[00:01:18] Speaker 02: Okay, our next case this morning is number 17-1287, Bly v. Shulkin, Mr. Solinsky. [00:01:29] Speaker 01: May it please the Court, Brandon M. Solinsky on behalf of the claimant-appellant, Mr. Bly. [00:01:35] Speaker 01: This case is about a veteran's application for EG fees, specifically about the disparity in the Veterans Court rules governing the timing of when an EG application, the filing time, begins to run. [00:01:49] Speaker 01: Under the EGIS statute, a successful party has 30 days from the final judgment in which to file an application. [00:01:56] Speaker 01: And so the question is, when is that final? [00:01:58] Speaker 01: When is that judgment final? [00:02:00] Speaker 01: Under Rule 36, a judgment is effective date. [00:02:04] Speaker 02: What do we care about Rule 36? [00:02:07] Speaker 02: I mean, the statute says final judgment means a judgment is final and not appealable. [00:02:11] Speaker 02: And your argument is that it was appealable until 30 days ran, and that should be tacked on to the end of the period. [00:02:18] Speaker 02: Who cares what the procurates will say? [00:02:25] Speaker 02: They can't overcome the statute, can they? [00:02:28] Speaker 01: Your Honor, it's not clear that the statute is referring to the kind of mandate order that was in this case. [00:02:38] Speaker 02: So the 28... Oh, but that's the question, is what's the meaning of the statute? [00:02:44] Speaker 02: They can't change the statute with the rule. [00:02:47] Speaker 01: Agreed, Your Honor. [00:02:48] Speaker 04: and it's not our argument that it does, although... I mean, haven't all courts in interpreting final judgment in 2412, the IJA statute, interpreted final judgment to be final and non-appealable? [00:03:04] Speaker 01: Yes, that's correct. [00:03:05] Speaker 04: So again, what difference does the Veterans Court rule on that make? [00:03:10] Speaker 04: What we have to determine is whether the judgment was final [00:03:14] Speaker 04: and non-appealable. [00:03:15] Speaker 04: And that usually means the time for appeal or further review has run, doesn't it? [00:03:21] Speaker 01: Correct. [00:03:22] Speaker 01: So our position is that the time for appeal had not run. [00:03:27] Speaker 04: So even though it's a final order, there were still 60 days in which... So the question, I guess, is, and the government, I think, cites maybe one case to suggest this, but it sounds like there's other cases, including from us, that suggest the otherwise. [00:03:43] Speaker 04: the time for appeal essentially be truncated upon agreement of the parties? [00:03:50] Speaker 01: Your Honor, I think that it can, but I don't think that this case is clear that it does. [00:03:54] Speaker 01: So in the motion, both sides agreed that the case would be remanded. [00:04:00] Speaker 01: And the court agreed to that, but Mr. Bly did not agree that he would give up his right to appeal. [00:04:08] Speaker 01: And I know that that seems like an odd result because [00:04:12] Speaker 01: If we want this judgment, there's no reason why we'd want to appeal, but that's consistent with what a lot of other courts have held. [00:04:18] Speaker 04: What if the consent judgment had included the additional line saying no appeal shall be filed? [00:04:25] Speaker 04: Would the time then start to run from the date of that judgment, or at the expiration of the appeal period after that judgment? [00:04:33] Speaker 01: Your Honor, I think it's still at the expiration of the appeal, at the 60 days. [00:04:37] Speaker 01: And again, just to give an example of another [00:04:42] Speaker 04: So, I don't understand your answer to my previous question, which you seem to agree that the parties could alter the time for appeal in the consent judgment, but I gave you a hypothetical where they agreed to alter the time for the appeal by saying no appeal could be filed at all, and you said that still didn't do anything. [00:05:03] Speaker 04: I mean, you may be right that [00:05:06] Speaker 04: The statutory appeal period is the statutory appeal period and the veterans can't change that by rule and the parties can't change that by agreement. [00:05:16] Speaker 02: Yes, Your Honor. [00:05:17] Speaker 02: There's a conflict in the circuits here, isn't there? [00:05:19] Speaker 02: Yes, Your Honor. [00:05:21] Speaker 02: As to what the rule should be. [00:05:22] Speaker 02: Correct. [00:05:23] Speaker 02: In Impreza, we seem to say that we wanted to apply a blanket uniform rule without making it depend on whether a particular judgment was appealable or not appealable, right? [00:05:35] Speaker 01: Correct, Your Honor. [00:05:36] Speaker 01: That has the advantage of being consistent, a consistent rule to kind of bring all these conflicting decisions together so that a claimant can know what that rule is. [00:05:51] Speaker 01: The example I was going to give is in Social Security. [00:05:54] Speaker 01: No matter whether the government agrees to the remand, there's still a 60-day waiting period that you have to endure. [00:06:01] Speaker 00: What if the remand order says something to the effect that the parties have fully settled [00:06:06] Speaker 00: all claims, et cetera, were remanding for some administrative task? [00:06:12] Speaker 01: You know, I think that there's still a 60-day waiting period. [00:06:15] Speaker 01: And again, that's for the sake of consistency so that every claimant after that knows that there's still going to be a 60-day waiting period. [00:06:24] Speaker 01: Whereas here, there is one rule. [00:06:27] Speaker 01: And this is a rule, again, going back to the rules, rule 41 abrogates that and says, well... You're saying that in every case. [00:06:35] Speaker 00: You have 60 days that applies. [00:06:37] Speaker 00: You can't think of a single exception where the 60 day would not apply. [00:06:41] Speaker 00: It would just be 30 days from the entry of the judgment of the court. [00:06:45] Speaker 01: Correct, Your Honor. [00:06:46] Speaker 01: That's right. [00:06:48] Speaker 01: And that provides, again, the consistency that that provides. [00:06:53] Speaker 02: I'm not sure the President supports quite that broad a proposition. [00:07:00] Speaker 02: If you look at 1371, this is [00:07:04] Speaker 02: 531, 1371. [00:07:06] Speaker 02: It says, the better procedure is to avoid coroner litigation of time periods for each of filings when there's been a voluntary dismissal. [00:07:15] Speaker 02: The question is whether that would apply to a consent judgment, but assume it does. [00:07:18] Speaker 02: It says, at least where the order of dismissal does not specifically prohibit appeal. [00:07:24] Speaker 02: So at least under Judge Hsu's hypothetical, impressive might say, no, no, you don't get the benefit of the appeal period under those circumstances. [00:07:36] Speaker 01: No. [00:07:37] Speaker 01: I think that's true, Your Honor. [00:07:41] Speaker 01: And what we're trying to argue here is that particularly in a case where you have an Article I court, where you have the Veterans Court, you have a veteran who is applying for Egypt fees, that veteran ought to, as the Supreme Court has put it, get that thumb on the scale. [00:08:00] Speaker 01: So even though the rules seem to conflict with one another, [00:08:04] Speaker 01: In a case like this one, the veteran ought to get that additional benefit of the doubt. [00:08:11] Speaker 04: I don't know if this is in the record or not, but what part of this litigation did you apply for each of these before? [00:08:18] Speaker 04: The proceedings before the Veterans Court leading up to the joint motion to remand? [00:08:22] Speaker 01: Correct. [00:08:23] Speaker 01: That's right. [00:08:24] Speaker 04: And the government agreed to the joint motion to remand? [00:08:26] Speaker 01: They did. [00:08:28] Speaker 01: They drafted it, I think. [00:08:33] Speaker 01: In addition to the veteran getting that thumb on the scale, the government in this case is not prejudiced at all. [00:08:38] Speaker 01: In fact, they did not object to our Egypt fees. [00:08:41] Speaker 01: The Veterans Court did, and that's why we had the oral arguments at the court below. [00:08:45] Speaker 01: How much are we talking about? [00:08:48] Speaker 01: Relatively little, Your Honor. [00:08:49] Speaker 01: It's in the range of about $3,000. [00:08:50] Speaker 01: And the reason that we have appealed it this far is we don't believe that's fair to the veteran, despite what that might cost us. [00:08:59] Speaker 00: You didn't appeal that equitable toll, and that issue's not before us. [00:09:01] Speaker 01: Correct. [00:09:02] Speaker 01: I don't believe that that applies. [00:09:05] Speaker 01: If the court doesn't have any other questions, I'd like to reserve the balance of my time for rebuttal. [00:09:09] Speaker 01: Okay, thank you. [00:09:22] Speaker 02: So why isn't Impreza governing here? [00:09:28] Speaker 03: Well, I think that's the question that's at the heart of [00:09:31] Speaker 03: plaintiff's appeal. [00:09:33] Speaker 03: How can a veteran's court consent order be final and unappealable for each approach purposes if there's some possibility, however remote, that it could still be appealed? [00:09:44] Speaker 03: And the answer to that question, and it goes to Impreza as well, is that that approach that appellant has taken here is both contrary to the IJA statute and bad for veterans. [00:09:54] Speaker 02: I don't understand the argument, but we've got a precedent here in the Impreza case. [00:10:01] Speaker 02: You're not contending, are you, this difference between a voluntary dismissal and a consent judgment? [00:10:06] Speaker 03: We are, Your Honor. [00:10:07] Speaker 03: And there are two distinctions here between this case and the President Garuffi case. [00:10:14] Speaker 03: First of all, that was a unilateral voluntary dismissal motion. [00:10:18] Speaker 03: This is a joint consent order. [00:10:21] Speaker 02: The second distinction is that... Why should that make a difference? [00:10:26] Speaker 02: Yes, it's different, but it's not irrelevant. [00:10:29] Speaker 03: It makes a difference because, and this also goes to another distinction between this case and Garoufi, it implicates the Aegis Statute itself. [00:10:38] Speaker 03: The Aegis Statute makes clear at 2412, D2G, and as well as the legislative history, but it's pretty clear in the language of the statute itself that... Can I ask you this? [00:10:50] Speaker 04: I know I'm interrupting you, but in terms of interpreting 2412, the courts have generally held that final judgment means final and not appealable, right? [00:11:00] Speaker 04: And not appealable usually means the time for appeal is exhausted. [00:11:04] Speaker 03: Including an order of settlement. [00:11:06] Speaker 03: That's the language of the statute. [00:11:08] Speaker 03: And the legislative history goes on to explain that it's clear that EGIN intends for the 30-day period to begin on the date of an order of settlement. [00:11:18] Speaker 03: Any settlement is appealable on the type of remote grounds that we're talking about here. [00:11:24] Speaker 03: If the rule is [00:11:26] Speaker 03: that the remote possibility of appeal makes this not final and unappealable for Egypt purposes, then the statute would be meaningless. [00:11:33] Speaker 02: Wait, wait, wait. [00:11:34] Speaker 02: Why shouldn't we construe settlement in there as referring to what Judge Raina was asking about before, which is the settlement of the entire case, cases over with, as opposed to an agreement about a particular issue? [00:11:50] Speaker 03: I appreciate the opportunity to clarify that, Your Honor. [00:11:53] Speaker 03: In the context of veterans court practice, [00:11:56] Speaker 03: That's precisely what we have here. [00:11:57] Speaker 03: This is what a settlement, and in fact, a vast majority of settlements look like in a Veterans Court case. [00:12:04] Speaker 03: It's not like, for example, Court of International Trade practice where there's a remand that goes back and forth. [00:12:09] Speaker 02: The statute's a general statute. [00:12:10] Speaker 02: It's not directed to the Veterans Court. [00:12:12] Speaker 02: The question is what they meant in the statute by settlement. [00:12:16] Speaker 02: You can't say, oh, well, in the Veterans Court area, most settlements are just with respect to a particular issue when they wrote this statute broadly. [00:12:24] Speaker 02: And one might think that what they meant by settlement was a settlement of the entire case. [00:12:29] Speaker 02: I understand, Your Honor, and that's precisely what we have here. [00:12:31] Speaker 04: That's the thing. [00:12:32] Speaker 04: This isn't a settlement. [00:12:33] Speaker 04: It may be. [00:12:34] Speaker 04: I understand. [00:12:35] Speaker 04: I know the VA system, and this is what happens. [00:12:38] Speaker 04: Settlements aren't entered into at the Veterans Court that resolve the case very often, if ever. [00:12:44] Speaker 04: But that doesn't mean that we alter the definition of settlement. [00:12:48] Speaker 04: This is a consent judgment to [00:12:52] Speaker 04: vacate and remand for further board proceedings. [00:12:54] Speaker 04: And it's pretty typical in a veteran court's proceedings. [00:12:59] Speaker 04: Let me ask you this. [00:13:00] Speaker 04: If after this consent order was entered, somebody filed an appeal, the veteran filed an appeal within the time for appeal that said, I agree to this under duress, would you argue that that appeal is untimely? [00:13:22] Speaker 04: Or would you argue that they had waived their right to appeal? [00:13:26] Speaker 03: Well, the veteran as an initial matter would have waived the right to appeal. [00:13:32] Speaker 03: In that circumstance, the appropriate thing to do, there's a remedy for that. [00:13:35] Speaker 04: But that means that the judgment was still appealable within a certain time period. [00:13:42] Speaker 04: And so it didn't become final until that period for appeal expired, even though [00:13:49] Speaker 04: on its face, it looked like the veteran had voluntarily agreed to the consent order. [00:13:55] Speaker 03: Your Honor, that same exact argument would apply to any order of settlement. [00:14:01] Speaker 03: In any case of an order of settlement, someone could, within a 60-day window, appeal and say, I didn't agree to this. [00:14:07] Speaker 03: This was under duress. [00:14:09] Speaker 03: The Aegis Statute is clear. [00:14:11] Speaker 04: See, this is the problem. [00:14:13] Speaker 04: This isn't a settlement. [00:14:14] Speaker 04: You want to describe it as akin to a settlement. [00:14:17] Speaker 04: It's a not. [00:14:18] Speaker 04: If you had a veterans court order saying the parties have agreed to settle this case, it is dismissed as of X state, then you might have a different order and we might have a different rule. [00:14:28] Speaker 03: Respectfully, your honor. [00:14:30] Speaker 03: In the veterans context, this is a settlement and I'll try to explain why. [00:14:34] Speaker 04: I know exactly what you're saying. [00:14:37] Speaker 04: They never agree to settlements that pay out benefits at the veterans court because the secretary thinks that they don't do that, but it's the obligation of the board to award benefits. [00:14:47] Speaker 04: decide service connection issues and the like. [00:14:49] Speaker 04: They may be right. [00:14:50] Speaker 04: That just means that the settlement process is not something that can happen at the Veterans Court. [00:14:55] Speaker 04: It doesn't mean we should alter our definition of settlement. [00:14:59] Speaker 03: It completely ends litigation. [00:15:01] Speaker 03: That's the issue. [00:15:04] Speaker 04: It doesn't end the litigation any more than a joint motion to remand from the CIT back to the Commerce Department ends the litigation. [00:15:12] Speaker 04: And I think you would agree that that kind of joint motion to remand [00:15:16] Speaker 04: would not become final until the appeal period to this court runs. [00:15:21] Speaker 03: There's a big difference between this and I think that's a key point so I want to make sure I'm clear on this. [00:15:25] Speaker 03: There's a difference between this and that type of remand to the CIT. [00:15:29] Speaker 03: This is more akin to an appeal to this court, for example. [00:15:34] Speaker 03: There's a slight difference because it really does end the litigation. [00:15:40] Speaker 03: The way this works is that [00:15:42] Speaker 04: that because it's a uh... uh... uh... uh... uh... federal will let's talk about that let's say somebody files you know uh... an agreement to voluntarily remand from this court to the veterans court does the appeal period not apply at all is it finalize at that date or can they still change their mind and decide that was under duress and file a cert petition to the Supreme Court well in that case the ninety days right [00:16:10] Speaker 03: Again, if it were like a voluntary dismissal, yes, they could still do that. [00:16:17] Speaker 03: If it's a settlement agreement where it's a joint motion and they're saying, we've agreed to settle this case. [00:16:23] Speaker 04: Isn't the real problem here that you can resolve this issue practically by determining whether or not you're going to allow Egypt fees to be, petitions to be filed and these joint motions to remain? [00:16:36] Speaker 04: If you were to put in a sentence in this joint motion that said, [00:16:40] Speaker 04: fees are to be borne by the parties for these proceedings, they would have waived their right to file each of these. [00:16:46] Speaker 03: And we wouldn't have to be worrying about this, right? [00:16:49] Speaker 03: I think the parties could do that, but they're not... Why don't they? [00:16:53] Speaker 04: I mean, the Veterans Court enters into hundreds, if not thousands of these joint motions to remands every year. [00:17:00] Speaker 04: The parties enter into them before the Veterans Court. [00:17:03] Speaker 04: Why doesn't the secretary have a practice [00:17:06] Speaker 04: of determining whether it's going to allow a petition to be filed or not? [00:17:13] Speaker 03: Obviously, I can't speak to that decision making. [00:17:16] Speaker 03: But what I can say is that the Veterans Court's jurisprudence and rules are specifically set up in this pro-veteran way. [00:17:24] Speaker 03: Again, this completely ends litigation. [00:17:27] Speaker 03: Because it's a federal case and a board case, there's no more federal litigation. [00:17:30] Speaker 03: We understand that proceedings continue with the board. [00:17:34] Speaker 03: But it is done. [00:17:36] Speaker 03: It completely ends the proceeding. [00:17:39] Speaker 03: There is nothing else for the court of veterans claim to do. [00:17:41] Speaker 02: And if it came back up to the court of federal claims, it would be a different case. [00:17:45] Speaker 02: But it doesn't end the case insofar as there's been a remand to the board, right? [00:17:51] Speaker 03: But if it came back, it would be a completely different case with a completely different number. [00:17:55] Speaker 03: It's not the same case. [00:17:58] Speaker 03: There would be a new EJA application. [00:17:59] Speaker 04: It also doesn't truncate the time to appeal. [00:18:04] Speaker 04: You say it ends the case, but you also agree that they could file a timely notice of appeal. [00:18:10] Speaker 04: They may be barred because they've agreed not to appeal, although here it doesn't even seem they agreed not to appeal. [00:18:17] Speaker 04: It's just a motion to remand. [00:18:18] Speaker 04: You'd probably argue that was voluntary, and we'd probably agree with you. [00:18:23] Speaker 04: But it doesn't end the federal litigation in the sense that it's not final and not appealable until the time for appeal runs. [00:18:30] Speaker 03: That's where the common law comes in. [00:18:31] Speaker 04: comes in, which says that in this type of situation where parties have entered... For that, are you... I mean, you're trying to make us distinguish between voluntary dismissals and consent judgments, and I think you're pointing to a Third Circuit case when there's a Ninth Circuit case that goes the other way. [00:18:48] Speaker 03: Well, there's considerable authority on... The Ninth Circuit case is a slightly separate issue, but on the authority, there's authority throughout the circuits, including the Ninth Circuit, including this court's decision in Taylor-Brandt's [00:19:01] Speaker 02: where courts have consistently recognized that when a party consents to the substance of a judgment and consent here... Taylor actually hurts you because what Taylor recognizes is that sometimes there are consent judgments that can be appealed because Taylor suggests you have to distinguish between agreement as to the form and agreement as to the substance. [00:19:25] Speaker 02: And so you can have situations in which there is an appeal from a consent judgment. [00:19:30] Speaker 02: And what we said in Impreza is we're not going to decide this on a case-by-case basis. [00:19:36] Speaker 02: We're going to say if there's a possibility of an appeal in some circumstances, put aside the situation where there's either an entire settlement or an agreement not to appeal, we're going to apply a blanket rule. [00:19:50] Speaker 02: And I guess I come back to the question of why would you distinguish between a voluntary dismissal for that purpose and a consent judgment? [00:19:59] Speaker 02: Putting aside your argument about the settlement language, let's assume you lose on that. [00:20:05] Speaker 02: Why would you distinguish between a consent judgment, which can be appealed sometimes, and a voluntary dismissal, which can be appealed sometimes? [00:20:16] Speaker 03: This is not an instance of a form versus substance distinction. [00:20:20] Speaker 02: Here, there was a consent on the substance. [00:20:22] Speaker 02: But that's exactly what we said in Impreza is we're not going to do this on a case-by-case basis. [00:20:26] Speaker 02: We're going to have a blanket rule, because it's simpler for everybody, and people know where they stand. [00:20:30] Speaker 02: And they said, we're going to have a blanket rule for voluntary dismissals. [00:20:34] Speaker 02: And the question is, why shouldn't we have the same blanket rule for consent judgments? [00:20:38] Speaker 03: Well, in creating that blanket rule in Impreza, this court looked to the DC Circuit's decision in Adams. [00:20:46] Speaker 03: spoke about, and it's a longer decision, so I have to summarize it here. [00:20:49] Speaker 03: It talks about there should be a uniform rule where you look at a category of rule and then the applicable law of appealability. [00:20:56] Speaker 03: So this is a separate category of rule. [00:20:58] Speaker 03: It's consent order. [00:20:59] Speaker 03: It's not a unilateral dismissal. [00:21:01] Speaker 03: And the applicable law of appealability, as long as there's a consent to the substance, which is certainly the case here, is that it's not appealable except in these really remote circumstances. [00:21:14] Speaker 03: I mean, we've cited there are thousands of cases. [00:21:16] Speaker 03: We're not aware of any such circumstance. [00:21:18] Speaker 03: And those same circumstances would apply to any settlement, which Eija is making clear. [00:21:24] Speaker 03: And even if one assumes there's a distinction between a settlement and a consent order, Eija makes clear that a settlement which is just a little confused about why it makes any difference and what the ramifications are going to be here. [00:21:38] Speaker 04: I mean, if we went with your rule that consent judgments are different and somebody was [00:21:44] Speaker 04: But you agree that in some circumstances, an appeal can be filed within the time period. [00:21:50] Speaker 04: If somebody has missed the 30-day time limit from the date of the judgment to file an EJA application, wouldn't they just file a notice of appeal before the time for appeal expires, which would make it a non-final judgment, and then file their EJA petition? [00:22:07] Speaker 04: Because you agree that they can file an appeal within 60 days from this consent judgment, they're going to lose. [00:22:15] Speaker 04: But they can do it. [00:22:16] Speaker 04: And if they file it, it certainly renders it a non-final judgment of the Veterans Court. [00:22:21] Speaker 03: I can't speak to what might happen at the Veterans Court in that scenario. [00:22:25] Speaker 04: But that's exactly the kind of thing we were trying to foreclose and impress at and establish a uniform rule. [00:22:31] Speaker 04: And what's wrong with the uniform rule that says, in any kind of order from the Veterans Court, it doesn't become final until it's final and non-appealable, which includes the appeal period. [00:22:45] Speaker 03: I see my time's running out, so there are two points I need to make sure I get in here. [00:22:50] Speaker 03: First of all, is that these rules are specifically set up to be pro-veteran. [00:22:54] Speaker 03: So the approach that is being advocated here is certainly bad for veterans. [00:22:59] Speaker 03: You're talking about taking thousands of cases. [00:23:01] Speaker 03: Why? [00:23:01] Speaker 04: Is this about the mandate and that they have to wait to act? [00:23:04] Speaker 03: Yes. [00:23:04] Speaker 04: I don't understand that at all. [00:23:06] Speaker 04: There's nothing that prevents the board from acting on the Veterans Court mandate, even if the time for appeal hasn't [00:23:14] Speaker 02: hasn't been exhausted. [00:23:15] Speaker 02: Their rules provide the mandate issues when the remand order is entered. [00:23:21] Speaker 02: So that frees up the board to continue to act on the case without waiting for the appeal period to run, doesn't it? [00:23:29] Speaker 03: No, for two reasons. [00:23:30] Speaker 03: First of all, Cerullo versus Jawinski says that mandate in the Veterans Court context works much like mandate here, where the lower court cannot take jurisdiction back [00:23:38] Speaker 03: of the case until, while the case is pending at the Veterans Court. [00:23:43] Speaker 04: But when you issue the mandate, it goes back. [00:23:47] Speaker 04: The mandate doesn't have to wait for the time for review to be exhausted, does it? [00:23:51] Speaker 03: It does under the Veterans Court's decision in Westfall where they said, if we're wrong about the appeal period. [00:23:57] Speaker 04: But that's their decision. [00:23:58] Speaker 04: They don't have to follow that. [00:24:00] Speaker 04: We issue mandates all the time before the time for cert has been [00:24:06] Speaker 04: exhausted. [00:24:06] Speaker 04: We issue mandates after 45 days, but the time for cert doesn't exhaust for 90 days. [00:24:12] Speaker 04: People ask us to stay the mandate all the time. [00:24:15] Speaker 04: We refuse all the time. [00:24:16] Speaker 04: So the district courts have to act on our mandate before the time for review has been exhausted. [00:24:21] Speaker 04: I don't see why the board and the court can't, the veterans court can't do the same thing. [00:24:26] Speaker 04: There's nothing that prevents the board from acting on the veterans court mandate, even if there's still a potential appeal to us. [00:24:33] Speaker 04: Is there nothing legally? [00:24:37] Speaker 03: The court's decision in Westfall takes the view, and it seems to be a correct view, that if the appeal period is still running, it is not appropriate for us to issue the mandate. [00:24:48] Speaker 03: The court essentially gave a male call and said, you know, we issued mandate, but [00:24:51] Speaker 03: because there has been no explicit waiver of appeal here, unlike in a consent situation. [00:25:00] Speaker 04: We can't issue a mandate until the time for review is exhausted, and we certainly do. [00:25:05] Speaker 04: You understand we do this all the time. [00:25:07] Speaker 04: I know. [00:25:07] Speaker 04: You practice here a lot. [00:25:10] Speaker 04: If we issue a mandate to the district court and they say we're not going to [00:25:15] Speaker 04: We can't legally follow it until the time for cert is expired. [00:25:19] Speaker 04: That's legally wrong. [00:25:20] Speaker 04: A lot of them probably wait as a matter of course, but they're not legally forbid from complying with our mandate. [00:25:27] Speaker 04: And in fact, we could order them to expeditiously comply with our mandate if we wanted to, couldn't we? [00:25:34] Speaker 03: I think you're correct, obviously. [00:25:36] Speaker 04: And the Veterans Court could do the same. [00:25:38] Speaker 04: It could order the secretary to start the board proceedings immediately, even if the appeal period hasn't [00:25:44] Speaker 04: hasn't expired, couldn't it? [00:25:47] Speaker 03: To my knowledge, the Veterans Court, and I can't, you know, paraphrase all of Westfall here, but Your Honor can certainly look at the case of court has taken the position that it is not permissible for him to do that. [00:25:58] Speaker 04: Do you agree with that? [00:26:00] Speaker 04: What's the legal justification for that? [00:26:02] Speaker 03: Well, in the Veterans Court, you don't have a situation of like a discretionary certiorari appeal situation. [00:26:09] Speaker 03: Here, you know, the mandate is supposed to be the end of the case. [00:26:13] Speaker 03: court's rules at 41A, say mandate is when the court's judgment has become final. [00:26:18] Speaker 03: It is, in Veterans Court's practice, it occupies this weird position where it's kind of intermediate appellate court. [00:26:26] Speaker 03: It does not have this discretionary cert process hanging over it where the practical way for parties to proceed is to follow the court's judgment, but there's this remote possibility that the Supreme Court could take the case. [00:26:40] Speaker 03: present in Veterans Court practice, their mandate is intended to be signaled not just that the judgment has been entered, but that the case is final. [00:26:48] Speaker 03: And at least if one reads Westfall, it's clear that the Veterans Court, you know, they said, look, this is going to hurt veterans, but we can't do it here. [00:26:55] Speaker 04: Now again, you're relying on their mandate rule. [00:26:57] Speaker 04: If we interpret 2412 as saying final judgment, including consent judgment, means until the time for a deal is exhausted, the Veterans Court has no authority whatsoever [00:27:08] Speaker 04: to alter that through rules of court defining final judgment as something else, do they? [00:27:13] Speaker 03: Agreed, Your Honor. [00:27:14] Speaker 03: This court obviously in Carbino-Hoods West has recognized that the Veterans Court can promulgate rules, but they can't overturn this court's rules. [00:27:23] Speaker 03: One final point to make briefly is I just want to be clear for the record that our understanding is this is not a matter of money coming out of the Veterans' hide. [00:27:32] Speaker 03: Ultimately, the veteran received benefits on a forward-going basis, the only time that EJA fees end up showing up. [00:27:38] Speaker 04: We get that, but the whole point of EJA is to encourage people to represent plaintiffs or other individuals in suits against the government that otherwise couldn't get attorneys. [00:27:49] Speaker 04: So whether or not it's ultimately going to come out of the veteran's pocket is really irrelevant. [00:27:55] Speaker 04: If we can't pay these people fees when they're entitled to file for them, then they won't represent them. [00:28:01] Speaker 03: I understood, Your Honor. [00:28:02] Speaker 03: We just want to make sure the record was clear on that point. [00:28:05] Speaker 03: Okay. [00:28:05] Speaker 03: Thank you, Mr. Connelly. [00:28:06] Speaker 03: Thank you, Your Honor. [00:28:08] Speaker 02: Mr. Selensky. [00:28:16] Speaker 01: Your Honor, my friend's arguments did not raise any additional issues for me, but I'm happy to answer any other questions that the Court has. [00:28:24] Speaker 01: Okay. [00:28:24] Speaker 01: Thank you, Mr. Selensky. [00:28:25] Speaker 01: Thank both counsel and Casey submitted.