[00:00:22] Speaker 02:
Mr. Carpenter.

[00:00:24] Speaker 02:
May it please the Court, Count Carpenter, appearing on behalf of Mr. Leslie Washington.

[00:00:29] Speaker 02:
Mr. Washington made a joint request, along with myself, for review of an amended fee agreement between Mr. Washington and myself concerning the terms of representation, particularly in relationship to the question of offset.

[00:00:45] Speaker 02:
This request for review below presented the issue of the continuing validity of the Invant decision in Carpenter versus Principi.

[00:00:53] Speaker 02:
This court has the authority to review a decision of the Veterans Court that rejects a party's statutory argument without discussion.

[00:01:02] Speaker 02:
That is precisely what happened in this case.

[00:01:05] Speaker 02:
The court reached the conclusion, this court, excuse me, reached that conclusion in Linville.

[00:01:11] Speaker 02:
finding that a decision is no less legal in nature than a holding that would reject such an argument following a detailed analysis.

[00:01:21] Speaker 02:
There was no analysis in this case because the inbound court below decided not to provide one.

[00:01:27] Speaker 02:
They simply denied the motion.

[00:01:29] Speaker 04:
Right.

[00:01:29] Speaker 04:
And the single judge didn't seek to resolve this, and the issue, in fact,

[00:01:36] Speaker 04:
wasn't really right at this point, was it?

[00:01:39] Speaker 04:
Because you hadn't incurred the fees yet.

[00:01:41] Speaker 04:
I mean, you're not losing this case and the ability to challenge this forever.

[00:01:47] Speaker 02:
Well, I believe I am, Your Honor.

[00:01:48] Speaker 02:
You are?

[00:01:49] Speaker 02:
Because the way in which this rule works is if the EGRA fees are paid and there is an EGRA application pending, which is stayed pending the outcome of this decision, those fees are required by this rule to be offset

[00:02:06] Speaker 02:
If and when there is an award of past due benefits to Mr. Washington.

[00:02:11] Speaker 02:
If Mr. Washington is awarded past due benefits, then those thieves are required by this rule to be offset.

[00:02:18] Speaker 02:
And you challenge the offset and you get review of the rule.

[00:02:21] Speaker 02:
There's nowhere to challenge the offset, Your Honor.

[00:02:24] Speaker 02:
The offset is controlled by this rule.

[00:02:27] Speaker 02:
This rule requires attorneys appearing before the Veterans Court to follow this rule.

[00:02:34] Speaker 02:
and to self-impose the obligation to offset.

[00:02:39] Speaker 02:
Now, the VA has, in other circumstances, in withholding contracts, actually gone ahead and made the offset.

[00:02:46] Speaker 02:
The fee in this case is a non-withholding fee agreement.

[00:02:49] Speaker 02:
So there is no place for the VA to enter into this process in order to make a decision on the offset.

[00:02:56] Speaker 02:
I cannot go back to the Veterans Court in the Washington case because the Washington case will be closed.

[00:03:02] Speaker 02:
which is precisely why we asked to have the fee agreement reviewed to determine whether or not there is or is not validity.

[00:03:10] Speaker 04:
But to decide this issue now is almost an advisory opinion, because we don't know if you're going to get that.

[00:03:15] Speaker 04:
You're assuming that there is going to be an offset, and your argument is that you won't be able to review it at the time.

[00:03:23] Speaker 04:
But we don't know if there's ever going to be an offset, because we don't know if you're going to earn the fees on the other end, right?

[00:03:31] Speaker 02:
your statement is correct, your conclusion is mistaken.

[00:03:34] Speaker 02:
The conclusion is mistaken because the rule obligates an offset.

[00:03:40] Speaker 02:
This fee agreement as presented confronts that rule directly and enters into a fee agreement that says that I will not offset that fee.

[00:03:52] Speaker 02:
That is subject to a final decision pending the review of that fee agreement.

[00:03:59] Speaker 02:
Congress provided for a specific mechanism for the review of fee agreements, and the review of fee agreements is authorized by statute to be conducted by the Veterans Court.

[00:04:10] Speaker 02:
That's what the Veterans Court did in Carpenter v. Principi, and that's what the Veterans Court refused to do in this case.

[00:04:17] Speaker 00:
Mr. Carpenter, how about 7863D, the last sentence of which states that in order of the court, presumably Court of Veterans Appeals,

[00:04:27] Speaker 00:
under this subsection is final and may not be reviewed in any other court.

[00:04:32] Speaker 02:
How does that relate to what we... That does not relate, Your Honor, because that provision applies to the amount of the award of attorney fees.

[00:04:42] Speaker 02:
It does not deal with the question that's presented in this case, which is a question of offset.

[00:04:49] Speaker 02:
Offset is a concept that was created by a rule of law based upon an interpretation by the Veterans Court of both the IJA statute

[00:04:57] Speaker 02:
and 5904, which requires an offset for fees earned before the court and before the VA.

[00:05:07] Speaker 02:
But the question of offset wasn't decided below.

[00:05:11] Speaker 02:
But it was, Your Honor, by the rule.

[00:05:13] Speaker 02:
And it is the rule that controls the outcome and binds every attorney ethically.

[00:05:19] Speaker 02:
And if I violate that rule without a finding that the rule is invalid,

[00:05:26] Speaker 02:
then I am subject to sanction by the VA and potential loss of my accreditation.

[00:05:34] Speaker 00:
Aren't we reviewing an order of the full court that said a motion for decision in a case decided only by a single judge is not permitted?

[00:05:45] Speaker 00:
Isn't that what's before us?

[00:05:50] Speaker 02:
The motion that was made was for review by the full court of its decision

[00:05:56] Speaker 02:
in Carpenter, the full court declined subsilentio from addressing that.

[00:06:05] Speaker 02:
You are correct that that's what they decided to do and that was the grounds that they offered.

[00:06:10] Speaker 02:
But they specifically did not reach the question that was presented to them in the motion for review of the fee agreement.

[00:06:18] Speaker 02:
The fee agreement that was amended specifically contradicts that rule.

[00:06:24] Speaker 02:
And Mr. Washington and myself were entitled to a review of that by the plain language of the statute that permits review of fee agreements by the Veterans Court.

[00:06:37] Speaker 02:
They elected not to, and by default, resorted to their ruling in Carpenter.

[00:06:44] Speaker 04:
So what relief are you seeking here?

[00:06:48] Speaker 02:
A determination by this court that the rule of law established in Carpenter

[00:06:53] Speaker 02:
that work performed before the Veterans Court and work performed before the VA is the same work is invalid.

[00:07:02] Speaker 04:
What about sending it back to them and telling them to look at it in the first instance, right?

[00:07:08] Speaker 02:
Well, certainly I believe you have the discretion to do that, Your Honor, but I'm not sure that that

[00:07:15] Speaker 02:
is the most expeditious way to resolve this issue.

[00:07:19] Speaker 02:
But if this panel determines that that's the appropriate way to handle this, then clearly I'll go back and we'll argue it before the full court there.

[00:07:30] Speaker 02:
I mean, this is a pure question of law about whether or not a rule of law that has been created by the Veterans Court that the work performed before the Veterans Court and compensated under the Aegis Statute

[00:07:44] Speaker 02:
can possibly be, as a matter of law, the same work as performed under 38 USC 5904D.

[00:07:53] Speaker 02:
Those are not the same work.

[00:07:55] Speaker 02:
There are two Fifth Circuit cases that deal with this in the parallel universe of Social Security work, in which two Fifth Circuit decisions clearly state that offset of court work versus work before the administration is simply not the same work.

[00:08:14] Speaker 00:
But they have a different statute.

[00:08:17] Speaker 02:
They have a different statute, Your Honor, but they have precisely the same circumstances.

[00:08:21] Speaker 02:
And those circumstances are that there is a statutory provision for compensation for work performed before the agency.

[00:08:29] Speaker 02:
There is a comparable statute here in 5904D.

[00:08:32] Speaker 02:
And the significance of what has occurred since this case was decided by the Veterans Court is that in 2006, Congress amended that statute and made crystal clear

[00:08:44] Speaker 02:
that the work performed before the agency is all that is covered by 5904.

[00:08:49] Speaker 02:
And if that's all that's covered by 5904, there is no statutory authority for the Veterans Court to allow a fee for work performed before the agency.

[00:09:01] Speaker 02:
Only the agency makes that decision.

[00:09:04] Speaker 02:
Just as only the court makes the decision for the work performed before the court, and potentially this court, in matters of

[00:09:12] Speaker 02:
in the nature of a civil action and appeal, which is the subject matter of an IJA application.

[00:09:19] Speaker 02:
Those are two entirely different things legally.

[00:09:23] Speaker 02:
And therefore, this court should recognize that the rule created in Carpenter v. Principality is no longer viable based upon the change in law that when Congress amended 5904 to make clear,

[00:09:39] Speaker 02:
When Congress originally created this statute with the Veterans Judicial Review Act, there was in fact some ambiguity because the trigger for representation was a first final decision of the board.

[00:09:54] Speaker 02:
At that point, you only could go to court or go back and reopen with new and material evidence.

[00:10:00] Speaker 02:
So in fairness to the inbox decision in Carpenter, there was ambiguity.

[00:10:05] Speaker 02:
That ambiguity has now been removed

[00:10:07] Speaker 02:
by the language that Congress provided for in 5904 C-5.

[00:10:14] Speaker 02:
And in that provision, they make clear that the attorney fees that are being paid are for services provided before the department, which includes the board.

[00:10:25] Speaker 02:
It does not mention the court.

[00:10:27] Speaker 02:
There is no separate statutory authority for the court to award attorney fees.

[00:10:33] Speaker 02:
On those grounds, this rule is invalid

[00:10:35] Speaker 02:
and should be set aside by this court, and the Veterans Court should be directed to longer comply with that rule.

[00:10:43] Speaker 02:
I'll reserve the balance of my time.

[00:10:44] Speaker 02:
Thank you.

[00:10:48] Speaker 03:
Good morning.

[00:10:49] Speaker 03:
May it please the Court, this Court lacks jurisdiction to entertain Mr. Washington's arguments.

[00:10:53] Speaker 04:
Is there a way that he, is he just barred from ever getting a view of the argument he's making with regard to challenging the earlier Veterans Court among decision?

[00:11:03] Speaker 03:
Your Honor, I would say no in the sense that there could conceivably be a situation in which the carpenter offsetting issue that he is raising could come before this court.

[00:11:12] Speaker 03:
However, it would have to be in a circumstance that would not be covered by 7263D.

[00:11:16] Speaker 03:
7263D is the statute the judge lawyer referenced that says that the Veterans Court, when it makes a determination as to the reasonableness or excessiveness of a fee, that decision is final and not reviewable.

[00:11:30] Speaker 03:
And those are the facts of the carpenter case.

[00:11:32] Speaker 03:
I would emphasize as well that the Federal Circuit in the Carpenter case in 2003 recognized that 7263D prohibited it from reviewing the case.

[00:11:42] Speaker 03:
So under those facts, it would be difficult for the Carpenter case to come before this court.

[00:11:47] Speaker 03:
But certainly on the facts of this case, the issue is not before you.

[00:11:51] Speaker 03:
And really what Mr. Washington is asking you to do is to sit as a court of first instance on this one.

[00:11:55] Speaker 01:
What kind of, he says that he can't get any review

[00:12:01] Speaker 01:
in the Veterans Court.

[00:12:02] Speaker 01:
Is that correct?

[00:12:03] Speaker 01:
Because I was looking at the, I guess it was the original single-judge order.

[00:12:08] Speaker 01:
It says, the court declines.

[00:12:11] Speaker 01:
This is at Act 57.

[00:12:12] Speaker 01:
It says, the court declines to exercise its discretion to review Mr. Washington's amended free fee agreement at this time.

[00:12:22] Speaker 01:
That suggests there would be a time when it could be reviewed.

[00:12:26] Speaker 01:
And there could be, Your Honor.

[00:12:28] Speaker 01:
Certainly.

[00:12:28] Speaker 01:
But Mr. Carpenter seems to be saying,

[00:12:31] Speaker 01:
I'm never going to be able to have this issue considered by the full Veterans Court.

[00:12:37] Speaker 03:
Well, I would agree with Mr. Carpenter insofar as procedurally where we are in the Veterans Court is that there had been a remand back to the board for further adjudication, and that is underway.

[00:12:49] Speaker 03:
There is also a motion for EJA fees, which is pending, and that matter has been stayed before the Veterans Court.

[00:12:54] Speaker 03:
In the context of the briefing of the EJA issue, and that is in the record in the appendix before this court,

[00:13:00] Speaker 03:
there is an issue about the carpenter question that is pending before the Veterans Court.

[00:13:05] Speaker 03:
So the Veterans Court very well could reach it in the context of reviewing the EJA fee application.

[00:13:09] Speaker 01:
How would that happen?

[00:13:10] Speaker 03:
Well, if the stay were lifted following this appeal, the Veterans Court would procedurally, it would revisit the application for EJA fees and consider the briefing that's pending before it on the carpenter question.

[00:13:23] Speaker 03:
But I want to emphasize as well that there's also a separate statutory mechanism for reviewing of these fee agreements.

[00:13:29] Speaker 03:
7263C is the provision that relates to the Veterans Court's review of fee agreements.

[00:13:35] Speaker 03:
But there's also 5904C3A, which relates to the review of fee agreements before the VA.

[00:13:43] Speaker 03:
And so the system that's been set up allows a veteran party to ask the VA, in the first instance, to review a fee agreement.

[00:13:50] Speaker 03:
That avenue has not been foreclosed.

[00:13:53] Speaker 03:
So for example, in this case, on a remand before the board, it's not too late for Mr. Washington to ask the secretary, in this case it would be the Office of General Counsel, the VA that has the authority to do it under the regulations, to review the fee agreement.

[00:14:07] Speaker 03:
So the issue could then be reviewed.

[00:14:08] Speaker 04:
And is that reviewable then?

[00:14:10] Speaker 03:
And that is then reviewable to the board and then up to the Veterans Court if possible.

[00:14:15] Speaker 01:
But I do want to just get back to the... So in other words, what you're saying, because this seems to be the important issue here, say the board

[00:14:22] Speaker 01:
I'm sorry, say the VA says, no, Carpenter, the in-bank decision controls, and then Mr. Carpenter takes that negative determination to the board, okay, and the board goes the same way.

[00:14:41] Speaker 01:
You're saying that he could then appeal from that decision to the Veterans Court.

[00:14:47] Speaker 01:
Correct.

[00:14:49] Speaker 01:
The Veterans Court would have your...

[00:14:51] Speaker 01:
wasn't given here, namely, apply for an in-bank review of that.

[00:14:55] Speaker 03:
Well, he may well end up in the same situation that he was in before, in that he was asking the Veterans Court to review the fee agreement.

[00:15:01] Speaker 03:
But I want to emphasize that the Veterans Court under 7263C has discretion as to whether or not to review the fee agreement.

[00:15:08] Speaker 03:
So what you have before you on this case is a decision in which the single judge determined in his discretion not to review the fee agreement, quote, at this time.

[00:15:17] Speaker 03:
And so that, as we note in our brief, is really

[00:15:20] Speaker 03:
The only issue that you might review here would be whether or not that's an abuse of discretion.

[00:15:25] Speaker 03:
And within the confines of 7292, which is obviously very limited.

[00:15:29] Speaker 03:
And then you have, obviously, the en banc decision by the court to decide not to give full court consideration of the issue.

[00:15:36] Speaker 03:
So I do want to emphasize, again, and counsel referred to the Linville case, and that there is somehow an implicit subsilentio rejection of the argument that he made below.

[00:15:46] Speaker 03:
But that's really not the case here.

[00:15:48] Speaker 03:
The Linville decision stands for the proposition merely that

[00:15:51] Speaker 03:
where the Veterans Court is confronted with a number of arguments, and it rejects them without addressing them expressly in its decision, that those nevertheless are arguments are reviewable here.

[00:16:05] Speaker 03:
But that's not what occurred here, because the Veterans Court did not reach the question that he's raising here today regarding the offsetting of the fees.

[00:16:12] Speaker 03:
And in addition, the rule of law jurisdiction is not implicated because there is no decision on a rule of law regarding offsetting that this court could review.

[00:16:22] Speaker 03:
So in essence, what you have is a system that this is really sort of an end run around the system that really would give the VA in the first instance and the Veterans Court in the second instance the province to review these fee agreements.

[00:16:36] Speaker 03:
And so as we also noted in our brief, there are prudential concerns that even if the court were to find that it has jurisdiction,

[00:16:43] Speaker 03:
As in the Morgan case, it would be appropriate for the court to decline to reach these issues for prudential reasons.

[00:16:50] Speaker 03:
And as this court noted in Forshee, when you have a decision that is not presented or addressed below, that prudential reasons make it appropriate not to consider it.

[00:16:58] Speaker 03:
In the Morgan case, it was a statute of limitations issue.

[00:17:01] Speaker 03:
And in this case, it would be this very important question of offsetting, of Egypt fees.

[00:17:05] Speaker 03:
And the Veterans Court carefully considered that question.

[00:17:09] Speaker 04:
Yeah, but the alternative to that is to send it back to them and tell them to do it in the first place.

[00:17:13] Speaker 03:
Well, Your Honor, my response to that question would be that the court would really need to find some error.

[00:17:18] Speaker 03:
Under 7292, what the statute contemplates is when you're reviewing the Veterans Court's decision, you're looking for whether it's arbitrary, capricious, and there's abusive discretion, et cetera.

[00:17:28] Speaker 03:
And under that scenario, it would be appropriate to remand.

[00:17:32] Speaker 03:
Under these facts, there would be no basis to remand simply because there's an interesting question that's been raised before this court in an abstract sense.

[00:17:41] Speaker 03:
And particularly when you have

[00:17:43] Speaker 03:
another mechanism, whether it's in this case or another case before the Veterans Court that could actually raise this issue and put it before the Veterans Court.

[00:17:51] Speaker 03:
I do want to emphasize as well that the Veterans Court, as we noted in our brief, has repeatedly reaffirmed the validity of the carpenter holding.

[00:17:59] Speaker 03:
And we cited two cases.

[00:18:01] Speaker 03:
There were Mason and Jackson.

[00:18:03] Speaker 03:
One was in 2006, and one was in 2009.

[00:18:05] Speaker 03:
I mentioned the timing of the latter one because it occurred after the congressional amendments that

[00:18:11] Speaker 03:
Mr. Washington is right.

[00:18:12] Speaker 04:
And after the Fifth Circuit cases that he's relying on, how do you separate those?

[00:18:17] Speaker 03:
The Fifth Circuit cases were from 2010, Your Honor.

[00:18:20] Speaker 03:
The 2009 decision was before those changes.

[00:18:24] Speaker 03:
But there is another case.

[00:18:26] Speaker 03:
The name is not at my fingertips, but the Veterans Court has its unpublished decision in 2013, I believe, where it again referred to Carpenter in this offsetting rule and recognized its validity.

[00:18:36] Speaker 03:
And at no time in those cases did this court consider that these fifth circuit cases having to do with a completely different statutory scheme, somehow called into question the validity of the holding.

[00:18:46] Speaker 04:
Well, I'm not clear.

[00:18:47] Speaker 04:
In those other cases, was the issue raised?

[00:18:50] Speaker 04:
Did they address it and say, no, we reject those arguments, there's no change?

[00:18:55] Speaker 04:
Or did they just...

[00:18:57] Speaker 04:
adopted the existing rule.

[00:19:00] Speaker 03:
They adopted the existing rule.

[00:19:01] Speaker 03:
So I'm not aware.

[00:19:02] Speaker 04:
Analysis.

[00:19:03] Speaker 04:
We don't know that they considered the argument.

[00:19:05] Speaker 03:
We don't know whether they considered the argument.

[00:19:07] Speaker 03:
And in that regard, I would just go back to my initial point, which is, again, to the extent that these issues about the 26 amendments, about these Social Security Act cases, to the extent they call into question anything to do with a carpenter rule, it would really be for the Veterans Court to determine that in the first instance.

[00:19:24] Speaker 01:
Let me ask you a question.

[00:19:27] Speaker 01:
The alternative course that you were talking about prevails, and Mr. Carpenter goes up, asks for in-bank review again by the Veterans Court, and this time the Veterans Court grants it.

[00:19:41] Speaker 01:
And one of two things will happen.

[00:19:43] Speaker 01:
The Veterans Court might rule in his favor, in other words change the Carpenter rule, and we wouldn't see him.

[00:19:49] Speaker 01:
He'd be happy about that.

[00:19:50] Speaker 01:
But what if the Veterans Court stood by

[00:19:55] Speaker 01:
the original carpenter decision and said, we stand by it, et cetera, it's good law.

[00:20:00] Speaker 01:
Would you be arguing we could not review that because of 7263D?

[00:20:03] Speaker 03:
7263D, correct, yes.

[00:20:08] Speaker 01:
In other words, if this goes back and the Veterans Court decides it and the Veterans Court stands by its present in-bank decision, doesn't revisit it,

[00:20:20] Speaker 01:
it would be the government's position, the secretary's position, that we could not review that new in-bank decision.

[00:20:27] Speaker 01:
Is that correct?

[00:20:27] Speaker 03:
Your Honor, I suspect that would be the case.

[00:20:29] Speaker 03:
But what I would submit is the 7263D says, and this is Congress's determination, it does not want these determinations by the Veterans Court to be reviewable.

[00:20:38] Speaker 03:
They are to be final.

[00:20:40] Speaker 03:
This offsetting question is not separate and distinct from reviewing an underlying fee agreement.

[00:20:45] Speaker 03:
And in this case, for example, in order to really consider this carpenter question,

[00:20:49] Speaker 03:
You have to look at the fee agreement, you have to look at the language, you have to consider whether or not it really is intention with a carpenter decision.

[00:20:56] Speaker 03:
So the Veterans Court would have to do that in this particular case, look at the language and consider it.

[00:21:01] Speaker 03:
That would be an application of 7263C, which then would not be reviewable.

[00:21:06] Speaker 03:
Now, as I said in the very opening question, there could be a scenario in which the Veterans Court opines about something about carpenter that theoretically could come with this court's jurisdiction.

[00:21:18] Speaker 03:
and under 72.92, which is obviously limited to legal issues that are raised below.

[00:21:24] Speaker 03:
But as long as it's determining the reasonableness or excessiveness of the fee, I can't imagine a situation.

[00:21:30] Speaker 04:
So we know what we're talking about here.

[00:21:32] Speaker 04:
We're talking about his arguments that the Fifth Circuit law changes it, that the statute changes it.

[00:21:37] Speaker 04:
So tell me about those arguments.

[00:21:39] Speaker 04:
Are those the kinds of arguments that we could or could not entertain?

[00:21:43] Speaker 04:
if we had a Veterans Court among opinion as Judge Shaw suggested that reinforced the existing rule?

[00:21:49] Speaker 03:
Well, to the extent that those arguments would be made to support an argument that the decision in Carpenter 2001 is no longer valid, and that is the argument he's pressing, that would still not be reviewable to the extent that

[00:22:03] Speaker 03:
It is reviewing the reasonableness or excessiveness of the fee.

[00:22:07] Speaker 03:
And I would go back to this court's decision.

[00:22:09] Speaker 03:
Really, the most important source of authority on this question that we're discussing is this court's decision in 2003 in the Carpenter case.

[00:22:16] Speaker 03:
Because the argument that arose in Carpenter is very similar.

[00:22:19] Speaker 03:
Obviously, we didn't have these Social Security Act cases and the like at the time.

[00:22:23] Speaker 03:
But the argument was very similar.

[00:22:25] Speaker 03:
You had a fee agreement that did not provide for offsetting.

[00:22:29] Speaker 03:
It went through the board, unlike this case, and went up to the Veterans Court and was reviewed.

[00:22:33] Speaker 03:
And the Veterans Court found that on the basis of the Aegis statute and on the purpose of the provision of the Aegis statute that allowed for offsetting for the same work, that it was inappropriate to have, in essence, the attorney be compensated twice.

[00:22:47] Speaker 03:
So I suspect that the Veterans Court, if we were to essentially repeat what it did back in 2001, but only examine these Social Security Act cases and the changes to 5904, we may well be back in the same place with controlling precedent of this court saying,

[00:23:03] Speaker 03:
there is no jurisdiction to review.

[00:23:05] Speaker 01:
So you can't obviously say exactly what will or will not happen, but what you're suggesting and telling us, if it goes back to the Veterans Court and the Veterans Court stands by its decision and Mr. Carpenter seeks to appeal here, we may well be confronted with an argument by the Secretary that we lack jurisdiction and we'd have to

[00:23:25] Speaker 03:
address it at that time that's correct your honor and i i i think i would just go back with congress intended insisting in wanting the v a veterans work the arbiters if you will be speed agreements and whether or not they're reasonable and there's nothing surprising that i do want to address briefly uh... a couple of the other arguments that mister carpenter mentioned which is one i think he suggested that there was some sort of entitlement to review of the fee agreement for the veterans court now in the opening brief

[00:23:54] Speaker 03:
That did appear to be an argument that he was raising.

[00:23:57] Speaker 03:
It was not raised before the Veterans Court.

[00:23:59] Speaker 03:
In our brief, as we pointed out, 7263C uses the word may.

[00:24:04] Speaker 03:
It's a discretionary statute.

[00:24:05] Speaker 03:
There is no right to obtain the review.

[00:24:07] Speaker 03:
So I just want to be clear to the extent that that argument is still being raised, we would submit it is not supported by the statute.

[00:24:14] Speaker 01:
I just want to make sure I understand.

[00:24:16] Speaker 01:
The provision that you sort of referred to earlier is 5904

[00:24:23] Speaker 01:
Make sure I get all the numbers here.

[00:24:24] Speaker 01:
C3A.

[00:24:28] Speaker 01:
That would be the one that says the secretary may upon the secretary's own motion, or at the request of the claimant, review a fee agreement filed pursuant to paragraph 2.

[00:24:41] Speaker 01:
And you're saying to us that that is the route that remains open to Mr. Carpenter at this time.

[00:24:52] Speaker 01:
with respect to his new fee agreement.

[00:24:56] Speaker 01:
Correct, Your Honor.

[00:24:57] Speaker 01:
He could go.

[00:24:57] Speaker 01:
You're saying he can go to the VA and say, review it.

[00:25:02] Speaker 01:
And then after that, he can go to the board and try again to go to the full Veterans Court.

[00:25:08] Speaker 03:
That is what I would.

[00:25:10] Speaker 03:
I don't believe there's any impediment to him pursuing that option.

[00:25:13] Speaker 03:
And again, the EGEP briefing, which has now been fully briefed, raises these questions as well.

[00:25:19] Speaker 03:
So to the extent that the Veterans Court may well consider the question

[00:25:22] Speaker 03:
before it gets through all that process, if that's the avenue.

[00:25:26] Speaker 01:
What is the status of the IJA briefing at the Veterans Court?

[00:25:29] Speaker 03:
The IJA briefing, if you look at page 59 and 60 of the appendix, you have a Veterans Court decision of June 3rd, 2016.

[00:25:37] Speaker 03:
This is 59 and 60?

[00:25:39] Speaker 03:
59 to 60, Your Honor.

[00:25:42] Speaker 03:
And the Veterans Court said it was staying the proceedings and deferring consideration of the IJA motion.

[00:25:49] Speaker 01:
And what was the substance of the IJA motion?

[00:25:51] Speaker 03:
The IJA motion was seeking the IJA fees that had been awarded by the Veterans Court.

[00:25:58] Speaker 03:
And the secretary filed an opposition on grounds that if the court were to award the IJA fees without this offset under Carpenter, that that would be inappropriate.

[00:26:08] Speaker 03:
So the issue came up with respect to the offsetting that's being raised here in that context as well.

[00:26:14] Speaker 03:
And the briefing is in the record.

[00:26:17] Speaker 03:
I believe the secretary's response is at Appendix 69.

[00:26:21] Speaker 03:
And the EJA application is that Appendix starts as Appendix 22.

[00:26:25] Speaker 01:
So that could be another vehicle for consideration.

[00:26:28] Speaker 03:
That's correct.

[00:26:30] Speaker 03:
I see I'm almost out of time.

[00:26:31] Speaker 03:
For these reasons, we respectfully request the court dismiss for lack of jurisdiction or affirm the judgment below.

[00:26:36] Speaker 03:
Thank you.

[00:26:42] Speaker 02:
And I believe that this court does have jurisdiction.

[00:26:44] Speaker 02:
I've outlined originally why.

[00:26:46] Speaker 02:
The government responds that there is no jurisdiction because of 73... or 62... excuse me.

[00:26:54] Speaker 02:
72-63-D.

[00:26:57] Speaker 02:
Thank you.

[00:26:58] Speaker 02:
72-63-D.

[00:26:59] Speaker 01:
I'm completely... What do you say to the council's argument that the root

[00:27:10] Speaker 01:
set out in 5904C3A is available to you.

[00:27:19] Speaker 02:
Mike?

[00:27:20] Speaker 02:
I do not believe it is because I do not believe that that statute authorizes the attorney to seek review.

[00:27:26] Speaker 02:
It only allows Mr. Washington to do that.

[00:27:30] Speaker 02:
Mr. Washington may or may not choose to do that at a time in which all of this is done and behind him and he has received an award of past due benefits.

[00:27:38] Speaker 02:
as Judge Prost pointed out, ultimately it depends upon whether or not Mr. Washington does or doesn't receive an award to pass due benefits.

[00:27:46] Speaker 02:
The problem that that avenue, as suggested by the government, is to encourage me or other attorneys to willfully, knowingly enter into fee agreements that are contrary to the rule in Carpenter in order to test the rule in Carpenter.

[00:28:05] Speaker 01:
I see what you're saying is the problem with that provision says

[00:28:09] Speaker 01:
that the claimant may seek review.

[00:28:12] Speaker 01:
And you're not the claimant.

[00:28:13] Speaker 01:
You're the claimant's attorney.

[00:28:15] Speaker 02:
I'm the claimant's attorney.

[00:28:17] Speaker 02:
The other point is that I do not believe that the intention of 7263D is to prevent review of this rule of law.

[00:28:27] Speaker 02:
The government has basically said that that rule stands as a barrier for the review of the rule of law in Carpenter.

[00:28:37] Speaker 02:
When Carpenter was originally appealed, it was appealed to challenge the fee decision.

[00:28:44] Speaker 02:
And this court correctly determined that 7263 prevented that review.

[00:28:49] Speaker 02:
At that time, this court did not have rule of law jurisdiction.

[00:28:55] Speaker 02:
If it had been prepped under rule of law jurisdiction, I believe that this court would have had such jurisdiction.

[00:29:02] Speaker 02:
but mayhaps it wouldn't because there would have been an award of a fee that was decided upon by the Veterans Court.

[00:29:10] Speaker 02:
That's not what has happened in this case.

[00:29:13] Speaker 02:
What has happened in this case is that this question of law was presented originally to the single judge who declined.

[00:29:21] Speaker 02:
It was then asked

[00:29:22] Speaker 02:
for review by the in-bond court, the in-bond court declined.

[00:29:26] Speaker 02:
The problem with going through and replaying all of this and going through another three to five to ten years worth of litigation gets us to exactly the same point because the rule of law is controlled by the decision in Carpenter.

[00:29:41] Speaker 01:
What about the attorney fees, the Egypt litigation

[00:29:46] Speaker 01:
That's going on that Mr. Kanisaris referred to.

[00:29:49] Speaker 02:
He is correct that the government is taking the position below in the IJA petition that so long as the IJA contract is, excuse me, so long as the fee contract is in the position that it's in, there is no entitlement to IJA, period.

[00:30:06] Speaker 02:
Now, if the court makes that decision and agrees with the government and denies the IJA application,

[00:30:12] Speaker 02:
then that is clearly appealable because that will be a decision under Egypt, not a decision based upon a fee agreement.

[00:30:21] Speaker 02:
And it will then be based upon the rule of law.

[00:30:24] Speaker 02:
And yes, we could be back here again in far less time than going all the way back through

[00:30:29] Speaker 02:
and starting with 5904.

[00:30:31] Speaker 01:
So that would be a vehicle that would get the validity of Carpenter before us.

[00:30:37] Speaker 02:
It is, your honor.

[00:30:38] Speaker 02:
And to be perfectly candid with the court, the difficulty in getting this question before the court, and I have tried on many occasions to do that, is to figure out exactly what the right procedure is because there are so many moving parts in this

[00:30:58] Speaker 02:
that do or do not allow for us to get a final decision to come before this court.

[00:31:03] Speaker 02:
I believe that we have a clear decision, a clear statement from the Veterans Court in Bong that they do not wish to review this question.

[00:31:13] Speaker 02:
I believe that this court can either exercise its discretion and send it back or can address the decision and we can get a ruling on the merits of the matter or we can wait for another day.

[00:31:25] Speaker 02:
Thank you.