[00:00:00] Speaker 03:
The argument is 17-1-0-0-6, Cron v. Shulkin.

[00:00:39] Speaker 02:
This case deals with an interpretation of when the time period for filing in each application commences.

[00:00:55] Speaker 03:
I don't believe there's any... Well, let me start off by asking you, Mr. Carpenter.

[00:00:58] Speaker 03:
I mean, there are a lot of interesting meeting issues that are swirling around in this case.

[00:01:04] Speaker 03:
But tell me why the case doesn't begin and end with the fact that

[00:01:09] Speaker 03:
Your client was told, notice to show cause, why you were untimely.

[00:01:15] Speaker 03:
He had the opportunity to make all of these arguments and more, and he never responded.

[00:01:21] Speaker 03:
Why isn't that the beginning of the end of this case without having to decide all of the very meeting legal issues that most of you have briefed?

[00:01:30] Speaker 02:
Well, I would suggest, Your Honor, it's because of the nature of the order that was issued.

[00:01:35] Speaker 02:
And the order in this case was a dismissal on jurisdictional grounds.

[00:01:39] Speaker 02:
that the filing of the application was not timely.

[00:01:44] Speaker 02:
And therefore, whether there was or was not a response to the show cause order does not vitiate the fact.

[00:01:50] Speaker 01:
That's an argument that would have been made in response to the order to show cause.

[00:01:57] Speaker 01:
And you're making an argument now that could not have been made at that time.

[00:02:01] Speaker 01:
So this is a new argument.

[00:02:02] Speaker 01:
We can't hear this new argument.

[00:02:06] Speaker 01:
What can you even present today?

[00:02:09] Speaker 01:
that you haven't waived by failure to show, respond to the order to show cause.

[00:02:16] Speaker 02:
The decision to dismiss was relied upon by the Veterans Court an interpretation of the Aegis Statute that the filing was untimely.

[00:02:27] Speaker 02:
which necessarily goes to the question of law as to whether or not judgment was ever entered in this case.

[00:02:33] Speaker 03:
And why would that not have been the argument you could have or should have made in responding to the notice to Chaucot?

[00:02:41] Speaker 02:
Well, the only explanation I can offer for that is that the same reason that the application was not filed within 30 days of the mandate was because the counsel representing below simply did not understand

[00:02:55] Speaker 02:
uh... the law and the rules of the court below and therefore was not in a position to be able to uh... present a response to the show cause order if the response to show cause order is a predicate to consideration by this court then obviously but this court doesn't have to consider any arguments i don't understand what it means to show cause well i believe i do your honor but i i i i'm not sure counsel below understood that could that be a good argument

[00:03:26] Speaker 01:
to be made before us.

[00:03:27] Speaker 01:
That counsel below did not understand something as fundamental and basic as what it takes to respond to in order to show cause.

[00:03:37] Speaker 02:
And my response to that is twofold.

[00:03:39] Speaker 02:
One, the nature of the proceeding, that it is a veterans proceeding.

[00:03:43] Speaker 02:
And second, that it is an IJA proceeding.

[00:03:46] Speaker 02:
And it's a proceeding under the IJA statute that is intended to be remedial.

[00:03:51] Speaker 02:
The clear intent of Congress in creating IJA

[00:03:54] Speaker 02:
was to compensate the appellant.

[00:03:56] Speaker 01:
That argument would have some legs if there had been some response, but there was no response.

[00:04:06] Speaker 02:
And I can only deal with the situation that I was presented with, Your Honor, and if that's the view of this court, then I will simply not waste the court's time by going into the arguments.

[00:04:18] Speaker 02:
I fully appreciate that and understood that at the time in which this was filed.

[00:04:23] Speaker 02:
uh... that that that that was a a substantial risk because there was no response to the show cause order but but that is what counsel did to the detriment of his client and this should be about mister brown not about any uh... negligence uh... or uh... ill-attentioned uh... by his counsel but that's not what this case is about what you've been arguing in this case

[00:04:52] Speaker 03:
This case, we can't morph it at this stage into being all about whether or not this guy had adequate representation and whether his remedy is to seek a malpractice suit or to get recovery here.

[00:05:05] Speaker 03:
So I appreciate and respect what you're saying.

[00:05:09] Speaker 03:
It's just not for us to handle in these circumstances.

[00:05:15] Speaker 01:
In addition to that, Counselor, I mean, look, we're arguing about attorney's fees, not arguing about the veteran's rights.

[00:05:22] Speaker 01:
preservation of those rights.

[00:05:24] Speaker 01:
Where are you going about attorney's fees?

[00:05:26] Speaker 01:
This argument, I'm surprised that it's before us.

[00:05:31] Speaker 02:
Well, Your Honor, it has to do with the veteran's right to those benefits.

[00:05:37] Speaker 02:
The law is clear, I personally think the law is incorrect, that this should be about the attorney and his fees, but the law clearly says that EGIA is the property of the veteran.

[00:05:50] Speaker 02:
And so long as that's the law,

[00:05:52] Speaker 02:
it seems to me that that it is appropriate to bring to the court's attention when there was an error committed below.

[00:05:59] Speaker 03:
Can I ask you just as a side question and this is we just don't get that many each of cases and maybe I knew this once and I've just forgotten but the posture of this case is it was sent back for the joint remand and they were going to reevaluate it.

[00:06:15] Speaker 03:
Firstly, what is the status of that?

[00:06:17] Speaker 03:
As far as I know nothing has been done.

[00:06:20] Speaker 03:
Unfortunately that doesn't surprise me.

[00:06:22] Speaker 03:
Um, but is it not, let's assume it goes back and the board finds in your client's favor on the, we're talking about a retroactive date.

[00:06:32] Speaker 03:
That's correct.

[00:06:34] Speaker 03:
Can you not, I mean, presumably there's a, there would be a recovery for each potential recovery for each of East.

[00:06:40] Speaker 03:
No, that as well.

[00:06:41] Speaker 02:
No, there were not, your honor, because that's at the administrative level.

[00:06:44] Speaker 02:
those fees on remand.

[00:06:47] Speaker 03:
Okay, so let's say he loses there and then you appeal it to the second round and you prevail there.

[00:06:53] Speaker 03:
Would you not be able to go back and recover attorney's fees for the entire proceeding at that stage or would you be foreclosed from proceedings leading to the remand?

[00:07:04] Speaker 02:
As far as I am aware, Your Honor, I don't know of any case in which that has happened.

[00:07:08] Speaker 02:
I like the theory and will make a note to pursue it.

[00:07:15] Speaker 03:
Don't cite me for that.

[00:07:18] Speaker 02:
I would be not so presumptuous, Your Honor, but as far as I know, that's never been attempted.

[00:07:25] Speaker 03:
But there's a case below... You get fees for each separate stage?

[00:07:29] Speaker 02:
That's just the way it operates?

[00:07:30] Speaker 02:
Well, there's a case below called Cleary and in the Cleary case the court said once they relinquish jurisdiction that's the end of the matter and that closes the matter and there will not be recovery for each under the Equal Access to Justice Act for the work performed on remand.

[00:07:46] Speaker 02:
So the only benefit potentially would be the award of past due benefits which I believe in this case takes out

[00:07:53] Speaker 02:
the counsel that was represented at court, that the counsel represented at court is not representing below.

[00:08:02] Speaker 02:
I apologize for taking up the court's time.

[00:08:07] Speaker 02:
I will not then proceed to the merits of the case.

[00:08:12] Speaker 02:
Thank you.

[00:08:23] Speaker 00:
May it please the court?

[00:08:25] Speaker 00:
There are, as Chief Judge Crost pointed out, there are some weighty issues here, but as counsel has just said, he feels that the waiver or the failure to respond to the order to show cause is dispositive.

[00:08:38] Speaker 00:
We've addressed that in our brief.

[00:08:40] Speaker 03:
We would agree, unless the court... Well, that's not his position.

[00:08:45] Speaker 03:
That's what he perceives to be our position.

[00:08:49] Speaker 00:
Fair.

[00:08:50] Speaker 00:
Well, then I will say we've addressed that in our brief.

[00:08:52] Speaker 00:
In case that is not the court's position, let me turn to those weighty questions.

[00:08:57] Speaker 02:
Why don't you just focus on waiver?

[00:09:00] Speaker 02:
Why is it waived?

[00:09:03] Speaker 00:
Well, it would be waived for two reasons.

[00:09:05] Speaker 00:
First, because the order below very specifically says we're dismissing because you did not respond to the order to show cause.

[00:09:12] Speaker 00:
That is the last substantive line of the order.

[00:09:14] Speaker 00:
And then secondly, as Judge Raina pointed out, the argument, specific argument, being made here wasn't raised below.

[00:09:20] Speaker 00:
So it would be waived on that level.

[00:09:23] Speaker 00:
Because these arguments, therefore, are not properly before the court and because the court below was correct to dismiss based on failure to respond to in order to show cause, we think the correct result here is to affirm.

[00:09:38] Speaker 00:
Thank you.

[00:09:39] Speaker 00:
Thank both parties and the cases submitted.