see if I get this straight.

[00:02:16] Speaker 01:
As I understand it, Ms.

[00:02:16] Speaker 01:
Dover, I think she filed a 2008 Q claim.

[00:02:21] Speaker 01:
but it was wholly lacking in any specificity as to what the clear and unmistakable error was.

[00:02:26] Speaker 01:
Actually, it was Mr. Dover.

[00:02:28] Speaker 01:
Okay, Mr. Dover, I'm sorry.

[00:02:29] Speaker 01:
And Mrs. Dover.

[00:02:30] Speaker 01:
That's right.

[00:02:31] Speaker 01:
She ultimately succeeded him.

[00:02:33] Speaker 01:
So first of all, the Q claim was facially flawed because of that.

[00:02:39] Speaker 01:
That's correct.

[00:02:40] Speaker 01:
And then there was also a filing before the board where there was, I guess, additional argument and maybe some evidence.

[00:02:48] Speaker 01:
And maybe that's what

[00:02:51] Speaker 01:
That was also improperly submitted because it needed to first be considered by the RO before the board could entertain it because it had to review whatever the RO was feeling for it.

[00:03:02] Speaker 01:
That's correct, Your Honor.

[00:03:03] Speaker 01:
The board couldn't address it in the first place.

[00:03:05] Speaker 01:
So the Veterans Court then said, okay, the Q claim as it was, was efficient.

[00:03:13] Speaker 01:
And so could not be entertained, needs to be dismissed.

[00:03:17] Speaker 01:
Could not have lawfully been entertained.

[00:03:19] Speaker 01:
Right.

[00:03:20] Speaker 01:
And then the second part, again, the board made a mistake in entertaining that because it needs to go to the RO first.

[00:03:27] Speaker 01:
And so as I recall reading the Veterans Court's decision, made it clear that the board essentially lacked jurisdiction to handle either of these two things that Mr. Snyder submitted.

[00:03:42] Speaker 02:
Well, actually, the board did not lack jurisdiction to handle the second, the misplied one.

[00:03:47] Speaker 02:
The appropriate disposition under the Veterans Court case law was to dismiss without prejudice.

[00:03:54] Speaker 02:
The board clearly had jurisdiction to enter that order of dismissal and allow the veteran to replete it.

[00:04:02] Speaker 01:
Right.

[00:04:03] Speaker 01:
So if we read the Veterans Court's decision and saying, what the board should have done with all of this was dismiss it all.

[00:04:11] Speaker 01:
without prejudice to permit Mr. Snyder to make a proper Q claim.

[00:04:19] Speaker 01:
Refile his Q claim so that it fulfills all the technical requirements.

[00:04:25] Speaker 01:
Then why wouldn't this case be very, very similar to Halpern where the Veterans Court ordered the board to dismiss the case for lack of jurisdiction?

[00:04:40] Speaker 02:
The Halprin case is both distinguishable and non-applicable in this case.

[00:04:44] Speaker 02:
In Halprin, the Veterans Court was relying upon an earlier decision that determined that the board did not have jurisdiction to address the issue of fee eligibility in the first instance.

[00:04:59] Speaker 02:
On the basis of the Skates case, the court merely vacated and sent the case back to dismiss for lack of jurisdiction.

[00:05:06] Speaker 02:
On appeal, this court found that the Veterans Court used the wrong legal standard again in determining the question of prevailing party, but then went on to say that Mr. Halpern was not in fact a prevailing party because the legal relationship of the parties had not changed.

[00:05:26] Speaker 02:
The legal relationship of the parties in this case had changed if there had not been an appeal of the board's decision

[00:05:34] Speaker 02:
by Mrs. Dover on behalf of her deceased husband, there would have been a final disposition and those allegations of clear and unmistakable error could not be repled again.

[00:05:48] Speaker 02:
They are now able to be repled and as the record indicates, the board on remand sent it back to the agency to address the repled cue claims.

[00:05:59] Speaker 02:
So the notion that there is any comparison between this and Halprin

[00:06:04] Speaker 02:
simply does not exist.

[00:06:06] Speaker 02:
What exists here is a clear addressing of the merits of whether or not the board made the correct decision on these requests for revisions.

[00:06:16] Speaker 02:
That was never reached in Halprin.

[00:06:18] Speaker 01:
The court did not decide whether they had... I thought the Veterans Court was saying we're not going to address the merits of the board's analysis of all of these arguments made by Mrs. Snyder.

[00:06:31] Speaker 01:
But actually it's Dover.

[00:06:33] Speaker 01:
Sorry about that.

[00:06:34] Speaker 01:
That's okay.

[00:06:36] Speaker 01:
Long, long week.

[00:06:37] Speaker 05:
I keep seeing you over and over.

[00:06:42] Speaker 01:
Not that there's anything wrong with that.

[00:06:44] Speaker 02:
But the distinction here is that the Board, or excuse me, the Veterans Court didn't have to reach the merits of the argument

[00:06:59] Speaker 02:
but had to reach the merits of whether or not the board did or did not make the correct legal determination.

[00:07:05] Speaker 02:
And on procedural grounds, the board made clear errors of law regarding both requests for revision.

[00:07:13] Speaker 02:
And as a consequence, vacated the board's decision and sent it back to the board that then took further action.

[00:07:21] Speaker 02:
What the court erroneously concluded was,

[00:07:25] Speaker 02:
is that Mrs. Dover would not obtain further agency proceedings other than dismissal.

[00:07:31] Speaker 02:
That's simply wrong.

[00:07:33] Speaker 02:
And the record demonstrates it.

[00:07:35] Speaker 02:
She did receive something more.

[00:07:37] Speaker 02:
That case has now gone back from the board to the agency.

[00:07:41] Speaker 01:
Are you relying on the fact that the board on remand designated what Mr. Dover

[00:07:51] Speaker 01:
filed before the board in 2011 as being a new cue claim?

[00:07:59] Speaker 02:
What the board did was to recognize that Mrs. Dover could replede the defectively pled request for revision that had been made by her husband before his death.

[00:08:11] Speaker 02:
And that repled cue claim was remanded back to the agency of original jurisdiction to address in the first instance, which they've now done and denied.

[00:08:20] Speaker 02:
That is now back in appeal status.

[00:08:22] Speaker 02:
There are clearly further proceedings.

[00:08:25] Speaker 02:
The legal relationship changed based upon the judicial decision that was made by the Veterans Court in this case.

[00:08:32] Speaker 01:
What if the board had just done what maybe the Veterans Court had originally expected, which is to dismiss everything and then say to Mr. Dover, you need to refile the queue claim?

[00:08:46] Speaker 01:
What if that had been the facts of this case?

[00:08:48] Speaker 01:
Would you say that there was a Mr. Dover was a prevailing party because even though his Q claim had been completely dismissed without prejudice and then he had to refile his claim and then maybe he ultimately did prevail at least in part on that.

[00:09:05] Speaker 01:
he would still be a prevailing party here?

[00:09:07] Speaker 02:
Yes, Your Honor, because the question is whether or not there was or was not a change in the legal relationship.

[00:09:14] Speaker 01:
I guess your point is he needed to win the Veterans Court's vacatur of the board's decision or else he would have been forever barred from ever refiling the key.

[00:09:26] Speaker 01:
That's correct, Your Honor.

[00:09:27] Speaker 02:
And that is the change in the legal relationship that took place here.

[00:09:30] Speaker 02:
based upon both a concession of error by the VA and a finding of error by the veteran.

[00:09:35] Speaker 01:
So as I understood those prevailing party cases, they always talk about remand for further proceedings, i.e.

[00:09:42] Speaker 01:
in the same proceeding.

[00:09:44] Speaker 01:
And in yours, fact pattern, based on the hypothetical I just created, the proceeding would have ended and a new proceeding would have had to be generated by refiling the Q claim.

[00:09:59] Speaker 02:
except that that's what's contemplated by the court's case law in terms of the correct disposition of a case, of a claim that is not adequately or correctly pledged.

[00:10:12] Speaker 01:
Right, but from the VA's perspective, from the Veterans Court's perspective, the proceeding is now finished once the Q claim is dismissed.

[00:10:23] Speaker 01:
And then, you know, if the veteran elects

[00:10:26] Speaker 01:
to subsequently refile.

[00:10:27] Speaker 01:
Well, he's welcome to do that, but as far as this particular proceeding, it's over.

[00:10:35] Speaker 02:
Yes, Your Honor, except that that was the entire reason for the appeal of the Board's decision that denied both requests for revisions in the first place.

[00:10:44] Speaker 02:
To either have the merits addressed

[00:10:48] Speaker 02:
or to recognize the procedural errors that were made and allow for a revision or repleting of that.

[00:10:56] Speaker 02:
And it is not a separate case because we're talking about undoing finality.

[00:11:00] Speaker 01:
There's something a little strange for me about your case because it's all predicated on Mr. Dover making certain mistakes.

[00:11:10] Speaker 01:
Mistake number one, filing a Q claim that was insufficiently pled.

[00:11:14] Speaker 01:
Mistake number two,

[00:11:16] Speaker 01:
presenting argument and evidence at the board level without having first submitted that evidence to the RO.

[00:11:24] Speaker 01:
And everything else that happened after that is because of Mr. Dover's own mistakes, and if everything had been done correctly in the first instance, all of that would have been dismissed in the first instance.

[00:11:35] Speaker 02:
Well, Your Honor, I have two responses to that.

[00:11:37] Speaker 02:
First, this is supposed to be a veteran-friendly, non-adversarial system.

[00:11:42] Speaker 02:
And those, quote, mistakes are because this is a very technical way of undoing the finality.

[00:11:49] Speaker 02:
And that's the case here.

[00:11:51] Speaker 02:
There are not separate proceedings.

[00:11:52] Speaker 02:
There is one goal and one goal only to undo the finality of a previously final VA decision.

[00:12:00] Speaker 02:
It was not the errors of Mr. Dover that caused the legal error in this case.

[00:12:07] Speaker 02:
It was the error of the board in addressing it in the request for the first

[00:12:12] Speaker 02:
request for revision in the first instance, and then addressing the merits without following the correct legal procedure to dismiss without prejudice.

[00:12:21] Speaker 02:
See that I'm into my rebuttal time.

[00:12:23] Speaker 04:
We will save it for you.

[00:12:24] Speaker 02:
Thank you.

[00:12:26] Speaker 04:
Ms.

[00:12:26] Speaker 04:
Cole.

[00:12:39] Speaker 00:
May I please the court?

[00:12:40] Speaker 00:
This court should affirm the decision of the Veterans Court denying Mrs. Dover attorney's fees because she did not obtain at least some relief on the merits that materially altered the legal relationship of the parties.

[00:12:50] Speaker 01:
Well, can you respond to Mr. Carpenter's point that if Mr. Dover had not appealed the adverse board decision to the Veterans Court and succeeded in getting the Veterans Court to vacate that board decision,

[00:13:06] Speaker 01:
then Mr. Dover would be out of luck and would be unable to file any subsequent Q claim.

[00:13:12] Speaker 01:
Is that true?

[00:13:13] Speaker 00:
That's not true.

[00:13:15] Speaker 00:
So you can bring a Q claim at the RO level.

[00:13:18] Speaker 00:
You can bring many Q claims.

[00:13:20] Speaker 00:
You can only plead each Q claim once.

[00:13:23] Speaker 00:
Once you've pledged it, then you're done.

[00:13:25] Speaker 00:
You can't bring that claim again.

[00:13:26] Speaker 00:
But you can plead Q on different bases.

[00:13:29] Speaker 00:
So simply because he was precluded from

[00:13:32] Speaker 01:
we had on one big doesn't mean that he can't proceed but i think more importantly and you develop that a little bit more for me you can you can pleaded claim on a different basis what what does that mean what would that mean here uh... let's assume for the moment that in uh... mister dover never appeal the board decision uh... would mister dover

[00:13:59] Speaker 01:
in that fact pattern be able to just refile a Q claim including all of the arguments that he presented to the board in his 2011 submission?

[00:14:10] Speaker 01:
Where would he be barred from that?

[00:14:11] Speaker 00:
I think the hypothetical is a little difficult in this situation because Mr. Dover didn't present any basis for his Q claim.

[00:14:18] Speaker 01:
In 2008, but then he did in 2011.

[00:14:20] Speaker 01:
Correct.

[00:14:21] Speaker 01:
So what happened?

[00:14:22] Speaker 00:
So hypothetically, if he had filed his 2011 claim in 2008, those were the bases, and he lost on those bases, he could still present different bases for Q in those decisions, simply not on those same grounds.

[00:14:35] Speaker 01:
So he could argue that some... Okay, but what would have happened here?

[00:14:38] Speaker 01:
He gets the adverse board decision.

[00:14:40] Speaker 01:
He decides he wants to file a new Q claim.

[00:14:43] Speaker 01:
He wants it to encompass all the arguments he made in 2011.

[00:14:48] Speaker 01:
Would he be able to do it?

[00:14:49] Speaker 00:
No, he would not be able to do it, but I don't think that should determine, that warrants attorney fees in this instance because the appropriate analysis for determining if attorney fees are warranted is not whether someone is in a slightly different position than they would have been otherwise.

[00:15:07] Speaker 00:
It's a black and white analysis of whether you prevail.

[00:15:11] Speaker 00:
And the Supreme Court precedent makes clear that to prevail, you need the equivalent of an enforceable judgment on the merits or a court-ordered consent decree

[00:15:18] Speaker 00:
that materially alters the legal relationship of the parties.

[00:15:21] Speaker 03:
I have a couple of questions in that regard.

[00:15:24] Speaker 03:
The Veterans Court in sending the case back said that it didn't say we're remanding for you to dismiss.

[00:15:34] Speaker 03:
Correct?

[00:15:35] Speaker 03:
It said we're remanding for further proceedings?

[00:15:39] Speaker 00:
That's correct.

[00:15:39] Speaker 03:
They said further proceedings consistent with the... So if that's the case, and taking that, because I think that's important to my next question,

[00:15:46] Speaker 03:
How does the case Motorola fit into this?

[00:15:49] Speaker 00:
I think Motorola fits in because the board specifically said, although the remand order itself said it was remanding for proceedings consistent with the decision, in the body of the decision, the Veterans Court said the board should have dismissed the request as do all claims without prejudice to refiling.

[00:16:05] Speaker 00:
Now, under Motorola, you need to have further proceedings on remand in order for a remand predicated on agency error to warrant attorney's fees.

[00:16:15] Speaker 03:
Well, if the Veterans Court says we're remanding for further proceedings, why aren't there further proceedings that have been, are required?

[00:16:25] Speaker 00:
Further proceedings are not required because under the Halperin case, the court made clear that a remand simply for directions to dismiss without prejudice.

[00:16:34] Speaker 03:
But where's the direction to dismiss with prejudice here?

[00:16:37] Speaker 03:
The board made, I'm sorry, the Veterans Court, in the body of its decision, I think it made it clear that... Well, it may be in the body, it makes some statements, but it issued in the remand order itself, right?

[00:16:49] Speaker 03:
It says for further proceedings.

[00:16:51] Speaker 00:
It says further proceedings consistent with the decision, but in the decision, it specifically said that the board should have request all claims without prejudice to refiling.

[00:16:59] Speaker 00:
So that remand order needs to be considered in conjunction with the body of the decision.

[00:17:06] Speaker 00:
the body of the decision makes clear that that was the intent of the Veterans Court in sending it back.

[00:17:11] Speaker 00:
They weren't intending for any of the claims to be decided.

[00:17:14] Speaker 00:
They were simply intending that the board dismiss the case without prejudice.

[00:17:19] Speaker 00:
Under the Motorola standard and under cases such as Halpern, the precedent is clear that when a case is simply remanded with directions of dismiss, that doesn't materially alter the legal relationship of the parties because

[00:17:32] Speaker 00:
there will be no further proceedings on the merits.

[00:17:34] Speaker 03:
Didn't the board, excuse me, the Veterans Court's decision also state that the remand is to submit additional evidence and argument in support of a claim?

[00:17:46] Speaker 00:
I would have to look back at it, but I think, again, I think the key is you can't just consider the remand, those few sentences in the remand error alone.

[00:17:58] Speaker 03:
Maybe what the court meant is

[00:18:01] Speaker 03:
One of the things you can consider is dismissal, but the other thing to consider is take new evidence that she has in support of her claim and to proceed further.

[00:18:12] Speaker 03:
I don't think that could... You don't deny that the court didn't permit her to present new evidence.

[00:18:21] Speaker 00:
Well, the case law makes clear, I think it's... No, I'm talking about the Veterans Court decision.

[00:18:26] Speaker 03:
The Veterans Court

[00:18:27] Speaker 03:
This decision says that Mrs. Dover can now submit new evidence in support of her claim.

[00:18:35] Speaker 00:
I would need to go back and look at that decision, but I think you have to view the Veterans Court decision.

[00:18:39] Speaker 03:
Well, let's say I'm correct on that.

[00:18:41] Speaker 03:
Then would you say that there are further proceedings and Mrs. Dover has now the opportunity to submit evidence in support of her claim and it's not necessary just to dismiss?

[00:18:52] Speaker 00:
I don't think the case law supports that because the case law is clear that

[00:18:55] Speaker 03:
Well, let's assume that it does say that.

[00:18:58] Speaker 03:
Would you say that Halpern still applies here?

[00:19:00] Speaker 00:
I think Halpern does apply because, again, you need to look at the purpose.

[00:19:04] Speaker 03:
But Halpern says you remand with in order to dismiss.

[00:19:09] Speaker 03:
Okay, here we don't have that.

[00:19:10] Speaker 03:
We don't have the word dismiss.

[00:19:12] Speaker 03:
It says for further proceedings, in addition, the court is permitting Mrs. Dover to submit new evidence.

[00:19:18] Speaker 03:
How does Halpern apply?

[00:19:20] Speaker 00:
Halpern applies because when there's an inadequately pledged to claim,

[00:19:24] Speaker 00:
the only option in that case is to dismiss it without prejudice.

[00:19:29] Speaker 00:
So that has to have been the intent.

[00:19:31] Speaker 00:
And the Veterans Court has made clear in cases such as Kennedy that when a request for revision is not fled with the requisite specificity, you can't simply amend that complaint and continue on in the same proceeding.

[00:19:43] Speaker 00:
Adjudication will only begin upon the filing of a new request, because the case law is clear that a request that is not fled with the requisite specificity is

[00:19:52] Speaker 03:
If we were to find that the court intended, you mentioned the intent, that the Veterans Court intended to permit Ms.

[00:20:01] Speaker 03:
Stover to submit additional evidence and argument in support of her claim, would you say that that changes the relationship of the parties?

[00:20:09] Speaker 00:
I think if the Veterans Court had remanded to the board, I think it depends.

[00:20:16] Speaker 00:
I think the Edie case is illustrative.

[00:20:20] Speaker 03:
Let's take this case.

[00:20:21] Speaker 03:
Let's assume that I'm correct, that the decision says that Ms.

[00:20:25] Speaker 03:
Stowe will be able to submit additional evidence in argument in support of her claim.

[00:20:30] Speaker 03:
Does that instruction or remand change the relationship of the parties?

[00:20:36] Speaker 00:
I think Motorola suggests that when a court remand... I guess I'm asking for a yes or no answer.

[00:20:42] Speaker 03:
Does it change the relationship of the parties?

[00:20:44] Speaker 00:
If the court intends for further proceedings on the merits of the case, that would change the relationship of the parties.

[00:20:50] Speaker 03:
Well, why else would they say argument in support of a claim if the court's now referring to merits?

[00:20:57] Speaker 00:
I think the court can't have referred to the merits because the case law is clear that when you have an inadequately pledged Q claim, the only thing you can do with that is dismiss it without prejudice.

[00:21:07] Speaker 00:
And again, if you look at the body of the decision, the Veterans Court made clear that

[00:21:12] Speaker 00:
they found that the board should have dismissed all claims without prejudice to refining.

[00:21:17] Speaker 01:
There's a little ambiguity in the opinion.

[00:21:19] Speaker 01:
I mean, I see what Judge Rain is looking at at JA-68, where the final sentence is, after ordering a remand, in pursuing her claim on remand, the appellant will be free to submit additional evidence and argument in support of her claim, and the board is required to consider any such evidence and argument.

[00:21:41] Speaker 01:
But then at JA65, the Veterans Court goes through the law and says, among other things, this court has held that the proper remedy for the board when confronted with an inadequately pled Q claim is to dismiss it without prejudice to refile it.

[00:22:00] Speaker 01:
And then signing the regulation stating that the board must dismiss without prejudice when the board determines that a Q claim lacks the requisite pleading specificity.

[00:22:11] Speaker 01:
and so it goes on, says instead the board should have dismissed the request as to all claims without prejudice to refiling, and then finally wraps up by saying to the extent that the board construed the submission, the January 2011 submission as a request for revision, that adjudication was also an error, and then quoting an opinion stating requests for revision of an RO decision based on Q must first be submitted to and adjudicated by the RO before the board can attain jurisdiction

[00:22:41] Speaker 01:
over the request.

[00:22:43] Speaker 01:
So all of that, what you call the body of the opinion, strongly suggests that the board had no power to address any of this.

[00:22:55] Speaker 01:
And then we have the final sentence in the opinion saying, hey, on remand, Mr. Dover is free to submit additional evidence.

[00:23:06] Speaker 01:
So what do you think is going on here?

[00:23:09] Speaker 00:
Well, I think you can analogize this to the Davis case.

[00:23:13] Speaker 00:
In the Davis case, this court made clear that you look beyond the four corners of the remand order in considering the intent of the Veterans Court.

[00:23:22] Speaker 00:
And I think here, I agree that the remand order is oddly phrased, given the body of the decision.

[00:23:32] Speaker 00:
But looking at the body of the decision and looking at the case law and... If there's some sort of confusion

[00:23:39] Speaker 03:
in the decision of the court.

[00:23:41] Speaker 03:
Why should we construe that against Mrs. Davis, Mrs. Dover?

[00:23:46] Speaker 00:
Well, I think aside from the fact, I'd like to make a counter to Mr. Carpenter's point that she can go forward.

[00:23:55] Speaker 00:
Mrs. Dover is a survivor.

[00:23:58] Speaker 00:
And even assuming that the ability to move forward again, that that's what the court intended, she can't even proceed with her case.

[00:24:08] Speaker 00:
Survivors cannot initiate freestanding cue claims.

[00:24:10] Speaker 00:
And once a claim has been dismissed for failures pleaded with the record without specificity, you need to file a new cue claim in order to continue.

[00:24:21] Speaker 00:
And survivors cannot do that with respect to accrued benefits.

[00:24:25] Speaker 04:
I'm sorry.

[00:24:26] Speaker 04:
So you're saying even if we disagree with you and find that she was a prevailing party, ultimately she's going to get nothing because she'd only get survivor benefits.

[00:24:37] Speaker 00:
I think she can't be considered a prevailing party for many reasons.

[00:24:41] Speaker 00:
I think the first reason is because I think if you look at the body of the Veterans Court decision and in light of the case law, it's clear that all the Veterans Court intended was to remand with directions to dismiss because that's what's supposed to occur.

[00:24:55] Speaker 03:
Well, you're asking us to infer an intent of the court, but the words speak for themselves.

[00:25:01] Speaker 01:
Well, what about the Veterans Court's actual decision on Egypt fees?

[00:25:07] Speaker 01:
at j a two where the veterans court said well denied the each of these by saying quote on remand mrs dover will not obtain further agency proceedings other than a dismissal and she did not obtain relief on the merits of her claims end quote so maybe that sentence helps clarify the apparent ambiguity in the underlying decisions vacating the board

[00:25:36] Speaker 00:
I would agree with that.

[00:25:37] Speaker 00:
I think any ambiguity in the initial decision is clarified by that sentence that makes clear that the Veterans Court did not intend for her to have any further proceedings.

[00:25:48] Speaker 00:
It stated that she would not go and get any further proceedings aside from a dismissal.

[00:25:52] Speaker 00:
Based on that, using the Halpern standards, the court found correctly that attorney's fees are not appropriate because

[00:25:59] Speaker 00:
When you're simply obtaining a dismissal, there are not going to be any further proceedings on the merits.

[00:26:04] Speaker 00:
And under Motorola, the remand needs to require further proceedings on the merits in order to be a prevailing party.

[00:26:12] Speaker 00:
Now, if this court doesn't have any further questions, I respectfully request that the court affirm the decision of the Veterans Court denying Mrs. Dover attorney's fees.

[00:26:21] Speaker 04:
Thank you, Ms.

[00:26:22] Speaker 04:
Cole.

[00:26:22] Speaker 00:
Thank you.

[00:26:23] Speaker 04:
Mr. Coppender has 315.

[00:26:34] Speaker 02:
I would direct the court's attention to the Joint Appendix at pages 121 to 143.

[00:26:40] Speaker 02:
This is evidence of the further proceedings below.

[00:26:44] Speaker 02:
Notwithstanding what the court may have intended or this court might infer of its intent, there were further proceedings.

[00:26:53] Speaker 02:
If there were further proceedings under Motorola, Mrs. Dover was a prevailing party.

[00:27:00] Speaker 02:
To the government's point about Mrs. Dover

[00:27:03] Speaker 02:
ability to replede.

[00:27:05] Speaker 02:
The government misstates the law to this panel.

[00:27:09] Speaker 02:
The rule on repleting applies if there hasn't been a final board decision or judicial review of that board decision.

[00:27:18] Speaker 02:
I direct the Court's attention to Part 20 of VA regulations in Chapter 38.

[00:27:22] Speaker 02:
I can't give you the exact citation.

[00:27:24] Speaker 02:
I don't remember it off the top of my head, but it does specifically say that when a board reviews a

[00:27:31] Speaker 02:
requests for revision and makes a final decision.

[00:27:35] Speaker 02:
Unless that decision is appealed to the Veterans Court, that decision becomes final and no further pleadings can be made.

[00:27:43] Speaker 02:
What happened in this case was the board made a final decision as to two requests for revisions.

[00:27:49] Speaker 02:
Those were final until the action taken by the Veterans Court to vacate those because they were illegally, unlawfully entered

[00:28:00] Speaker 02:
They were procedurally incorrect.

[00:28:03] Speaker 02:
The next point is that Mrs. Dover is a substituted appellant.

[00:28:12] Speaker 02:
Again, the government misstates the law.

[00:28:15] Speaker 02:
Mrs. Dover has stepped into the shoes not as a survivor, but as a substituted appellant.

[00:28:23] Speaker 02:
Congress in 2009, I believe, amended the statute

[00:28:29] Speaker 02:
to allow for substitution.

[00:28:32] Speaker 02:
Substitution is different from filing a accrued benefit claim in the first instance.

[00:28:38] Speaker 01:
Can you remind me again where is Mrs. Dover with respect to getting these veterans benefits?

[00:28:45] Speaker 02:
The request for revision that was remanded for consideration in the first instance by the VA has been decided that it has been decided adversely.

[00:28:55] Speaker 02:
Both requests were denied.

[00:28:57] Speaker 02:
And she is within her one-year appeal period at this time to continue an appeal of the DA's now correct addressing of those repleds.

[00:29:09] Speaker 01:
Is the government disputing whether she has, I don't know what the right word is, standing?

[00:29:16] Speaker 02:
Standing.

[00:29:16] Speaker 02:
Well, they certainly had the opportunity to do that, Your Honor, and they didn't.

[00:29:21] Speaker 02:
They issued a decision.

[00:29:23] Speaker 02:
And that's my whole point, that the government, notwithstanding what they've said to this panel,

[00:29:27] Speaker 02:
has acted in recognition and they have to because she is a substituted appellant.

[00:29:34] Speaker 02:
She has a different standing because she is not just a survivor under 5121, but she is a survivor under 5121A as a substitute appellant.

[00:29:46] Speaker 02:
And she has every right that Mr. Dover had while he was alive to finish his appeal.

[00:29:53] Speaker 02:
That's why this is not separate proceedings.

[00:29:56] Speaker 02:
There is no separate proceeding here.

[00:29:58] Speaker 02:
This is a continuation of the proceeding commenced by Mr. Dover when he was alive.

[00:30:03] Speaker 02:
Unless there's further questions from the panel, I thank you very much for your time.

[00:30:06] Speaker 04:
Thank you, Mr. Coppenter.

[00:30:07] Speaker 04:
We'll take the case out of the court.

[00:30:11] Speaker 05:
All rise.

[00:30:13] Speaker 05:
The honorable court is adjourned from day to day.