[00:00:00] Speaker 03:
The ceremony of admission to the bar of this court, and I invite the two candidates, please.

[00:00:10] Speaker 03:
Let's start with Ms.

[00:00:12] Speaker 03:
Lee.

[00:00:12] Speaker 03:
Would you approach the podium?

[00:00:15] Speaker 03:
And I invite Judge Lurie to make the appropriate motion.

[00:00:22] Speaker 02:
I am very happy to move the admission of Emily Lee, who was a member of the bar and of good standing in the highest courts of California.

[00:00:35] Speaker 02:
I have knowledge of her credentials and am satisfied that she possesses the necessary qualifications.

[00:00:42] Speaker 02:
Emily has been with me for almost two years.

[00:00:46] Speaker 02:
She's very bright, hardworking, and personable.

[00:00:50] Speaker 02:
And she's given me insight into

[00:00:53] Speaker 02:
some cases that I didn't have my own insight into.

[00:00:58] Speaker 02:
And she has an infectious sense of humor that has enlightened chambers.

[00:01:04] Speaker 02:
So I move the admission of Emily to the bar of this court.

[00:01:10] Speaker 03:
Thank you for your motion.

[00:01:12] Speaker 03:
The panel will vote on whether to grant the motion.

[00:01:17] Speaker 03:
How do you vote?

[00:01:18] Speaker 04:
I'll cast my vote orally.

[00:01:20] Speaker 04:
You had the great privilege of clerking for a real giant in this field.

[00:01:23] Speaker 04:
And the words that he used to describe you were really amazing.

[00:01:28] Speaker 04:
I hope that you'll always take them with you to heart.

[00:01:31] Speaker 04:
In light of his endorsement, I vote in favor.

[00:01:34] Speaker 03:
And I share the vote.

[00:01:37] Speaker 03:
Welcome to the court.

[00:01:39] Speaker 03:
The ceremonies are not over.

[00:01:42] Speaker 03:
Let me next invite Ms.

[00:01:44] Speaker 03:
Miller to take your place at the podium.

[00:01:48] Speaker 02:
I move the admission of Kristin Sullivan Miller, who is a member of the Bar and in good standing in the highest courts of New York.

[00:01:57] Speaker 02:
I have knowledge of her credentials and am satisfied that she possesses the necessary qualifications.

[00:02:04] Speaker 02:
Kristin is very bright, hardworking, and personable, and is very thorough in difficult cases.

[00:02:12] Speaker 02:
And her good fellowship has contributed to the warm chamber's environment, along with Emily and her other colleagues.

[00:02:21] Speaker 02:
So I move her admission.

[00:02:23] Speaker 03:
Thank you, Judge Laurie.

[00:02:25] Speaker 03:
Let us again vote.

[00:02:26] Speaker 03:
Judge Moore, how do you vote?

[00:02:28] Speaker 04:
I again vote in favor.

[00:02:30] Speaker 04:
I repeat, basically the same thing I said before.

[00:02:32] Speaker 04:
You are so lucky to have clerked for Judge Laurie.

[00:02:36] Speaker 04:
He's a tremendous judge, a mentor, and I'm sure that you will take many lessons with you into the practice.

[00:02:42] Speaker 03:
As I share that vote, I'm going to join in granting the motion.

[00:02:47] Speaker 03:
Would the two of you now face the

[00:02:51] Speaker 03:
the circuit executive who will administer the vote.

[00:02:54] Speaker 03:
Do you solemnly swear that you will comport yourself as an attorney and counselor of this court, uprightly and according to law, and that you will support the Constitution of the United States of America?

[00:03:08] Speaker 00:
Thank you.

[00:03:13] Speaker 03:
Thank you.

[00:03:13] Speaker 03:
Congratulations.

[00:03:13] Speaker 03:
Welcome to the bar of this court, both of you.

[00:03:22] Speaker 03:
Proceed with the argument scheduled for this morning, the first case.

[00:03:27] Speaker 03:
First argued case is number 17, 1854, Brinkley against O'Rourke.

[00:03:33] Speaker 03:
Mr. Carpenter.

[00:03:34] Speaker 00:
May it please the court, Kenneth Carpenter, appearing on behalf of Mr. Hugh Cox.

[00:03:38] Speaker 00:
Mr. Cox is an intervener in the appeal below and has taken the appeal from a remand decision to this court.

[00:03:46] Speaker 00:
Mr. Cox believes that the exception that has been set out in this court's decisions

[00:03:51] Speaker 00:
in Williams and Don Allen apply to this case, that there are legal issues in this case that will directly affect and govern the remand proceedings, and if reversed by this court, would render those remand proceedings unnecessary.

[00:04:09] Speaker 02:
Well, Mr. Cox has gotten nothing so far, and the case, therefore, is not final.

[00:04:17] Speaker 02:
It went back on good cause for dismissal.

[00:04:23] Speaker 00:
Except that good cause for dismissal is criteria for the reasonableness of the fee charge.

[00:04:30] Speaker 00:
It has nothing to do with the appeal that was taken by Mr. Brinkley to the board.

[00:04:37] Speaker 04:
Mr. Carpenter, with all due respect, that's not at all what was held below.

[00:04:40] Speaker 04:
What was held below was that the fee was reasonable by the board, and the Veterans Court didn't question

[00:04:47] Speaker 04:
as far as I can tell, that determination.

[00:04:49] Speaker 04:
But the reasonableness of the fee is quite separate and apart, because that goes to the quantum merit question, quite separate and apart from whether there was good cause to fire him.

[00:04:59] Speaker 04:
It may well be that he is entitled to no fee at all.

[00:05:01] Speaker 04:
If he is entitled to a fee, I would certainly agree with you that the amount awarded has been deemed reasonable if he is, in fact, entitled.

[00:05:09] Speaker 04:
But what has not been adjudicated by the board, as found by the Veterans Court, I think quite correctly,

[00:05:15] Speaker 04:
is whether he's entitled to any fee at all.

[00:05:18] Speaker 04:
Mr. Brinkley alleges that his lawyer was not returning his phone calls, his lawyer refused requests to hearing that he wanted, and that that was why they parted ways, and he terminated the agreement.

[00:05:30] Speaker 04:
If that amounts to good and adequate cause under this contract, your client is entitled to nothing.

[00:05:34] Speaker 04:
And so that is the question.

[00:05:36] Speaker 04:
It seems quite clear from the board opinion.

[00:05:38] Speaker 04:
They did, in fact, decide the reasonableness of the amount of the fee, were he entitled to a fee.

[00:05:43] Speaker 04:
But I see no discussion of the predicate question of whether he's entitled to any fee at all.

[00:05:48] Speaker 00:
And the question is, Your Honor, is whether or not this court's decision in skates, which was made at a time in which the board had to respond to jurisdiction to consider those issues, was able to consider the termination based upon discharge.

[00:06:05] Speaker 04:
I don't understand your argument at all, start over, because nothing that you just said made any sense to me.

[00:06:11] Speaker 00:
There are two decisions to be made under the statutory scheme.

[00:06:15] Speaker 00:
The decision that was made in this case was made as to whether or not his fee complied with the provisions of 5904D.

[00:06:22] Speaker 00:
That is, that he was entitled to have the secretary withhold his fee.

[00:06:27] Speaker 00:
That was the decision that was appealed by Mr. Brinkley.

[00:06:31] Speaker 00:
Separately, Congress provided under 5904C for review for reasonableness.

[00:06:36] Speaker 00:
Those are the only two statutory provisions that apply to fee review.

[00:06:42] Speaker 04:
No, there is a contract in this case that applies.

[00:06:46] Speaker 04:
And it's perfectly within the province of the board and the CABC to decide whether under the contract that this veteran entered into with his lawyer, whether his lawyer was entitled

[00:06:56] Speaker 04:
to any fees at all given that they had terminated their relationship years before his award actually came.

[00:07:02] Speaker 00:
Respectfully, Your Honor, I do not believe that that is correct.

[00:07:05] Speaker 04:
The only way that the board... You don't believe that the lawyer is bound by the contract that he entered into as a client?

[00:07:10] Speaker 04:
He's the one who wrote the contract.

[00:07:11] Speaker 04:
How is he not bound by this contract?

[00:07:13] Speaker 00:
That is a matter, if appropriate, for disposition in a civil proceeding.

[00:07:18] Speaker 04:
Further, for the board to decide.

[00:07:19] Speaker 00:
No, Your Honor, not for the board.

[00:07:21] Speaker 00:
The board only gains jurisdiction if there is a decision by the VA.

[00:07:27] Speaker 00:
The only decision by the VA was that he met the requirements of 5904.

[00:07:32] Speaker 00:
which Mr. Brinkley contested under 5904D.

[00:07:36] Speaker 00:
That contest was appealed to the board, and the board affirmed the VA's decision, saying that Mr. Cox was entitled to a fee.

[00:07:44] Speaker 04:
That doesn't make any sense to me.

[00:07:46] Speaker 04:
I don't understand how you think the contract itself should be disregarded.

[00:07:50] Speaker 04:
And this attorney, who was terminated years before this veteran secured his benefits, shouldn't at least have adjudicated the question of whether he was terminated with good and adequate cause

[00:08:01] Speaker 04:
underneath the contract that he signed, according to the contract he signed.

[00:08:05] Speaker 04:
I don't even understand your argument today.

[00:08:07] Speaker 00:
Well, Your Honor, with respect, the argument is based upon the language of the statute.

[00:08:12] Speaker 00:
The jurisdiction of the board, the jurisdiction of the Veterans Court, is controlled by what Congress said they were limited to decide.

[00:08:21] Speaker 00:
The only decision that was made by the VA in this case was under 5904D.

[00:08:26] Speaker 00:
There was no decision made about the contract.

[00:08:29] Speaker 04:
There was no... That's exactly the basis for the need for a remand according to the CABC.

[00:08:35] Speaker 04:
And I don't see how we have jurisdiction over this non-final decision returning to the very point that Judge Laurie started with.

[00:08:43] Speaker 00:
You have jurisdiction because the disposition of this legal question as to whether or not this is a valid remand to a board to make a decision for which it has no jurisdiction to make.

[00:08:55] Speaker 00:
The way that the board gains its jurisdiction to make a decision vis-a-vis discharge and the reasonableness of the fee, which would include entitlement to no fee whatsoever, is under the provisions of 5904C and 14.636i.

[00:09:13] Speaker 00:
Those are the only legal authorities for decisions by the VA.

[00:09:20] Speaker 00:
There was no motion requesting review for the fee agreement to determine that question.

[00:09:25] Speaker 00:
The regulation expressly provides that there must be such a motion.

[00:09:30] Speaker 00:
No such motion was made in this case.

[00:09:33] Speaker 00:
No such decision was made by the Office of the General Counsel.

[00:09:37] Speaker 00:
And there was no appeal taken from that decision to the board.

[00:09:41] Speaker 00:
The board's jurisdiction is clearly and unquestionably implicated by decisions of the secretary.

[00:09:49] Speaker 00:
The secretary made no decision.

[00:09:51] Speaker 00:
This Court, excuse me, the Veterans Court,

[00:09:54] Speaker 00:
impermissibly applied the holding in skates that was made upon a different version of the law that existed at the time in which this appeal was taken that imposed specific requirements upon the veteran to file a motion for review of a fee agreement within 120 days.

[00:10:14] Speaker 00:
He did not make that decision.

[00:10:16] Speaker 00:
That regulation also provides that the Secretary

[00:10:19] Speaker 00:
through his general counsel can make his own motion.

[00:10:22] Speaker 00:
No motion was made by the secretary.

[00:10:25] Speaker 00:
As a consequence, without a decision of the secretary, there can be no jurisdiction given to the Board of Veterans' Appeals vis-a-vis a remand from the Veterans Court.

[00:10:40] Speaker 00:
There are no other questions.

[00:10:41] Speaker 00:
That sums up our argument.

[00:10:44] Speaker 03:
Thank you.

[00:10:44] Speaker 03:
That's you from the other side.

[00:10:51] Speaker 03:
Ms.

[00:10:52] Speaker 03:
Choi.

[00:10:54] Speaker 04:
Ms.

[00:10:54] Speaker 04:
Choi, Mr. Carpenter's argument seems to be that the VA and the board have absolutely no jurisdiction to determine whether it's appropriate to withhold an award attorney's fees pursuant to the contract entered into by the veteran and his attorney.

[00:11:10] Speaker 04:
Do you agree?

[00:11:12] Speaker 01:
We do not agree, Your Honor.

[00:11:14] Speaker 01:
The very terms of the contract state that the VA is going to have some

[00:11:18] Speaker 01:
position to monitor and ensure that the provisions of the agreement are met, that the fee is reasonable.

[00:11:24] Speaker 04:
In paragraph seven, the discharge provision... Well, I think that Mr. Carpenter, in fairness, would say he agrees the board has the authority to review whether the fee is reasonable, but he somehow divorces that from the ability to review whether any fee ought to be awarded at all under the terms of the contract.

[00:11:44] Speaker 04:
Your Honor, again... I don't follow it either, but try at your best.

[00:11:47] Speaker 01:
Your Honor, we would disagree with Mr. Carpenter's position.

[00:11:51] Speaker 01:
The VA has an opportunity to assess the eligibility, the entitlement, and the reasonableness of the fee.

[00:11:57] Speaker 01:
The RO simply looked at the requirements of the statute and did not look at the Four Corners or all of the provisions in the fee agreement, particularly the discharge provision.

[00:12:09] Speaker 01:
The board did not either.

[00:12:10] Speaker 01:
The Veterans Court deemed it proper because there is an obvious discharge provision

[00:12:17] Speaker 01:
that states that if the client discharges the attorney without good and adequate cause that perhaps a quantum Meriwet fee may be appropriate, but that implies that if the client discharges the attorney with good and adequate cause that

[00:12:36] Speaker 01:
He is not entitled to a fee at all.

[00:12:38] Speaker 01:
And the VA is not simply going to ignore that provision in the agreement.

[00:12:43] Speaker 04:
And if the CABC didn't seek to make that determination in the first instance, they rightly sent it back to the fact finder to decide, right?

[00:12:51] Speaker 01:
They rightfully sent it back to the board to determine or take a look at this issue.

[00:12:55] Speaker 01:
And on remand, the Veterans Court stated both the appellant and the intervener may present.

[00:13:02] Speaker 01:
And the board must consider any additional evidence and arguments.

[00:13:06] Speaker 01:
Certainly, if Mr. Cox has additional information regarding whether or not his discharge was without good cause, he may present those to the board.

[00:13:16] Speaker 01:
But it would be unfair for the veteran to not have an opportunity to present this information or have the board consider this provision at all.

[00:13:23] Speaker 01:
And the Veterans Court found that, thus far, neither the RO as the reviewing authority of the board had addressed this issue.

[00:13:34] Speaker 01:
Now, in accordance with the strict rule of finality, this Court should also decline to review the Veterans Court's remand order to the Board.

[00:13:42] Speaker 01:
Based on prudential considerations, this Court ordinarily will not review remand orders of the Veterans Court because they are not final judgments.

[00:13:51] Speaker 01:
Now, here as a first matter, Mr. Cox frames the legal issue as the Veterans Court having committed an error of law because the Board has no authority to review the reasonableness of the fee.

[00:14:03] Speaker 01:
We look at the Veterans Court decision.

[00:14:05] Speaker 01:
It did not expressly call on the board to address the reasonableness of the fee.

[00:14:09] Speaker 01:
Rather, it states, remand is required for the board to address whether the appellant had good cause for discharging the intervener, and in that review, determine whether or not the attorney is entitled to a fee to begin with.

[00:14:24] Speaker 01:
Thus, contrary to Mr. Cox's assertion, the Veterans Court did not render a clear legal holding concerning whether the board must undertake or has the authority

[00:14:33] Speaker 01:
to undertake a review of the reasonableness of the attorney's fees.

[00:14:36] Speaker 01:
It merely remanded for examination of this discharge provision, which it found no reviewing authority had taken a look at before.

[00:14:47] Speaker 01:
Now, more importantly, perhaps even if the court construes a Veterans Court's decision as clear and final, and the board makes a determination regarding the reasonableness of the fee, that decision is effectively reviewable by the Veterans Court and this court at a later point in time.

[00:15:03] Speaker 01:
And thus, in accordance with the strict rule of finality, we would argue that the court should decline review of this non-final decision and dismiss the appeal.

[00:15:13] Speaker 01:
Now going to Mr. Carpenter's point that Mr. Brinkley was required to file a motion with the board or with the secretary before a reasonableness review was undertaken, that's not the case.

[00:15:31] Speaker 01:
If you look at the language of the statute,

[00:15:34] Speaker 01:
It does not state that the only way a fee agreement may be reviewed for reasonableness is by a motion filed.

[00:15:41] Speaker 01:
It states the secretary may, upon the secretary's own motion, or at the request of the complainant.

[00:15:48] Speaker 01:
And this is the 2006 version of Section 5904.

[00:15:50] Speaker 01:
It doesn't state that the claimant need to make a motion.

[00:15:55] Speaker 01:
And the same goes for the 1996 version of the statute.

[00:15:59] Speaker 01:
It states that the board, upon its own motion, or the request of either party,

[00:16:03] Speaker 01:
may review such a fee agreement.

[00:16:06] Speaker 01:
And here where we have a situation where Mr. Brinkley has done everything he could to preserve his rights and raise these issues with the RO.

[00:16:15] Speaker 01:
He filed a notice of disagreement with the RO decision.

[00:16:18] Speaker 01:
He appealed to the board and he appealed to the Veterans Court raising all of these issues with respect to his concerns about Mr. Cox's representation.

[00:16:26] Speaker 01:
It would be unfair to

[00:16:32] Speaker 01:
hold as a technical requirement that because the board or Mr. Brinkley had not actually filed a motion in accordance with the regulation that he be barred from having the court take a look at the discharge provision in the fee agreement.

[00:16:50] Speaker 01:
If there are no further questions we respectfully request the court to decline review of this non-final decision and dismiss the appeal or in the event the court elects to review

[00:16:58] Speaker 01:
the merits of Mr. Cox's appeal, we ask the court to affirm the Veterans Court's remand decision so that the board can take a look at the discharge provision and assess whether or not there was indeed good cause for discharging Mr. Cox as provided in the Parties B agreement.

[00:17:15] Speaker 03:
Any questions?

[00:17:15] Speaker 03:
No questions?

[00:17:17] Speaker 03:
Thank you.

[00:17:18] Speaker 03:
Mr. Governor?

[00:17:22] Speaker 00:
The government's argument is circular.

[00:17:24] Speaker 00:
The government says that the terms of the contract

[00:17:27] Speaker 00:
are entitled to be reviewed to determine whether or not they're reasonable.

[00:17:31] Speaker 00:
Then the government says that there is no requirement for a motion.

[00:17:34] Speaker 00:
But it is the government that wrote the statute.

[00:17:37] Speaker 00:
It was Congress that said that fee agreements can be reviewed for a question of whether the fee called for is excessive or unreasonable.

[00:17:46] Speaker 00:
Then the Secretary promulgated a regulation at 14.636 I. And in that regulation, it explicitly, unambiguously says that a motion must be required for such review before the expiration of 120 days.

[00:18:04] Speaker 00:
That 120 days has come and gone.

[00:18:07] Speaker 00:
There was no motion by Mr. Brinkley.

[00:18:09] Speaker 00:
There was no motion by the BA General Counsel.

[00:18:15] Speaker 00:
As a consequence, there was no VA decision on the matter.

[00:18:20] Speaker 00:
Without a VA decision on the matter and an appeal of that VA decision by Mr. Brinkley, or if it was adverse to Mr. Cox, by Mr. Cox, there is no way to sua sponte create jurisdiction by the board.

[00:18:37] Speaker 00:
The version of the law that existed at the time of the Skates decision did, from Congress, give sua sponte authority to the board to review fee agreements for excessiveness or unreasonableness.

[00:18:51] Speaker 00:
Under that statutory authority, if this had taken place prior to the amendment of the statute, then the board may have arguably had jurisdiction based upon that authority from Congress.

[00:19:05] Speaker 00:
authority from Congress was taken away from the board by Congress to be given back to the Secretary, and the Secretary delegated that authority by regulation in 14636i to his general counsel.

[00:19:23] Speaker 00:
It is the general counsel who is charged by the Secretary to make a decision.

[00:19:27] Speaker 00:
Without a decision, there can be no jurisdiction.

[00:19:32] Speaker 00:
So what the board or, excuse me, what the Court did

[00:19:35] Speaker 00:
was unlawful and impermissible.

[00:19:38] Speaker 00:
It was ultra-virus.

[00:19:39] Speaker 00:
It was in excess of its legal authority.

[00:19:43] Speaker 00:
The Board, excuse me, the Veterans Court only has authority to review decisions of the Board.

[00:19:49] Speaker 00:
There was no decision of the Board under 5904C or 14636I.

[00:19:56] Speaker 00:
As a consequence, the Veterans Court cannot go beyond the four corners of that decision as a matter of law.

[00:20:04] Speaker 00:
Let's search for the questions from the panel.

[00:20:07] Speaker 00:
Thank you very much, Your Honor.

[00:20:08] Speaker 03:
Thank you.

[00:20:09] Speaker 03:
Thank you both.

[00:20:10] Speaker 03:
The case is taken under submission.