[00:00:47] Speaker 01:
May it please the court, Kenneth Carpenter appearing on behalf of Sean Raven.

[00:00:52] Speaker 01:
The unambiguous language of 38 USC section 7252B clearly limits the evidence which can be considered by the Veterans Court.

[00:01:02] Speaker 01:
As a result, under the correct interpretation of section 7252B, the sanctions imposed by the Veterans Court cannot stand.

[00:01:11] Speaker 02:
If in fact there's a limitation on what the Veterans Court can consider for purposes of a merits determination, do you think that that is what limits their ability to consider that information for purposes of a sanctions limitation?

[00:01:27] Speaker 01:
That was the basis of the complaint that was filed by the VA during the course of the litigation.

[00:01:33] Speaker 01:
And it seems to me that that complaint asserted that the

[00:01:42] Speaker 01:
Mr. Raven had violated his ethical obligation to be handed to the court about something that was prohibited by statute from being considered.

[00:01:54] Speaker 02:
So what you're saying is we can lie to the court as long as that lie doesn't affect the merits?

[00:02:04] Speaker 01:
No, Your Honor.

[00:02:06] Speaker 01:
And I don't think it's fair to characterize

[00:02:09] Speaker 01:
Mr. Raven's response in his pleading as a lie.

[00:02:13] Speaker 01:
The difficulty is that the way in which this was presented by the government was attempting to work around the limitation of 7252B.

[00:02:26] Speaker 02:
I don't disagree that that's probably the case.

[00:02:31] Speaker 02:
But why couldn't he have just said,

[00:02:34] Speaker 02:
Even if that's true, it's not pertinent to this proceeding.

[00:02:38] Speaker 02:
And the court can't consider it.

[00:02:40] Speaker 02:
The Federal Circuit has said the court can't consider that information in this particular proceeding.

[00:02:45] Speaker 01:
That is clearly the way that he should have responded, Your Honor.

[00:02:49] Speaker 01:
He was confronted with a situation in which he didn't know how to say to the court that this matter could not be considered, because as he read the rule, it didn't exist.

[00:03:03] Speaker 01:
It didn't exist because it wasn't before the board.

[00:03:07] Speaker 01:
Now, I'm not sure that that was the appropriate way to read 7252, and that the more appropriate way would have been, as you suggest, to simply say to the court that the attempt to discuss matters that weren't before the board at the time of the board's decision precludes the court from any consideration of any matter.

[00:03:29] Speaker 02:
That's the problem, is that that's not what he said.

[00:03:31] Speaker 02:
And then when he had a chance to fix it,

[00:03:34] Speaker 02:
He sort of doubled down on it.

[00:03:36] Speaker 02:
And so the problem is now we've got a discretionary decision by the Veterans Court that they believe that he made a direct misrepresentation instead of arguing a legal point, which he could have argued.

[00:03:51] Speaker 01:
But I don't think that that's what was the basis for the decision below.

[00:03:57] Speaker 01:
I think the basis for the decision below was based exclusively upon Solzy, that the

[00:04:03] Speaker 01:
uh... that mister raven had an affirmative duty to bring this matter to the attention of the court and he had no such duty

[00:04:11] Speaker 01:
There was no duty on the part of Mr. Raven to bring the matter to the attention of the court.

[00:04:16] Speaker 03:
I don't understand that response.

[00:04:17] Speaker 03:
I thought that the decision was below, was that he was sanctioned for a lack of candor based on misrepresentations to the court.

[00:04:26] Speaker 03:
I don't think that it was a curative requirement, as much as it was an affirmative, you made misrepresentations to the court.

[00:04:33] Speaker 03:
In his reply brief, he made misrepresentations to the court.

[00:04:37] Speaker 03:
Quite dramatic ones.

[00:04:39] Speaker 03:
because he went so far as to say, let's see, well, I'm not going to impugn the honesty of the secretary.

[00:04:44] Speaker 03:
However, there's no evidence anything was filed in this record.

[00:04:48] Speaker 03:
There's no evidence they ever adjudicated anything.

[00:04:50] Speaker 03:
I mean, that's wow.

[00:04:53] Speaker 03:
When he already knew it had already been adjudicated to even throw in their honesty in impugning the secretary into that mixture, that's worse than just saying there's nothing in this record.

[00:05:08] Speaker 01:
This is a tough one, Mr. Carpenter.

[00:05:11] Speaker 01:
I beg your pardon?

[00:05:11] Speaker 03:
This is a tough one for you.

[00:05:12] Speaker 01:
Well, it is a tough one, Your Honor, but it is one in which... Because you dance around sometimes in your cases, but I've never seen you do something like this.

[00:05:23] Speaker 01:
I'm not sure how to respond to that, Your Honor.

[00:05:26] Speaker 01:
Take it as a compliment.

[00:05:28] Speaker 01:
It was meant that way, though.

[00:05:30] Speaker 02:
I accept that it may not fully... It was meant as a compliment.

[00:05:37] Speaker 02:
Judge Moore started I think is important because you do spend a lot of time in your brief about the duty of candor and you say, understandably, how can I have an obligation to tell them about something that's not in the record and that they're not even allowed to consider.

[00:05:52] Speaker 02:
But that's not what they relied upon.

[00:05:55] Speaker 02:
They were not looking at the duty of candor.

[00:05:57] Speaker 02:
They actually said knowingly making a false statement.

[00:06:01] Speaker 02:
That's the model rule that they cite.

[00:06:04] Speaker 01:
Correct, Your Honor.

[00:06:05] Speaker 01:
But the basis for the complaint by the VA was on the failure of candor to the court.

[00:06:13] Speaker 01:
And then the court, in saying that there was something misleading said, relied upon a provision that doesn't exist.

[00:06:24] Speaker 01:
There is no provision for him to come forward and advise the court

[00:06:30] Speaker 01:
Now, they say, and I believe it's in the concluding paragraph or the paragraph before their conclusion, that they rely upon the recommendation of the committee based upon the decision in Solzy.

[00:06:44] Speaker 01:
And the Solzy decision is one that places an affirmative duty to come forward with information that you have knowledge about.

[00:06:54] Speaker 01:
Now, under 7252B,

[00:06:57] Speaker 01:
There is no duty on the part of either party to come forward with that information.

[00:07:03] Speaker 03:
There's a difference between coming forward and saying, oh, yeah, by the way, they already adjudicated this, and saying five separate times something pretty close to it hasn't been adjudicated.

[00:07:13] Speaker 03:
I realize he couched as, well, there isn't evidence in this record that it's been adjudicated.

[00:07:18] Speaker 03:
But then he says, there's no guarantee the VA would adjudicate his entitlement to TDIU.

[00:07:24] Speaker 03:
They already had.

[00:07:25] Speaker 03:
But for him to say there's no guarantee they would adjudicate it when he knew they had already adjudicated it is, I mean, it's just too much.

[00:07:33] Speaker 03:
There's so many of them.

[00:07:34] Speaker 03:
And besides it, how is that within our jurisdiction?

[00:07:37] Speaker 03:
Any of this kind of discussion?

[00:07:39] Speaker 01:
I don't believe any of that kind of discussion is within your jurisdiction, Your Honor.

[00:07:43] Speaker 01:
What is within your jurisdiction is the clear conflict here between 7252B and the mandate of Solzy.

[00:07:52] Speaker 02:
This decision by the court below.

[00:08:08] Speaker 01:
But it can't be a knowing misstatement of fact or law because it wasn't in the record.

[00:08:15] Speaker 03:
That was what was trying to be... But if you stood up here and told me you were a lawyer and a member of our bar and tried to argue a case, are you telling me that if our clerk ran in and said, no, he's not a member of the bar, I wouldn't be allowed to consider that?

[00:08:26] Speaker 03:
I'd have to let you keep going and I couldn't sanction you even for having made the misrepresentation because technically that's outside the record?

[00:08:33] Speaker 01:
No, Your Honor.

[00:08:35] Speaker 01:
But the point is, is that this happened in the course of litigation.

[00:08:39] Speaker 01:
There was an ongoing appeal in which the VA was trying to do an end around to avoid the concession that they had made in their brief that in fact the issue had been raised and the board ignored that issue.

[00:08:54] Speaker 01:
That was a clear error of law by the board.

[00:08:57] Speaker 01:
That was the end of that appeal.

[00:08:59] Speaker 03:
Yes, but when it comes to deciding whether an attorney should be sanctioned,

[00:09:03] Speaker 03:
for something improper he does in the courtroom, whether it's throw a pen at the judge or make a misrepresentation to the judge.

[00:09:11] Speaker 03:
Under all of the circumstances, I don't see why the merit-based statute that limits you in terms of deciding cases to the record ought to apply to whether or not the court should sanction that attorney for their misbehavior.

[00:09:27] Speaker 01:
Why that law?

[00:09:29] Speaker 01:
The canon that Judge O'Malley just referred to requires a knowing misrepresentation of law or fact.

[00:09:38] Speaker 01:
He didn't knowingly misrepresent the fact that it was not in the record before the board.

[00:09:47] Speaker 02:
That part, when he said it's not in the record, that was correct.

[00:09:52] Speaker 02:
When he said, and it didn't happen.

[00:09:55] Speaker 01:
And that, frankly, goes too far.

[00:09:59] Speaker 01:
But that's the problem.

[00:10:02] Speaker 01:
But it goes too far factually.

[00:10:04] Speaker 01:
It doesn't go too far in terms of making a misrepresentation to the court, knowingly saying something false about the content of the record, Your Honor, and that's what 7252 is about.

[00:10:22] Speaker 01:
Congress mandated that the record that was going to be considered by the Veterans Court was going to be limited to the record that was before the board.

[00:10:30] Speaker 01:
And that the VA was not going to be allowed on appeal to do precisely what they tried to do in this appeal.

[00:10:37] Speaker 01:
And then this court, when it was appealed to this court, reversed that decision.

[00:10:43] Speaker 02:
I completely get that.

[00:10:43] Speaker 02:
I mean, it was pretty obvious that what the government did, what the VA did, was wrong.

[00:10:48] Speaker 02:
Having said that, the response should have been, this is completely inconsistent with what they're allowed to do.

[00:10:55] Speaker 02:
It's completely inconsistent with what you can review.

[00:10:57] Speaker 02:
And it's completely inconsistent with what the Federal Circuit said.

[00:10:59] Speaker 02:
But that's not what he did.

[00:11:02] Speaker 01:
I understand.

[00:11:03] Speaker 01:
But that's not a knowing misrepresentation that violates that canon.

[00:11:09] Speaker 01:
that canon requires a knowing misrepresentation of law or fact.

[00:11:14] Speaker 01:
The law was that it couldn't have been in the record, and the fact was it wasn't in the record.

[00:11:20] Speaker 02:
If the question is, does it constitute a knowing misrepresentation of fact or not, isn't that a decision that the Veterans Court gets to make, that's applying facts to law?

[00:11:34] Speaker 02:
If 7252- We don't have jurisdiction to review?

[00:11:37] Speaker 01:
If 7252b did not exist, that would be correct.

[00:11:42] Speaker 01:
But this case does not exist in a vacuum.

[00:11:45] Speaker 01:
This case happened in the course of an appeal, an appeal that was over when the VA conceded that the board had made an error.

[00:11:55] Speaker 01:
That should have been the end of the matter.

[00:11:58] Speaker 01:
The VA's manipulation of 7252 successfully got Judge Davis in the first decision.

[00:12:06] Speaker 01:
to decide that, oh, it was just a harmless error.

[00:12:09] Speaker 01:
This court correctly pointed out that, no, that's not part of the harmless error analysis because it wasn't in the record.

[00:12:17] Speaker 01:
You went beyond the record.

[00:12:20] Speaker 01:
That's what the VA invited the court to do and what the court did.

[00:12:25] Speaker 01:
Now, what Mr. Raven did was to inartfully say to the court, it's not in the record.

[00:12:31] Speaker 00:
Mr. Kramer, let me ask you.

[00:12:36] Speaker 00:
I have one question.

[00:12:37] Speaker 00:
This case was all decided on the papers.

[00:12:45] Speaker 00:
There wasn't any oral argument.

[00:12:47] Speaker 00:
Oh, correct.

[00:12:47] Speaker 00:
Yes, it was single judgment.

[00:12:48] Speaker 00:
Would it be a different situation if, in fact, he'd been in oral argument and had been asked by the court

[00:12:58] Speaker 00:
as you know happens from time to time this probably happened to you in this courtroom one or more judges have asked you because of a particular case by the way what's the status of the proceedings down before the vr board and if he'd been asked at that point and had said what he said here what would your position be if someone in the point if one of the judges if the judge had said all right i understand we're having argument on these papers

[00:13:25] Speaker 00:
What is the status of proceedings?

[00:13:27] Speaker 01:
I want to know if he were asked by a, a, a judge directly, whether or not this decision had in fact been made independent of whether it was in the record or not, then to represent otherwise would have been a violation.

[00:13:45] Speaker 00:
So that's the distinction.

[00:13:47] Speaker 01:
That is the distinction that, that, that, that we believe prohibits as a matter of law in the context of the veterans court.

[00:13:55] Speaker 01:
because of the congressional mandate that the only thing that the Veterans Court is to be looking at on appeal is the content of the record as it existed at the time of the decision, and that this court must acknowledge the end around that was being attempted to be done by the VA in order to cure what was a conceded error.

[00:14:19] Speaker 01:
I don't believe I have anything further to say.

[00:14:21] Speaker 01:
Thank you very much, Your Honors, for your time.

[00:14:23] Speaker 01:
OK.

[00:14:23] Speaker 01:
Thank you, Mr. Carpenter.