[00:00:02] Speaker 04:
Snead versus McDonnell.

[00:00:09] Speaker 04:
Mr. Herbert.

[00:00:17] Speaker 04:
Just hold on a minute, make sure everybody's ready.

[00:00:23] Speaker 00:
May it please the court.

[00:00:24] Speaker 00:
You are here before this court for a second time, again to have errors made by the

[00:00:30] Speaker 00:
court of veterans claims or the veterans court legal errors overturned.

[00:00:36] Speaker 02:
So it seems to me that looking at your case from the best case perspective, what happened when Eagle was asked to look at this is that she said I'll look at this, I'll give you an evaluation of your case and then I'll decide whether to represent you.

[00:00:55] Speaker 02:
and that the argument would be that having agreed to evaluate the case, that created an attorney-client relationship under California law.

[00:01:04] Speaker 02:
Let's assume that, hypothetically, that that's correct.

[00:01:08] Speaker 02:
Why don't you have a problem that Ms.

[00:01:11] Speaker 02:
Sneed didn't exercise due diligence during the period

[00:01:17] Speaker 02:
that Hegel had the case.

[00:01:19] Speaker 02:
In other words, this wasn't a situation in which Hegel had said, I'll file the thing, I'll take care of it.

[00:01:25] Speaker 02:
And if she didn't, that would be abandonment, which would count as equitable tolling.

[00:01:30] Speaker 02:
This was a situation in which she said, I might or might not take your case, depending on my evaluation.

[00:01:36] Speaker 02:
And so as the time ran and came close to the deadline, why didn't Ms.

[00:01:42] Speaker 02:
Sneed have an obligation

[00:01:44] Speaker 02:
to say what's going on.

[00:01:46] Speaker 02:
Why didn't due diligence require that she sort of check into it?

[00:01:51] Speaker 00:
I think the answer to your question Judge Dyck is twofold.

[00:01:55] Speaker 00:
First, the Veterans Court for the purpose of deciding that withholding issue accepted as true

[00:02:02] Speaker 00:
the facts that are contained on A6.

[00:02:05] Speaker 00:
And in those facts, they accepted as true that Ms.

[00:02:09] Speaker 00:
Sneed had an initial sending of files eight days after she obtained the board's decision.

[00:02:16] Speaker 00:
And then subsequent to that, there was further communications with Ms.

[00:02:20] Speaker 00:
Eagle's office, and there was a request for information and to send back.

[00:02:25] Speaker 00:
So that's the first point, is that it wasn't just

[00:02:28] Speaker 00:
she had additional activities going back and forth during that time period.

[00:02:32] Speaker 02:
Yeah, but I don't think that's responsive to my question because it doesn't show diligence.

[00:02:36] Speaker 02:
She didn't say to Eagle, are you going to file this?

[00:02:39] Speaker 02:
Are you taking care of it?

[00:02:40] Speaker 02:
Have you decided to represent me?

[00:02:42] Speaker 02:
She didn't do those things.

[00:02:43] Speaker 00:
Understood.

[00:02:43] Speaker 00:
And I think that the second part that I was going to get to is she was in a way foreclosed, the facts that we have in a way foreclosed us from knowing whether or not she was going to be diligent because

[00:02:57] Speaker 00:
I think if you believe an attorney is representing you because you've had it back and forth with them several times, sent them additional files in response to you, it's not unreasonable to wait until the day before the deadline to call the attorney and say, hey, I just want to check in with you.

[00:03:12] Speaker 00:
Are you going to be filing the thing on time for me?

[00:03:14] Speaker 00:
The problem here is that she received Ms.

[00:03:17] Speaker 00:
Eagle's letter on the day before the deadline.

[00:03:19] Speaker 02:
Why is it reasonable to wait until the last minute when Eagle never told her that she would represent her?

[00:03:26] Speaker 00:
Your Honor is correct that Eagle never told us she would represent her, but there was an undisputed fact that there was an initial sending of the materials and then subsequent request for more materials and more communications.

[00:03:38] Speaker 00:
And then the fact that she held onto the file for 110 days over three months, I think that in light of those initial communications and the fact that we know from based on the letter that there was an analysis going on, she was reviewing the file, she was conducting the analysis, I think in light of that,

[00:03:54] Speaker 00:
It was reasonable for her to wait until the day before to potentially try and call.

[00:03:59] Speaker 00:
As I said, the issue is here that the letter prevented us from knowing whether she was going to do that or not.

[00:04:05] Speaker 04:
Are you from the Supreme Court issued a recent opinion just a couple of weeks ago, the Mammoni Tribe case?

[00:04:12] Speaker 04:
Yes.

[00:04:12] Speaker 04:
OK.

[00:04:12] Speaker 04:
Well, it seems to me one of the takeaways from that case is certainly that the court distinguished between what was in control of the claimant

[00:04:23] Speaker 04:
versus outside of the control of the claimant.

[00:04:25] Speaker 04:
And it strikes me that under the circumstances that Judge Dyke outlined, she still had a considerable amount of control.

[00:04:33] Speaker 04:
I mean, she hadn't gotten confirmation that the case would be, that the appeal would be filed or that Ms.

[00:04:39] Speaker 04:
Eagle would accept her as a client.

[00:04:42] Speaker 04:
And again, why didn't, I think Judge Dyke was saying, if she, if it's important distinction,

[00:04:48] Speaker 04:
It has to be really outside of her control.

[00:04:51] Speaker 04:
How is this outside of her control?

[00:04:57] Speaker 00:
The question really here is, was there an attorney-client relationship?

[00:05:01] Speaker 00:
And under California law, an attorney-client relationship will exist

[00:05:06] Speaker 00:
a party seeks legal advice in a professional realm from an attorney and that attorney provides advice.

[00:05:13] Speaker 02:
Yeah, but I'm assuming that.

[00:05:15] Speaker 02:
I'm assuming that there was an attorney-client relationship insofar as she said she'd evaluate her case.

[00:05:21] Speaker 02:
But still, it seems to me that there's the question of diligence of whether she was within her control and whether she should have checked up to see if Eagle actually was going to represent her.

[00:05:36] Speaker 00:
The case that Chief Judge Kroos mentions, the Mentality Tribe case, makes clear that the exceptional circumstances and the diligence elements are two separate prongs.

[00:05:47] Speaker 00:
What we have here is that the Veterans Court said that there wasn't exceptional circumstances because of the lack of an attorney-client relationship.

[00:05:57] Speaker 03:
So you want to send it back down to them to look and see if there's a diligence?

[00:06:00] Speaker 00:
Yeah.

[00:06:02] Speaker 00:
Judge Wallach is exactly right.

[00:06:03] Speaker 00:
The issue here is that the period that they analyzed, the Veterans Court analyzed diligence under, was the improper period of time under this court's Checo decision.

[00:06:13] Speaker 00:
That case makes very clear that the period of time that you have to analyze diligence under is the period during which there is exceptional circumstances.

[00:06:20] Speaker 00:
And that case also makes clear that that exceptional circumstances period exists during the time period for the deadline.

[00:06:26] Speaker 00:
So that's 120 days.

[00:06:28] Speaker 04:
If you look at the veteran courts... So your position isn't that the clock starts to run anew on August 2nd or whenever it was that you... No.

[00:06:36] Speaker 00:
Our position is that that letter clearly establishes that there was an attorney-client relationship.

[00:06:42] Speaker 00:
And the contents of that letter also show that it existed prior to that.

[00:06:45] Speaker 00:
That letter does not establish that the attorney-client relationship began at that time.

[00:06:49] Speaker 00:
It actually evidences work that she was doing prior.

[00:06:51] Speaker 00:
So the attorney-client relationship existed prior to that letter.

[00:06:54] Speaker 00:
And our position is that

[00:06:57] Speaker 00:
for a period prior to receiving that letter, the period should be told.

[00:07:04] Speaker 00:
Our opinion is we think that in these circumstances, for at least 30 days, a reasonable attorney in that period would have told a client that I'm not going to be representing you, here's your materials back, you need to file the deadline.

[00:07:16] Speaker 00:
So our position is that for that period of time,

[00:07:20] Speaker 00:
roughly 30 days prior to the deadline, the diligence analysis needs to be conducted during that period of time.

[00:07:25] Speaker 00:
The only diligence analysis the Veterans Court actually conducted was between when she missed the deadline to when she finally filed it on September 1, 2011.

[00:07:35] Speaker 00:
And that, if you look at that analysis by the Veterans Court is on 89.

[00:07:42] Speaker 03:
Are you familiar with Perkins?

[00:07:46] Speaker 00:
Yes, I am.

[00:07:46] Speaker 00:
That's the California

[00:07:48] Speaker 00:
case from 1900 that established this rule about if you approach an attorney and they give you advice to prima facie attorney-client relationship.

[00:07:57] Speaker 03:
There's a line of progeny, recent line of progeny in the district courts, which seems to support your position, which the government hasn't addressed.

[00:08:09] Speaker 03:
If we take, as Judge Dyke in his hypothetical did, we take as a given

[00:08:16] Speaker 03:
that the attorney-client relationship did exist under California law, then must we remand it to the federal court?

[00:08:33] Speaker 00:
On the diligence question.

[00:08:35] Speaker 02:
You're supposed to say yes.

[00:08:37] Speaker 00:
Yes.

[00:08:38] Speaker 00:
Yes.

[00:08:38] Speaker 00:
I think that that is correct.

[00:08:41] Speaker 00:
And I don't think it would be correct in all cases.

[00:08:43] Speaker 00:
I think because here, because the diligence was analyzed during the wrong period of time, that it would need to be remanded.

[00:08:51] Speaker 00:
I just didn't want to say in all cases that it would have to be remanded.

[00:08:54] Speaker 00:
I understand.

[00:08:55] Speaker 03:
Although I'm not at all convinced that it'll change the result of the analysis.

[00:09:02] Speaker 03:
But I don't see the analysis.

[00:09:05] Speaker 00:
Well, I think that if it gets remanded, the attorney that represents below will most likely have another opportunity to present evidence about what was going on during once the period has been defined.

[00:09:17] Speaker 00:
And they can come forward with additional evidence about what was going on and maybe try and establish a little more concrete details on what on when these additional points of communication occurred.

[00:09:28] Speaker 00:
That's fair.

[00:09:28] Speaker 04:
Now, her discussions that took place after she received the letter from Miss Eagle, I guess there's some chart.

[00:09:34] Speaker 04:
She says she contacted 14 attorneys, but there are a smaller number of what she spoke to or what she did.

[00:09:41] Speaker 04:
Is it your view that there was an attorney-client relationship established in each of those circumstances?

[00:09:48] Speaker 00:
To answer your question, Chief Detroits, I don't know enough about those communications and what was said.

[00:09:52] Speaker 00:
If you approach an attorney and just say, I want you to represent me.

[00:09:56] Speaker 00:
Here's my stuff.

[00:09:57] Speaker 00:
And the attorney comes back at that moment or a week later and says to you, I'm not representing you.

[00:10:03] Speaker 00:
That's an attorney-client relationship, wouldn't it be established under the Perkins case?

[00:10:06] Speaker 04:
So your basis for attorney-client relationship is purely the timing on which she sat on it, not the fact that she gave her advice at the end, because some of these attorneys apparently gave her the same sort of advice.

[00:10:17] Speaker 04:
Like, I can't take your case because I think it doesn't have merit, et cetera, right?

[00:10:21] Speaker 00:
It's my position, Chief of Prose, that if you give advice under California law, there is an attorney-client relationship that exists.

[00:10:31] Speaker 04:
So if she saw these lawyers, even if they looked at her file for one day and they called her up and they said, I'm not taking your case because here's my take on your case.

[00:10:40] Speaker 04:
I mean, Ms.

[00:10:40] Speaker 04:
Siegel just had a paragraph, so they say essentially what she said.

[00:10:44] Speaker 04:
There's no merit, da da da.

[00:10:45] Speaker 04:
So your view would be,

[00:10:47] Speaker 04:
that there's an attorney-client relationship established in those circumstances as well?

[00:10:53] Speaker 04:
And if so, is there abandonment because they declined to take her case?

[00:10:57] Speaker 00:
No, Your Honor.

[00:10:58] Speaker 00:
And that's because it's after the period where you can have exceptional circumstances.

[00:11:03] Speaker 00:
So the exceptional circumstances period exists in the 120-day deadline.

[00:11:07] Speaker 00:
So these contacts after the fact

[00:11:10] Speaker 00:
wouldn't be the basis for attorney abandonment for that reason.

[00:11:12] Speaker 04:
But there would be an attorney-client relationship.

[00:11:15] Speaker 00:
Under California law, if they offered advice, there would be, under California law.

[00:11:20] Speaker 00:
I would just like to point out that that's not the facts that we have here, because we have the additional situation of, I'm saying the materials, there's a back and forth request for additional materials, plus the sitting on it for three months.

[00:11:31] Speaker 03:
That makes this very different from- Plus the last second notice.

[00:11:35] Speaker 00:
Plus the last second notice.

[00:11:36] Speaker 00:
And those facts make this very different from the worry that I think is behind Your Honor's question, which is we don't want to have veterans have a harder time getting attorneys because people will be afraid to even talk to them.

[00:11:49] Speaker 00:
Because if I send you my materials, I'm automatically your attorney.

[00:11:52] Speaker 00:
That's not what happened here in the California.

[00:11:54] Speaker 00:
And the only way you would fall into that is under California law, is if you also provided legal advice.

[00:12:00] Speaker 02:
See, I don't agree with you.

[00:12:01] Speaker 02:
I don't think that's what California says.

[00:12:03] Speaker 02:
I don't think that providing the advice

[00:12:05] Speaker 02:
when you decline to represent somebody and saying you don't have a meritorious case creates an attorney-client relationship, I think you have to find that at the outset that there was an agreement to evaluate the case.

[00:12:20] Speaker 02:
And I think that the record here may support the idea that in the beginning there was an agreement to evaluate the case.

[00:12:28] Speaker 02:
If you look at the Board's opinion at A9, the Board does find

[00:12:34] Speaker 02:
that the account does not state that she took any action during the 120-day period to confirm that an attorney was required to file an appeal or that an appeal had been filed with the court.

[00:12:46] Speaker 02:
So they are taxing her for failing to check to see whether an appeal had been filed.

[00:12:52] Speaker 00:
Your Honor, that is correct.

[00:12:55] Speaker 00:
In this section, they do talk about some facts about what occurred during the 120 days.

[00:13:00] Speaker 00:
But there's no finding that that shows a lack of diligence.

[00:13:04] Speaker 00:
The lack of diligence is in the preceding two sentences right below where Your Honor read from.

[00:13:09] Speaker 00:
And all of that is focused on the post-missed deadline activity.

[00:13:14] Speaker 00:
And under this court's checkbook decision, that is the incorrect period of time to be analyzing diligence

[00:13:25] Speaker 00:
I will say the rest of my time for a bottle of no further questions.

[00:13:46] Speaker 01:
Good morning.

[00:13:47] Speaker 01:
Yes, good morning, Your Honors.

[00:13:49] Speaker 01:
May it please the Court.

[00:13:51] Speaker 01:
The Veterans Court applied the correct standard of equitable tolling here and also applied the correct California law.

[00:13:59] Speaker 03:
You don't even mention Perkins and its progeny.

[00:14:02] Speaker 03:
Why not?

[00:14:03] Speaker 03:
I mean, that's raised in the blue brief.

[00:14:06] Speaker 01:
The state of California law looks to whether there is either an express or an implied contract.

[00:14:14] Speaker 01:
It looks at the totality of the circumstances.

[00:14:16] Speaker 01:
Now, Perkins certainly applies if that is one of the factors if there's

[00:14:21] Speaker 01:
a request for advice and that advice is received, that is part of where one might look to find an implied contract that would create an attorney-client relationship.

[00:14:33] Speaker 03:
I think Judge Dyke summarized the current state of California law.

[00:14:40] Speaker 03:
Let me read from Martin V. D. Wave from 2009.

[00:14:45] Speaker 03:
Are you familiar with that case?

[00:14:46] Speaker 01:
I don't have it with me, Your Honor.

[00:14:49] Speaker 03:
What is disposed of is whether the attorney provided the client, I'm putting in some names, with legal advice.

[00:15:01] Speaker 03:
And it says the fact that the attorney never prepared a retainer agreement, never billed the client does not preclude the possibility that the person was a former client of the attorney.

[00:15:13] Speaker 03:
And what they're looking to is the

[00:15:18] Speaker 03:
the reasonable belief that there's a formation of that relationship.

[00:15:25] Speaker 01:
I don't dispute that that's the correct statement of California law, but the Veterans Court applied that law and looked to whether there was evidence, not just to whether there was a retainer agreement, not just to whether there was an express contract

[00:15:40] Speaker 01:
but looked at the totality of the circumstances and said, at most, made a factual finding here, at most the evidence shows that Ms.

[00:15:47] Speaker 01:
Eagle agreed to have the appellant send her case materials and consider whether to represent her.

[00:15:53] Speaker 03:
That does not... And galled her or lulled her.

[00:15:57] Speaker 03:
into a circumstance under which she reasonably believed, given that she was communicating back and forth, that she had that relationship.

[00:16:10] Speaker 03:
The California courts are very solicitous of the circumstance of clients in those situations.

[00:16:19] Speaker 01:
And if there were evidence on the record that the Veterans Court found factual findings that there was, in fact, a back and forth, counsel referred to a request for more materials.

[00:16:29] Speaker 01:
I'm not aware of any evidence on the record that Ms.

[00:16:32] Speaker 01:
Eagle ever requested materials.

[00:16:34] Speaker 01:
Again, the factual finding by the Veterans Court is that at most Ms.

[00:16:38] Speaker 01:
Eagle agreed to receive this.

[00:16:40] Speaker 01:
There's no evidence.

[00:16:40] Speaker 04:
The problem is, if we just back up a little in terms of reality.

[00:16:44] Speaker 04:
So if we assume there's arguably an attorney-client relationship here,

[00:16:48] Speaker 04:
Does the question really come down to, and this is all pre-August 2, who had the burden under the circumstances to ascertain what was going on?

[00:16:58] Speaker 04:
Was it, did she need to follow up because there was some uncertainty in terms of where this case was going and what the status was?

[00:17:05] Speaker 04:
Did she need to follow up before the deadline?

[00:17:09] Speaker 04:
Or did Miss Eagle, was it incumbent upon Miss Eagle to advise or at least just as a matter of courtesy,

[00:17:17] Speaker 04:
to give her more than what she thought was two days to then turn around, get notice that she's not going to represent her, and then run around and try to find another lawyer or do whatever she needed to do.

[00:17:29] Speaker 04:
So the question is, who had the burden?

[00:17:31] Speaker 01:
Well, the question in the context of equitable tolling is not just whether there is an extraordinary circumstance of attorney abandonment, but also due diligence.

[00:17:40] Speaker 01:
And that raises the issue of burden here, of who was responsible for filing that notice of appeal.

[00:17:46] Speaker 02:
There's no question here, but that Eagle was negligent.

[00:17:49] Speaker 02:
And there may be a malpractice action that Ms.

[00:17:54] Speaker 02:
Sneed could bring against Ms.

[00:17:55] Speaker 02:
Eagle.

[00:17:56] Speaker 02:
But obviously, under the cases, attorney negligence is not enough to result in equitable total.

[00:18:03] Speaker 01:
That's correct, Your Honor.

[00:18:04] Speaker 02:
And the... The question here is whether Ms.

[00:18:10] Speaker 02:
Sneed could rely on the fact that she was being taken care of.

[00:18:14] Speaker 02:
during the period that Mrs. Eagle had the case?

[00:18:17] Speaker 01:
Well, the Veterans Court found that Ms.

[00:18:23] Speaker 01:
Sneed was not diligent during that 120-day period, not simply after she received the letter, but her responsibility to make sure the notice of appeal was filed.

[00:18:32] Speaker 01:
Ms.

[00:18:32] Speaker 01:
Sneed's responsibility was given, was made clear by the Board of Veterans Appeals.

[00:18:37] Speaker 02:
Where do we find, in the Board of Veterans Appeals, not so much in the Veterans Court?

[00:18:42] Speaker 01:
Both, Your Honor.

[00:18:43] Speaker 02:
Where do we find it in the Board decision?

[00:18:48] Speaker 01:
The Board of Veterans Appeals on J827, this is the part of the decision after the decision in the Board of Veterans Appeals.

[00:19:00] Speaker 01:
It also sends your rights to appeal our decision.

[00:19:03] Speaker 01:
And about halfway down the page it says, you should know that even if you have a representative as discussed below and then in italics, it is your responsibility to make sure that your appeal is filed to the

[00:19:12] Speaker 01:
to the court on time.

[00:19:14] Speaker 01:
And then it says, if there are any questions about how to appeal, it says send your notice here.

[00:19:19] Speaker 02:
Yeah, but where did the board find that she wasn't diligent?

[00:19:23] Speaker 01:
Excuse me, if I said that the board found that there was no diligence, I misspoke.

[00:19:29] Speaker 01:
The Veterans Court is the one that made a finding on diligence.

[00:19:32] Speaker 02:
Where's the finding of diligence with respect to what she should have done during the period when Ms.

[00:19:38] Speaker 02:
Eagle had the case?

[00:19:39] Speaker 01:
So on JA9,

[00:19:42] Speaker 01:
the Veterans Court, that full paragraph in the middle of the page is a discussion about diligence.

[00:19:50] Speaker 01:
It starts saying the appellant has not diligently pursued her appeal rights and does not restrict its analysis to that 29-day delay, but in fact discusses the whole period.

[00:20:00] Speaker 01:
Discusses during the 120-day period, there was contact with the attorney and sending an attorney, but there was no action during the 120-day period to confirm that

[00:20:12] Speaker 01:
the attorney was required to file the appeal or that an appeal had been filed with this court.

[00:20:16] Speaker 01:
That's a finding by the Veterans Court.

[00:20:18] Speaker 04:
No, but see, this is, I think, as I read that, I was a little confused because when you get to the end of that paragraph, they say, although the letter incorrectly stated blah blah blah, excuse two days of the 29 delay delay, the appellant's actions during the next 26 days do not show diligence.

[00:20:35] Speaker 04:
So there's a difference.

[00:20:36] Speaker 04:
I think Judge Dyke is asking you about the diligence in the pre,

[00:20:40] Speaker 01:
And that's the earlier sentences in that paragraph.

[00:20:43] Speaker 01:
The paragraph analyzes the 120-day period.

[00:20:46] Speaker 01:
Then that says, well, the two-day period, the August 3rd to August 5th, that would be excused because she had a representation from Ms.

[00:20:54] Speaker 01:
Eagle, an incorrect representation that it wasn't due until August 5th.

[00:20:58] Speaker 01:
And then August 5th to September 1st, it also analyzes.

[00:21:02] Speaker 01:
It's not simply looking at those 26 days or the 29 days, but in fact the 149 days.

[00:21:10] Speaker 01:
that Ms.

[00:21:12] Speaker 01:
Sneed had the responsibility to file the notice of appeal.

[00:21:19] Speaker 03:
So the... Assume that Judge Deck is correct and that Ms.

[00:21:22] Speaker 03:
Eagle committed malpractice in her dealings with her client.

[00:21:30] Speaker 03:
Okay, Your Honor.

[00:21:32] Speaker 03:
Under those circumstances, is the court in error

[00:21:38] Speaker 03:
in its initial analysis such that we need to let them look at it again if we reverse them on that.

[00:21:47] Speaker 01:
No, Your Honor.

[00:21:48] Speaker 01:
The Veterans Court looked at attorney abandonment and whether there was an attorney-client relationship, but if the Court disagrees with that, the Veterans Court did not look at this as, well, you have to meet this specific

[00:22:02] Speaker 01:
formula, you have to have attorney abandonment or else there's no equitable tolling, made a more broad statement as well in terms of whether there was an extraordinary circumstance regardless of whether there was an attorney-client relationship.

[00:22:17] Speaker 01:
And that's on page JA8.

[00:22:22] Speaker 01:
The Veterans Court has just discussed that there was no attorney-client relationship and then goes on to say furthermore, Ms.

[00:22:28] Speaker 01:
Eagle's conduct

[00:22:29] Speaker 01:
does not constitute the type of conduct that it supports extraordinary circumstances.

[00:22:33] Speaker 01:
Both the attorney-client relationship issue, but also no evidence that Ms.

[00:22:37] Speaker 01:
Eagle provided the appellant with any incorrect or misleading information other than that.

[00:22:42] Speaker 03:
Well, they say furthermore her conduct in notifying the appellant the day before.

[00:22:46] Speaker 01:
Yes.

[00:22:46] Speaker 01:
Yes.

[00:22:47] Speaker 01:
That's very limited.

[00:22:50] Speaker 01:
But it is looking at Ms.

[00:22:51] Speaker 01:
Eagle's conduct, and that's the only conduct that we really have on the record from Ms.

[00:22:55] Speaker 01:
Eagle, that she received these documents and then didn't contact her until

[00:22:59] Speaker 01:
didn't contact Ms.

[00:23:00] Speaker 01:
Sneed until that day before.

[00:23:02] Speaker 01:
That's the conduct that Ms.

[00:23:03] Speaker 01:
Eagle made, and that could be the basis of it.

[00:23:08] Speaker 03:
Well, my other conduct is I'm doing an air quote, committing malpractice or, alternatively, sitting on the case.

[00:23:17] Speaker 01:
That's conduct.

[00:23:20] Speaker 01:
The Veterans Court was looking at- You're nodding, yes.

[00:23:23] Speaker 03:
You have to say, if you're agreeing,

[00:23:25] Speaker 03:
You have to say.

[00:23:26] Speaker 01:
Oh, my nodding was I think I understand what your honor is asking.

[00:23:32] Speaker 01:
That the Veterans Court looked at Ms.

[00:23:37] Speaker 01:
Eagle's conduct.

[00:23:38] Speaker 01:
That conduct is that she only did this one thing.

[00:23:40] Speaker 01:
Maybe she should have done something else as well.

[00:23:44] Speaker 01:
But the Veterans Court was not required to make a finding about whether there was malpractice to determine whether this was the type of egregious behavior that was

[00:23:55] Speaker 01:
constitute an extraordinary circumstance for equitable tolling.

[00:23:59] Speaker 01:
The reasons for equitable tolling are different from determining under California law whether there was malpractice.

[00:24:07] Speaker 01:
And that would be something that would be appropriate to bring before the California bar, but not something that the Veterans Court had to make a finding on, because it could make a broader discussion of whether this is an extraordinary circumstance, whether this is an egregious circumstance.

[00:24:21] Speaker 04:
Well, if we disagree with you on the first part, then do we need

[00:24:25] Speaker 04:
How does CHECO apply here in terms of the stopwatch, whatever it is called?

[00:24:29] Speaker 01:
Stop clock approach, Your Honor.

[00:24:32] Speaker 01:
Our position is that CHECO applies only when there is a very specific start and stop.

[00:24:37] Speaker 01:
There has to be a time to start the stop clock and time to stop it.

[00:24:42] Speaker 01:
Ms.

[00:24:43] Speaker 01:
Snead has made clear at this point that the time period, which she believes is that period, some undefined time period at which there was some attorney-client

[00:24:54] Speaker 01:
relationship created, and then the end of that time period is the August 2nd receipt of that letter.

[00:25:03] Speaker 01:
Because there's no start, we would say the checkout doesn't apply.

[00:25:07] Speaker 01:
But even if it did, the board has already made a finding with respect to the entire period.

[00:25:16] Speaker 01:
It's discussed diligence

[00:25:19] Speaker 01:
throughout that whatever the start date to the end of the 120-day period.

[00:25:24] Speaker 01:
So it wouldn't be necessary to remand for it for the Veterans Court to say, again, well, now not looking at the entire period, but the shorter period, there's still no diligence because we've already discussed diligence.

[00:25:36] Speaker 04:
Well, they didn't consider, though, whether any portion, assuming they found went the other way on the pre-August 2nd time, they haven't discussed

[00:25:47] Speaker 04:
what period, therefore, of the stock would be applicable.

[00:25:51] Speaker 01:
But the Veterans Court did state that Ms.

[00:25:55] Speaker 01:
Snead made no efforts within the entire 128-day period.

[00:25:59] Speaker 01:
There's no evidence.

[00:26:00] Speaker 04:
No, but I'm suggesting hypothetically that we don't buy that, and we think the diligence or the error was exclusively on the attorney and not on the client, so that we can't tag her with the absence of due diligence in the pre-August 2nd period.

[00:26:16] Speaker 04:
So then we're just looking.

[00:26:17] Speaker 04:
We're left with, OK, was there diligence then after that?

[00:26:21] Speaker 04:
And Cheko would seem to suggest that maybe she gets some period of time.

[00:26:26] Speaker 04:
Right, Janice, you know what I'm saying?

[00:26:28] Speaker 04:
I think so, although I- Let's assume your argument with respect to everything that happened pre-August 2nd is rejected.

[00:26:35] Speaker 04:
And therefore, are we left with an argument?

[00:26:39] Speaker 04:
Does the government still say that even if that's true, even if she didn't act diligently,

[00:26:45] Speaker 04:
after August 2nd, because she took 29 days, and she should have acted more diligently under the circumstances.

[00:26:52] Speaker 04:
And Checo might suggest, at least I think your friend would argue, that Checo suggests that the time, there ought to be some proportionate, some proportion of the 120 days ought to inure to her after August 2nd.

[00:27:07] Speaker 01:
Right.

[00:27:07] Speaker 01:
So when Checo does apply, if there was a 30-day period in the Parrott case,

[00:27:15] Speaker 01:
before the Veterans Court, which is cited by Ms.

[00:27:17] Speaker 01:
Sneed in the reply brief, is a good example of this.

[00:27:19] Speaker 01:
If there was a time at which she believed someone was filing her notice of appeal for her, Ms.

[00:27:24] Speaker 01:
Eagle represents me.

[00:27:26] Speaker 01:
And if that was a reasonable belief, we disagree with that.

[00:27:28] Speaker 01:
But if there was a specific time to start it and a specific time when she learned that Ms.

[00:27:33] Speaker 01:
Eagle was not going to be filed for her.

[00:27:36] Speaker 04:
Oh, we have the end time.

[00:27:37] Speaker 01:
You're suggesting there's ambiguity.

[00:27:38] Speaker 04:
That's the August 2nd.

[00:27:39] Speaker 01:
Then that just sort of shifts whenever the date would be.

[00:27:43] Speaker 01:
That's correct.

[00:27:44] Speaker 01:
And then the filing deadline would be, say, it's a period of 60 days.

[00:27:48] Speaker 01:
It would be 60 days later.

[00:27:49] Speaker 01:
That's correct.

[00:27:51] Speaker 03:
So then she would have been within the time.

[00:27:53] Speaker 01:
If it were 60 days, it's unclear again.

[00:27:56] Speaker 01:
And our position then is that Ms.

[00:27:59] Speaker 01:
Snead had the opportunity to present evidence before on remand and did not present any evidence about when she could have reasonably believed that Ms.

[00:28:07] Speaker 01:
Eagle was representing her.

[00:28:09] Speaker 01:
and that Ms.

[00:28:11] Speaker 01:
Eagle was supposed to be filing the notice of appeal.

[00:28:15] Speaker 01:
There was, under the Supreme Court's recent case in Menominee, I'm not sure how to pronounce it, Menominee tribes, the court makes very clear that there has to be both the extraordinary circumstance and due diligence during that period.

[00:28:31] Speaker 01:
So the due diligence from prior to the August 3rd deadline, that period you'd have to look

[00:28:38] Speaker 01:
not just at whether there was an extraordinary circumstance of what the attorney was doing, but also Miss Snead still had responsibilities to be acting diligently herself, and that is what the Veterans Court found was lacking here.

[00:28:52] Speaker 02:
Well, maybe also there's a question of whether there's an extraordinary circumstance, because what the Supreme Court is talking about in Maples is a situation where someone has undertaken to represent somebody and defaults in the performance of that obligation, whereas here,

[00:29:08] Speaker 02:
even if there's an attorney-client relationship, the lawyer hasn't agreed to the representation, but is still investigating it.

[00:29:16] Speaker 02:
And the question is whether that constitutes an extraordinary circumstance.

[00:29:19] Speaker 01:
Yes, Your Honor.

[00:29:19] Speaker 01:
And it is certainly worth noting that in the cases in which courts have found that there was an extraordinary circumstance from attorney abandonment, there is evidence of the client repeatedly asking the attorney to do something, reaching out to the court asking for the

[00:29:37] Speaker 01:
the attorney to be removed, trying to get this notice of appeal filed or whatever needed to be filed to be filed.

[00:29:43] Speaker 01:
And there's no evidence of that here.

[00:29:45] Speaker 01:
And so that would suggest that with respect to what was outside of Ms.

[00:29:50] Speaker 01:
Sneed's control, she would have had to show that she believed that this notice of appeal had been filed, that she was told that it was filed.

[00:29:58] Speaker 01:
Again, that's like the Parrott case where the Veterans Service Organization said, oh, yes, we've got this under control.

[00:30:03] Speaker 01:
We're taking care of it for you.

[00:30:06] Speaker 01:
enough to rely on that.

[00:30:08] Speaker 01:
I see my time is up, and therefore we respectfully request that the... I just want to say, Ms.

[00:30:13] Speaker 03:
Gerber, that I attribute to your youth, and it saddens me that you don't know the word Menominee, because if you were my age, you would have subscribed to the Menominee Falls Guardian, which published only every comic strip that had been published in the United States for the last month, once a month.

[00:30:30] Speaker 03:
And I read it religiously all through law school.

[00:30:33] Speaker 01:
Well, I'm going to have to look that up, Your Honor.

[00:30:35] Speaker 01:
Thank you.

[00:30:36] Speaker 01:
Thank you.

[00:30:44] Speaker 00:
Just would like to make a couple of brief points.

[00:30:49] Speaker 00:
First, there's the discussion of CHECO by my friend.

[00:30:52] Speaker 00:
And I would just like to point out that the, and for the first time I heard sitting here today, that CHECO only applies when you have a definitive beginning and end date.

[00:31:01] Speaker 00:
First, that's nowhere in their brief.

[00:31:02] Speaker 00:
In their brief, they say,

[00:31:04] Speaker 00:
27 to 28 of their brief, they say that Checo doesn't apply here because there's no definitive end date.

[00:31:10] Speaker 00:
And that's actually the holding of Checo, they quote from it, when the extraordinary circumstance period has a definitive end date, for example, totally.

[00:31:17] Speaker 04:
That may be true, although my recollection of Checo is it relied on a Second Circuit case, and it only did what it had to do in the Checo case.

[00:31:28] Speaker 04:
But I think the case on which it relied on, relied on the Second Circuit, had a beginning and end date.

[00:31:32] Speaker 04:
But that's just my recollection.

[00:31:34] Speaker 00:
And secondly, just on this point of the point of diligence of Ms.

[00:31:38] Speaker 00:
Snead, if you go and look at the entire eight year period of time that she was advancing trying to get this death benefits, this is the first deadline that she missed.

[00:31:49] Speaker 00:
Eight days after she got the board's decision, she reached out and called an attorney.

[00:31:53] Speaker 00:
She then had several additional communications with that.

[00:31:55] Speaker 00:
When she got the letter on the second, she went and called 14 different attorneys in the span of a couple of weeks to find out what she needed to do to get it filed because she didn't understand

[00:32:04] Speaker 00:
that this, while she understood she was told, you know, you could file this yourself, she had no concept of what type of document this is.

[00:32:11] Speaker 00:
She didn't know that it just needed to be one sentence.

[00:32:13] Speaker 04:
But ultimately, she did it right, right?

[00:32:15] Speaker 04:
I mean, then all else failed, I guess, and she managed to get it done pretty easily, right?

[00:32:22] Speaker 00:
Ultimately, she called the Veterans Court, and they, for the first time, explained to her, this is just a one-sentence thing that says, I disagree, and I want an appeal.

[00:32:29] Speaker 04:
Did Miss Eagle tell her something of this sort, too?

[00:32:31] Speaker 00:
No, she gave her the exact same.

[00:32:33] Speaker 00:
She gave her the exact same information that's contained on the document from the board that they referred to, which is that you can file this yourself.

[00:32:39] Speaker 00:
No one until she called the Veterans Court had ever said to her, this is essentially a non-substantive document.

[00:32:43] Speaker 00:
It's just a one-sentencing that says, I appeal.

[00:32:45] Speaker 00:
And as soon as she found out that information, she filed it.

[00:32:49] Speaker 00:
For these reasons, we respectfully request that you vacate and remand the Veterans Court's decision.

[00:32:54] Speaker 04:
Thank you.

[00:32:54] Speaker 04:
We thank both counsel.

[00:32:55] Speaker 04:
The case is submitted.