[00:00:28] Speaker 03:
The next case is number 16-21-10, Robinson against the Secretary of Veterans Affairs, Mr. Carpenter.

[00:00:37] Speaker 01:
May it please the court, Kenneth Carpenter, appearing on behalf of Mr. Benny Robinson.

[00:00:42] Speaker 01:
This court's decision in Manget, when applied by the Veterans Court, is not a bar or a conclusion to the finding under the Equal Access to Justice Act statute of purvail party.

[00:00:56] Speaker 01:
This court's decision in Nagyay was one of jurisdiction, and particularly one of the Veterans Court's jurisdiction as to whether or not it did or did not have the discretion to consider arguments that were not presented below.

[00:01:09] Speaker 01:
In this case, an argument was not presented below, but was presented before the Veterans Court, and the Veterans Court adopted that argument to the extent that the Veterans Court set aside the board's decision.

[00:01:22] Speaker 01:
In setting aside the board's decision,

[00:01:24] Speaker 01:
That implicated this court's decision in Motorola, which is an Egypt decision.

[00:01:30] Speaker 01:
When is here?

[00:01:31] Speaker 04:
Well, part of the problem is that they did set aside the decision.

[00:01:35] Speaker 04:
They set it aside based on an argument that you raised for the first time before the court, or it was before the council.

[00:01:42] Speaker 04:
Right.

[00:01:43] Speaker 04:
That they raised for the first time before the court.

[00:01:45] Speaker 04:
And so as a result, I mean, how do we say that it was a board error that

[00:01:53] Speaker 04:
caused the remand when in fact the board never addressed that question because it was never actually presented to the board.

[00:02:01] Speaker 01:
Because, Your Honor, the argument that was presented, that was presented for the first time, was accepted by the court and implicitly decided by the court that this matter, the issue raised, had to be re-adjudicated and it required further proceedings.

[00:02:20] Speaker 01:
What is required under this court's decision in

[00:02:23] Speaker 01:
is, is there a remand?

[00:02:25] Speaker 01:
And if the remand alters the legal relationship of the parties, which clearly happened here, then that qualifies for prevailing party status.

[00:02:35] Speaker 04:
Well, that's not that you're skipping a step.

[00:02:37] Speaker 04:
The remand also has to relate to some error by the board, right?

[00:02:43] Speaker 01:
Well, I believe the general law does.

[00:02:45] Speaker 01:
I do not believe this court in Motorola dealt with that other than to say,

[00:02:50] Speaker 01:
that it changed or altered the legal relationship of the parties.

[00:02:54] Speaker 01:
And in altering the legal relationship of the parties, what happened here is when they set aside the board decision, the finality of the board's decision is altered.

[00:03:04] Speaker 01:
That finality doesn't exist anymore.

[00:03:06] Speaker 04:
So you're saying that the issue of whether there was an administrative error or a legal error is irrelevant?

[00:03:13] Speaker 01:
Yes.

[00:03:14] Speaker 01:
But I believe it was also implicitly decided by the Veterans Court.

[00:03:20] Speaker 01:
It seems to me inconsistent for the Veterans Court to say that they are going to consider an issue that was not raised below and then use that issue as a legal basis to vacate a board decision and order further proceedings by the board and say that they didn't make an implicit finding of administrative error.

[00:03:44] Speaker 04:
But the board wasn't even considering the effective date, right?

[00:03:48] Speaker 04:
That issue was never even raised or presented to the board.

[00:03:52] Speaker 01:
Well, Your Honor, it's somewhat misleading to talk about this in terms of effective date.

[00:03:58] Speaker 01:
What we're talking about is the assignment of an initial rating in two discrete periods.

[00:04:03] Speaker 01:
The initial rating from, I believe, 2003 was 10% to a specific date when these tests that were delayed by 14 months, their results, those tests, once administered,

[00:04:16] Speaker 01:
justified a 60% rating.

[00:04:18] Speaker 01:
And from that date forward, the rating was assigned to 60%.

[00:04:22] Speaker 01:
This really is not an effective date question.

[00:04:25] Speaker 01:
This is a question of when was the veteran in fact disabled to the degree of 60%.

[00:04:32] Speaker 01:
The test results demonstrated that he was entitled to it when those test results were received.

[00:04:39] Speaker 01:
But both the veteran indicated an increase in the severity of his heart condition and the

[00:04:45] Speaker 01:
Cardiologists recognized that that was likely and ordered tests.

[00:04:50] Speaker 01:
Those tests were 14 months delayed.

[00:04:53] Speaker 01:
There is no reason for the board to not have addressed that factual question of whether or not that increase had, in fact, taken place when the cardiologist said that the test was necessary to confirm what that was.

[00:05:09] Speaker 02:
That may be true had that argument been raised below with the board.

[00:05:13] Speaker 02:
And so it wasn't raised.

[00:05:17] Speaker 02:
You're absolutely correct.

[00:05:18] Speaker 02:
It was not raised.

[00:05:19] Speaker 01:
But is it reasonable?

[00:05:20] Speaker 02:
Again, how can we have agency error with respect to a particular determination that wasn't put in challenge before the board?

[00:05:29] Speaker 01:
Because the agency error is implicit in the action taken by the Veterans Court in response to the issue raised.

[00:05:40] Speaker 01:
It would be irresponsible for a court

[00:05:42] Speaker 01:
the vacated decision unless there was some good cause to believe that... That sounds like a stretch.

[00:05:49] Speaker 02:
No, I think not.

[00:05:51] Speaker 02:
We require and we want arguments that are clear and specific, that point to the legal issue at hand, that give legal authority, cite legal authority.

[00:06:03] Speaker 02:
We can't go searching for implicit arguments.

[00:06:06] Speaker 02:
This may have been implicit, but it wasn't raised below.

[00:06:09] Speaker 02:
It was remanded because no one raised it below.

[00:06:12] Speaker 02:
And it was time, so how can that be agency error?

[00:06:15] Speaker 01:
It could be because it resulted in a vacating of the board's decision which altered the legal relationship of the parties.

[00:06:24] Speaker 01:
This court needs to rely upon its precedent.

[00:06:28] Speaker 02:
That's true, but we're talking about the age of fees here.

[00:06:32] Speaker 01:
That's correct.

[00:06:33] Speaker 01:
And this case is controlled by this court's decision in Motorola.

[00:06:37] Speaker 01:
has adopted on veterans issues in Halperin and is recently reaffirmed by this court's decision in Dover, which addresses the fact that the Motorola analysis applies.

[00:06:50] Speaker 02:
I thought, Paul, ago when you cited to Motorola, I wasn't sure that I agreed with your assessment as to what that case stands for.

[00:06:58] Speaker 02:
Are you saying that in Motorola that we say that every time there's a remand that there's agency there?

[00:07:05] Speaker 02:
No, I am not.

[00:07:06] Speaker 01:
If I suggested that, I apologize.

[00:07:11] Speaker 01:
I was not meaning to suggest that.

[00:07:14] Speaker 01:
What I was meaning to suggest is that Motorola delineates a specific analysis for the action taken by the court.

[00:07:22] Speaker 01:
And the action taken by the court was to grant some relief.

[00:07:28] Speaker 01:
Some relief was granted.

[00:07:30] Speaker 01:
The decision of the board was vacated.

[00:07:32] Speaker 01:
Also a relief was granted, but not in the remand itself.

[00:07:37] Speaker 01:
I disagree, Your Honor, because the relief that was sought was to get, as it were, another bite of the apple, an opportunity to re-adjudicate this with this issue in mind, this 14-month delay.

[00:07:51] Speaker 03:
So what happened then?

[00:07:54] Speaker 03:
There's something really, we've been going down a path with fact-dependent precedent, which has put the weight not on prevailing party, but on administrative error.

[00:08:07] Speaker 03:
Correct.

[00:08:07] Speaker 03:
Since the statute doesn't say that, the statute says prevailing party.

[00:08:11] Speaker 03:
And so I think one must be alert to the Motorola facts where there was a question of administrative error.

[00:08:19] Speaker 03:
Whereas here, if on remand, the veteran did not prevail.

[00:08:25] Speaker 03:
Is that what happened?

[00:08:28] Speaker 03:
Do we know whether the veteran prevailed on remand?

[00:08:32] Speaker 01:
As best I know, the board has yet to make a decision on remand.

[00:08:36] Speaker 03:
It did not prevail.

[00:08:37] Speaker 01:
has yet to make a decision.

[00:08:39] Speaker 01:
There's been no disposition on remand.

[00:08:42] Speaker 03:
Because to put it in the objective context that was intended by this statute, ultimately if you prevail and you're a veteran and meet certain threshold requirements which don't include administrative error, there might have been a change of law, there might have been other reasons

[00:09:04] Speaker 03:
by which after all of this back and forth, this has been going on for years, the veteran prevails, then at least there is some kind of presumptive entitlement to attorney's fees.

[00:09:17] Speaker 03:
But where are we here?

[00:09:18] Speaker 03:
Our precedent can be cited to say that unless there was administrative error, it doesn't matter if the veteran prevailed or not.

[00:09:32] Speaker 03:
Is that how you see precedent?

[00:09:35] Speaker 01:
I'm trying to make the distinction in the precedent of this court based upon Motorola that the question of administrative error can be looked at as it was in Dover implicitly, that the court does not need to say the magic words of we find administrative error, but to look at the necessity of the remand being based upon

[00:10:05] Speaker 01:
a obviously inferred administrative error.

[00:10:09] Speaker 01:
In other words, the court would not have taken this step unless, as I said to Judge Raina, there was reason to believe that there was an administrative error.

[00:10:18] Speaker 03:
But the court said that they didn't know.

[00:10:20] Speaker 03:
Nobody knew, at least it didn't come into the record, as to why there was that 14-month delay.

[00:10:25] Speaker 03:
If the veteran had delayed it and even asking for an appointment for the next step, perhaps it would have been looked at one way if it was clear

[00:10:34] Speaker 03:
that they said, well, you're a cardiologist, or did these tests come back after a year, and we'll see if you're still alive, or whatever, that we might look at it differently.

[00:10:47] Speaker 01:
Well, I'm not sure that was the way in which the matter was presented.

[00:10:52] Speaker 03:
The matter was presented.

[00:10:53] Speaker 03:
It said they didn't know.

[00:10:55] Speaker 01:
Well, what the court said was that the board did not explore this, that the board did not and needed to make

[00:11:03] Speaker 01:
factual findings about what happened.

[00:11:05] Speaker 02:
So in that situation, if there was an existing statute that says, in these circumstances, we would fine for the veteran.

[00:11:16] Speaker 02:
But that's not the situation here.

[00:11:19] Speaker 02:
There is no relevant statute that requires or regulation that requires a VA in situations like this to fine an award for an earlier date.

[00:11:32] Speaker 02:
If that existed,

[00:11:33] Speaker 02:
And then there's a remand.

[00:11:34] Speaker 02:
And perhaps we could say, OK, implicit in the remand is the instruction, follow the law.

[00:11:39] Speaker 02:
But here, that's not the law.

[00:11:42] Speaker 01:
I beg to differ, Your Honor.

[00:11:44] Speaker 01:
I did distinguish with Judge O'Malley about calling this an effective date statute.

[00:11:49] Speaker 01:
But it is an effective date issue.

[00:11:51] Speaker 01:
But there is an effective date statute in regulation that dictates that a issue of the assignment of the effective date will be based upon the facts found.

[00:12:04] Speaker 01:
And the factual findings were not made.

[00:12:09] Speaker 02:
But what you just said, the determination that can be made can go either way for the veteran.

[00:12:14] Speaker 02:
Of course it can go either way.

[00:12:16] Speaker 02:
If it only went one way, if it went the way of the veteran, then I think your argument about having an implicit relief may have some legs.

[00:12:27] Speaker 02:
But that's not the situation here.

[00:12:29] Speaker 01:
With respect, Your Honor, this court recently addressed that issue in Dover.

[00:12:33] Speaker 01:
The issue in Dover dealt with a wife who had survived her husband's request for revision.

[00:12:40] Speaker 01:
And the husband had not properly pled that coup claim.

[00:12:45] Speaker 01:
And at court argued that the board misapplied the law because the appropriate remedy when the husband was alive was dismissal and not adjudication.

[00:12:59] Speaker 01:
And so the court said, yes, I'm going to set that aside and then

[00:13:03] Speaker 01:
you take further proceedings back below.

[00:13:06] Speaker 01:
There was no guarantee that Mrs. Dover would prevail on the amended QClaim.

[00:13:14] Speaker 01:
This is why this court's analysis in Halpern... Here's what I'm concerned about.

[00:13:20] Speaker 04:
The appeal was on the size of the rating, right?

[00:13:24] Speaker 04:
The request was, I should get more than 60%.

[00:13:27] Speaker 01:
Well, no, actually it was initial 10%.

[00:13:30] Speaker 01:
from 2003 to 2007.

[00:13:31] Speaker 04:
But the appeal was, I want more than 60 after 2007.

[00:13:38] Speaker 01:
No, it was both pieces, Your Honor.

[00:13:41] Speaker 01:
It was the initial rating of 10 from 2003 to 2007, and then more than 60.

[00:13:47] Speaker 01:
This case, this remand, is only about that 14-month period that is in the 10% column now and not in the 60% column.

[00:13:57] Speaker 01:
This does not deal with a rating in excess of 60.

[00:14:00] Speaker 04:
All right.

[00:14:01] Speaker 04:
But the appeal talked about the scope of the rating.

[00:14:07] Speaker 04:
So you're saying, but there was never an argument that this was an effective date issue, right?

[00:14:13] Speaker 01:
No.

[00:14:13] Speaker 01:
What I'm saying is that it is not what was presented to the board was not an effective date question.

[00:14:20] Speaker 01:
It was an initial rating question.

[00:14:22] Speaker 01:
What the rating should have been

[00:14:24] Speaker 01:
in the continuum from 2003 to 2007.

[00:14:29] Speaker 01:
And there is a 14-month period within that time frame that the facts should have been considered, which was what was decided by the Veterans Court, and was sent back for further proceedings for the board to consider that factual question.

[00:14:47] Speaker 03:
So to be clear, your position is it doesn't matter if the veteran ultimately does not prevail.

[00:14:54] Speaker 03:
Yes.

[00:14:55] Speaker 01:
Yes.

[00:14:55] Speaker 03:
OK.

[00:14:56] Speaker 03:
That's what I wanted to understand.

[00:14:58] Speaker 01:
Thank you.

[00:14:59] Speaker 03:
OK.

[00:15:06] Speaker 03:
Mr. Woodley?

[00:15:07] Speaker 03:
Good morning.

[00:15:08] Speaker 03:
Is that your understanding of the statute that says prevailing party, that you don't have to be the prevailing party?

[00:15:14] Speaker 00:
After the remand, Your Honor?

[00:15:18] Speaker 00:
Is that what you're asking?

[00:15:20] Speaker 00:
Yes.

[00:15:21] Speaker 00:
No, I think it's in this type of situation, Your Honor,

[00:15:25] Speaker 00:
The determination is made prior to that.

[00:15:27] Speaker 00:
There has to be administrative error.

[00:15:29] Speaker 00:
And that's what's lacking in this case.

[00:15:31] Speaker 00:
That's the problem.

[00:15:32] Speaker 04:
OK.

[00:15:32] Speaker 04:
So why wasn't there administrative error when they chose to differentiate between the 10% rating and the 60% rating if they didn't actually consider all the facts, which included the 14-month delay?

[00:15:46] Speaker 00:
Yes, Your Honor.

[00:15:47] Speaker 00:
There was not administrative error.

[00:15:48] Speaker 00:
And the reason there wasn't is, again, this was an issue, as the court asked.

[00:15:53] Speaker 00:
first raised on appeal.

[00:15:54] Speaker 00:
It's an issue that wasn't addressed at the board.

[00:15:57] Speaker 00:
It's facts that were not developed at the board.

[00:16:00] Speaker 04:
Should the board have raised this on their own?

[00:16:01] Speaker 04:
Right, because the board was supposed to pick a date, right?

[00:16:04] Speaker 04:
And if the board didn't look at all the facts and circumstances in picking their date, isn't that just an error on its face?

[00:16:13] Speaker 00:
It could be, Your Honor, but in this case, they did look at all the facts.

[00:16:17] Speaker 00:
The first time that there was medical evidence, medical records and tests demonstrating the increase in the disability was April 2nd, 2007.

[00:16:24] Speaker 00:
That's the date that they established the increase rate.

[00:16:28] Speaker 04:
That's when the tests came back, right?

[00:16:32] Speaker 00:
Yes, Your Honor.

[00:16:33] Speaker 00:
The earlier dates that appellants asked and were arguing should have been considered in February 2006 and November 2006,

[00:16:40] Speaker 00:
Tests were ordered, but no tests were conducted.

[00:16:42] Speaker 00:
There was no medical evidence for the board to rely on in making that determination that the rating should be increased from 10% to 60%.

[00:16:49] Speaker 00:
So the first time that there was actual evidence to establish the 60% increase rating was April 2, 2007.

[00:16:55] Speaker 02:
The veteran just saying that once you got that actual evidence, you should have gone back and considered the time that the earlier date.

[00:17:05] Speaker 02:
And that the phaser could do that was scary.

[00:17:08] Speaker 00:
Yes, Your Honor.

[00:17:09] Speaker 00:
And actually, this will address the question that was asked earlier.

[00:17:12] Speaker 00:
On remand, it has been determined that the vet did not prevail.

[00:17:16] Speaker 00:
And that was affirmed actually on March 20, 2017 by the Veterans Court.

[00:17:21] Speaker 00:
At that time, there was no evidence in the record other than the two referrals.

[00:17:27] Speaker 02:
So three weeks ago, the VA made this decision?

[00:17:33] Speaker 00:
Two weeks ago, the Veterans Court affirmed the decision by the board.

[00:17:39] Speaker 04:
But again, you've conceded that that's not really relevant.

[00:17:43] Speaker 00:
No.

[00:17:43] Speaker 00:
The issue is, at the time that the remand occurred, was there administrative error by the agency?

[00:17:49] Speaker 00:
And it's important to note that the cases that are cited by appellant, there's a key issue that's absent here.

[00:17:56] Speaker 00:
And that's that the agency in both of those cases, Dover and Motorola, conceded error.

[00:18:01] Speaker 00:
That never happened here.

[00:18:02] Speaker 02:
Has the veteran been notified of that decision?

[00:18:05] Speaker 00:
I don't know, Your Honor.

[00:18:07] Speaker 00:
Have you told counsel about that decision?

[00:18:09] Speaker 00:
I have the information from Agents Counsel this morning, Your Honor.

[00:18:13] Speaker 00:
I mean, we were not told either.

[00:18:21] Speaker 02:
That seems highly suspect to me that you decide this case right at the eve of these oral arguments.

[00:18:31] Speaker 02:
But anyway, go on.

[00:18:32] Speaker 00:
Yes, Your Honor.

[00:18:36] Speaker 00:
The crux of the case, as I pointed out, is whether or not there was administrative error, whether the remand was necessitated by that error.

[00:18:43] Speaker 00:
And in this case, there was no concession by the agency, and the Veterans Court explicitly, in its remand order, indicated that it was not based on administrative error.

[00:18:54] Speaker 00:
This court has recognized a default rule in these types of cases.

[00:18:58] Speaker 00:
Under Thompson v. Shinesky,

[00:19:00] Speaker 00:
where there has been a remand to an administrative agency without a judicial finding of administrative error or a concession of error by the agency, the default rule is that the remand is not based on administrative error for each of purposes.

[00:19:15] Speaker 02:
Did you just say you found out this morning about the agency decision?

[00:19:18] Speaker 00:
I actually asked my co-counsel whether that was accurate as far as the decision had been rendered or not.

[00:19:25] Speaker 00:
So you found out this morning?

[00:19:27] Speaker 00:
He had a copy of the decision.

[00:19:29] Speaker 02:
Can you afterwards submit a letter that describes service of process on or whether you've informed the veteran and whether you informed the veterans counselor?

[00:19:43] Speaker 02:
Yes, Your Honor.

[00:19:44] Speaker 02:
Of that decision?

[00:19:45] Speaker 02:
Yes, Your Honor.

[00:19:45] Speaker 02:
The nature of the decision and when?

[00:19:48] Speaker 02:
Yeah, along with a copy of the decision.

[00:19:50] Speaker 02:
Yes, Your Honor.

[00:19:51] Speaker 03:
Yes, and if there's any need for a response as well a few days thereafter?

[00:19:59] Speaker 03:
Mr. Carpenter.

[00:20:01] Speaker 00:
Yes, Your Honor.

[00:20:08] Speaker 00:
Now again, Your Honor, the Veterans Court explicitly stated in its remand that the decision was not predicated on administrative error and cited the Magic case and recognized that it was a newly raised issue on appeal.

[00:20:23] Speaker 00:
The court could have at that point determined to apply the doctrine of issue exhaustion and just not consider the issue at all.

[00:20:30] Speaker 00:
And instead, and I think this goes counter to what Collins is arguing, that there had to have been an error here, essentially gave the veteran the benefit of the doubt and sent it back to have those facts developed so that proper determination could be made.

[00:20:42] Speaker 00:
And that was entirely within the veteran's court discretion to make that determination remanded for further consideration of that newly raised argument.

[00:20:51] Speaker 00:
As we argued previously, there was not that documentation in the records indicating what had happened at those February 2006, November 2006 appointments in the referral to the specialists.

[00:21:04] Speaker 00:
What, if anything, caused any delays, whether it was the veteran not making appointments or it was the VA not getting the veteran in to be seen.

[00:21:11] Speaker 00:
The records simply didn't have the evidence for the court to look at that.

[00:21:17] Speaker 00:
Those two, the two key cases, again, that the appellant cites, the Motorola case and the Dover case, the key issue is what's not present here, and that's a concession by the agency that there was error, where there was concessions in both those cases, the Motorola and Dover cases.

[00:21:33] Speaker 00:
I would urge this court to follow its precedent in Davis v. Nicholson.

[00:21:38] Speaker 00:
In that case, there was a total disability claim that was denied because the veteran was not precluded from having gainful employment.

[00:21:45] Speaker 00:
So the Veterans Court vacated that decision and remanded to consider a different regulation, which is similar to what Colin's arguing in this case.

[00:21:53] Speaker 00:
In that decision, Egypt was denied because there was no judicial finding of administrative error.

[00:21:58] Speaker 00:
Rather, the Veterans Court remanded for additional fact determination, which is the same fact pattern as we have here.

[00:22:04] Speaker 00:
Also, under that Davis case, the argument of altering the legal relationship of the parties, I think it's important again for the court to look at its precedent there.

[00:22:12] Speaker 00:
where, again, similar fact pattern, this court explicitly found the remand merely afforded Davis an opportunity to litigate again and in no way materially altered his legal relationship with the VA as did the claim benefits.

[00:22:24] Speaker 00:
And again, that's the same situation you have here.

[00:22:25] Speaker 00:
Basically, Mr. Roberts was put back to have a chance to relitigate these new issues that were raised in appeal.

[00:22:32] Speaker 00:
It didn't change his legal relationship.

[00:22:33] Speaker 00:
It merely gave him another opportunity to litigate and raise those arguments.

[00:22:39] Speaker 00:
In conclusion, there was no judicial finding of administrative error or any kind of concession of error by the agency.

[00:22:45] Speaker 00:
And this court should apply the Thompson default rule that the remand was not based on administrative error for each of purposes and affirm the veteran's court decision to deny the appellant's each application.

[00:22:56] Speaker 00:
I'm going to be happy to answer any other questions.

[00:22:59] Speaker 03:
Thank you.

[00:23:00] Speaker 03:
Thank you, Mr. Woodward.

[00:23:01] Speaker 03:
Mr. Carpenter, three minutes.

[00:23:11] Speaker 01:
I'd like to quote from this court's decision in Motorola.

[00:23:17] Speaker 01:
This court said that when there is a remand to the agency which the remand grants relief on the merits sought by the plaintiff, and the trial court does not retain jurisdiction, securing the remand order itself is success on the merit.

[00:23:34] Speaker 01:
That qualifies under Motorola for prevailing party status.

[00:23:38] Speaker 01:
The insinuation of administrative error into the IJA equation was done by the Veterans Court.

[00:23:47] Speaker 01:
And this court has affirmed that piece.

[00:23:51] Speaker 01:
But this court has also adopted the analysis of prevailing party that flows from Motorola and extended this court's holding in Motorola to Veterans cases in Halpern and then most recently adopted again in Dover.

[00:24:07] Speaker 01:
And so the question really becomes

[00:24:09] Speaker 01:
Is administrative error a preclusionary requirement?

[00:24:15] Speaker 01:
Do you have to have those magic words?

[00:24:18] Speaker 01:
Or are you working and making the analysis?

[00:24:21] Speaker 01:
And the analysis in Motorola that this court made was based upon two Supreme Court decisions in Schaeffer and in Sullivan that talked about the question of whether or not a remand itself

[00:24:36] Speaker 01:
constitutes some relief on the merits in order to qualify for prevailing party status.

[00:24:42] Speaker 01:
We believe that this court's decision in Motorola does not require administrative error, or if it does, that the administrative error can be inferred.

[00:24:53] Speaker 01:
In this court's decision in Motorola, this court said, where the plaintiff secures the remand requiring further agency proceedings because

[00:25:04] Speaker 01:
of alleged error by the agency.

[00:25:08] Speaker 01:
Not error found by the court, but alleged error by the agency.

[00:25:14] Speaker 01:
That allegation of error was made in the issue that was presented for the first time before the Veterans Court.

[00:25:20] Speaker 01:
And therefore, Mr. Robinson should have been considered, under this court's precedent, a prevailing party.

[00:25:26] Speaker 01:
That's it for the questions.

[00:25:27] Speaker 01:
Thank you very much.

[00:25:30] Speaker 01:
Thank you.

[00:25:30] Speaker 03:
Thank you both.

[00:25:31] Speaker 03:
The case is taken under submission.