[00:00:00] Speaker 04:
to.

[00:00:44] Speaker 02:
May it please the Court.

[00:00:45] Speaker 02:
Kennedy Carpenter, appearing on behalf of Ms.

[00:00:48] Speaker 02:
Cornell.

[00:00:50] Speaker 02:
The Veterans Court in this case erred in affirming the Board's decision that the VA's payment of attorney's fees to Ms.

[00:00:58] Speaker 02:
Cornell was improper.

[00:01:00] Speaker 02:
The VA's decision of May 8, 2012, which is in the appendix at 67 to 68, was that Ms.

[00:01:08] Speaker 02:
Cornell met all of the requirements of statute and regulation

[00:01:12] Speaker 02:
based upon a correct interpretation of the controlling statute, which is 5904D.

[00:01:19] Speaker 02:
That decision was issued on May 8.

[00:01:22] Speaker 02:
That decision was mailed to both Ms.

[00:01:24] Speaker 02:
Cornell and to Mr. Moberly and included appellate rights notices.

[00:01:32] Speaker 02:
The Veterans Court in this case correctly decided that the board's finding that the

[00:01:41] Speaker 02:
a case did not involve a simultaneously contested claim was incorrect and set that aside.

[00:01:47] Speaker 02:
That should have been the end of the appeal.

[00:01:51] Speaker 02:
The reason that that should have been the end of the appeal is, is that there is only one decision by the VA that can be appealed relative to contesting whether or not Ms.

[00:02:05] Speaker 02:
Cornell was entitled to those fees.

[00:02:07] Speaker 02:
The VA originally decided that she was entitled to those fees.

[00:02:11] Speaker 02:
waited 60 days for a notice of disagreement.

[00:02:14] Speaker 02:
No notice of disagreement was received.

[00:02:16] Speaker 02:
That would have initiated a simultaneously contested claim under the provisions of 7105, capital A. Can I just stop you?

[00:02:26] Speaker 04:
Can we just sort of remove ourselves from all the citations or whatever?

[00:02:30] Speaker 04:
In this circumstance, the DAB wasn't allowed to get fees.

[00:02:34] Speaker 04:
What would have happened hypothetically if she had hired another lawyer?

[00:02:38] Speaker 04:
another lawyer that was charging a rate.

[00:02:42] Speaker 04:
And so we had two lawyers here, one pot of money for legal fees and two lawyers disputing which one of them was entitled.

[00:02:51] Speaker 04:
Is there any doubt in your mind that the entitlement went to the second lawyer who represented her during this proceeding and not to your client?

[00:03:00] Speaker 02:
Yes, there is, Your Honor.

[00:03:01] Speaker 02:
I believe that my client was entitled to the fees and that the VA made the correct decision.

[00:03:06] Speaker 02:
But to answer your question relative to whether or not it would make any difference if there was a competing attorney, the answer is no, because there is only one way to contest a favorable decision by the VA or an unfavorable decision on the entitlement to fees under 5904.

[00:03:23] Speaker 02:
And the issue of entitlement to fees is whether or not you meet the requirements to have the fee that was, excuse me, the past few benefits that were withheld

[00:03:33] Speaker 02:
paid by the VA to the representing attorney.

[00:03:37] Speaker 02:
The VA made a decision.

[00:03:39] Speaker 02:
That decision is subject to review only under the provisions of 71

[00:03:45] Speaker 02:
05 A, whether there was another attorney or not.

[00:03:48] Speaker 01:
Are you familiar with this circumstance occurring with any sort of frequency?

[00:03:54] Speaker 01:
I mean, I'm just trying to get a sense of how often something like this happens, where the VA provides a portion of a veteran's award to an attorney who no longer represents the veteran and then the attorney claims that they're entitled to keep that money.

[00:04:11] Speaker 01:
How often does that occur?

[00:04:13] Speaker 02:
In my experience, it happens often.

[00:04:17] Speaker 02:
I'm not sure how often compares to the total number of cases.

[00:04:21] Speaker 02:
But the reality is that because these cases take so long, there is often a discharge of the attorney, either withdrawal, as in this case, or a discharge out of frustration by the veteran.

[00:04:36] Speaker 02:
And moving on to potentially another counsel or to being represented by the

[00:04:43] Speaker 02:
a service organization.

[00:04:44] Speaker 02:
What needs to be understood here is that the law is controlled under 5904.

[00:04:50] Speaker 02:
5904 dictates when the Secretary is obligated to withhold from past due benefits and pay a fee.

[00:04:59] Speaker 02:
The Secretary made a 501A decision that Ms.

[00:05:04] Speaker 02:
Cornell was entitled to that fee.

[00:05:06] Speaker 02:
There is a procedure for the veteran to contest whether that was a correct decision.

[00:05:12] Speaker 02:
and that procedure is outlined in seventy one oh five capital a it is not here is the agency once it issues its decision it can never change its mind and realize that it erred not under the facts and circumstances of this case i do not believe because if a regional office issues a denial of benefits decision

[00:05:40] Speaker 03:
decides to go back six months.

[00:05:41] Speaker 03:
Suismonte, on its own, decides to go back and look at its rating decision on its own without any objection by the veteran or the like, and issues a new decision.

[00:05:52] Speaker 03:
You don't think they have the authority to do that?

[00:05:53] Speaker 02:
No, they do not, Ron.

[00:05:55] Speaker 02:
And the reason that... I mean, come on.

[00:05:57] Speaker 03:
That is... Why are you making that argument?

[00:05:59] Speaker 03:
That's completely against the interest of all the veterans you make.

[00:06:03] Speaker 03:
I'm sure the VA, if it goes back and sends out a new award decision saying, look, we made a mistake, we deny based upon these facts, we don't think that that was correct, we're giving a new one.

[00:06:16] Speaker 03:
Are you going to say that that's an illegitimate exercise of the secretary's authority?

[00:06:22] Speaker 02:
Yes, I am, Your Honor.

[00:06:23] Speaker 02:
And the reason for that is that this Court decided in Mason that a contest of a fee was a simultaneously contested client.

[00:06:34] Speaker 03:
Let me ask you this.

[00:06:36] Speaker 03:
Suppose you take on a new client.

[00:06:39] Speaker 03:
That has previously been represented by an attorney on another separate claim.

[00:06:44] Speaker 03:
That attorney already got all the 20% they're entitled from the back due benefits of that claim.

[00:06:50] Speaker 03:
You get new benefits for that attorney, or for the veteran.

[00:06:55] Speaker 03:
You get new benefits for your new client.

[00:06:58] Speaker 03:
OK.

[00:06:58] Speaker 03:
The VA makes a mistake and pays the 20 percent to the former attorney.

[00:07:03] Speaker 03:
How do you get back those benefits, your attorney fees?

[00:07:06] Speaker 03:
Because clearly, you're not going to just say the VA's decision is okay.

[00:07:11] Speaker 02:
That's a terrific hypothetical because therein lies the problem.

[00:07:16] Speaker 02:
The VA has, since the Skates decision, been on notice that it's their responsibility to deal with fee decisions in the first instance.

[00:07:26] Speaker 02:
That's what happens here.

[00:07:28] Speaker 03:
And there are no... Sir, can you answer my question?

[00:07:31] Speaker 03:
If the VA makes a mistake, pays the portion of the past few benefits it's owing to the attorney to the wrong attorney, how would you personally seek your money from the VA?

[00:07:43] Speaker 02:
I have no remedy.

[00:07:45] Speaker 02:
And the reason that I have no remedy is that my fee agreements are non-withholding fee agreements.

[00:07:52] Speaker 02:
under 5904.

[00:07:53] Speaker 03:
Don't avoid my hypothetical.

[00:07:55] Speaker 03:
Let's assume it's the same kind of withholding fee agreement, and the VA improperly pays it over to the wrong person, and they were obligated to pay it to you.

[00:08:04] Speaker 03:
How would you do it?

[00:08:05] Speaker 02:
In that case, I have to file a simultaneously contested claim under 7105, capital A, under this Court's decision in Mason.

[00:08:12] Speaker 03:
And how do you do that?

[00:08:12] Speaker 03:
Do you file a notice of disagreement?

[00:08:13] Speaker 02:
I file a notice of disagreement with the VA, and that starts the process to appeal that

[00:08:20] Speaker 02:
unfavorable decision.

[00:08:21] Speaker 03:
And even if there's not an attorney on the other side of this dispute, a veteran could file a notice of disagreement saying, I wasn't represented by this attorney.

[00:08:31] Speaker 03:
The fees shouldn't have gone to her.

[00:08:33] Speaker 03:
I should have gotten 100 percent.

[00:08:35] Speaker 02:
That's correct, Your Honor.

[00:08:36] Speaker 02:
Now, now there.

[00:08:37] Speaker 03:
Didn't the veteran file something here?

[00:08:40] Speaker 02:
Yes, but he filed it too late.

[00:08:42] Speaker 03:
Yeah, but didn't, I mean, aren't they allowed to weigh those time deadlines?

[00:08:45] Speaker 02:
I do not believe so, Your Honor.

[00:08:46] Speaker 02:
There is no statutory or regulatory provision for waiver of that timeframe.

[00:08:51] Speaker 03:
And Mr. Mogh... The VA is allowed to waive almost any time deadline that's not jurisdictional.

[00:08:56] Speaker 02:
If you ask for it, but there was never any request for that.

[00:08:59] Speaker 03:
They don't have to ask for it.

[00:09:00] Speaker 03:
The VA can on its own say, wasn't there a suggestion that he didn't even get this in time?

[00:09:08] Speaker 03:
I mean, certainly he was never served on DAV, right?

[00:09:11] Speaker 02:
That's correct.

[00:09:12] Speaker 02:
That's correct.

[00:09:12] Speaker 02:
But there are.

[00:09:13] Speaker 03:
Let's just assume the timeliness issue is out the door, that they can accept an untimely filing if they want to.

[00:09:20] Speaker 03:
I can't imagine that this Court would ever say some kind of regulatory filing like this is mandatory interstitial, particularly when the time to appeal to the Veterans Court is limited.

[00:09:28] Speaker 02:
But what this Court has said, that with respect, Your Honor, you are not focused on, is the Mason case that says that when you file such a notice of disagreement, even if it's accepted out of time,

[00:09:41] Speaker 02:
then the obligation is on the VA to issue a statement of the case.

[00:09:47] Speaker 02:
The VA never issued a statement of the case.

[00:09:49] Speaker 03:
So do we still have a pending unadjudicated case then?

[00:09:52] Speaker 03:
Because we have a notice of disagreement with no statement of the case?

[00:09:56] Speaker 03:
Do you want us to send it back to the VA to issue a statement of the case telling your client she owes them this money back?

[00:10:04] Speaker 03:
I mean, we can do that.

[00:10:07] Speaker 02:
But you can't do that with respect, Your Honor, because the VA took action after the Board decision in this case to make Mr. Moberly whole.

[00:10:17] Speaker 02:
So both Mr. Moberly has been paid and Ms.

[00:10:20] Speaker 02:
Cornell has been paid.

[00:10:21] Speaker 02:
There is no longer anything to send back.

[00:10:24] Speaker 03:
Well, they're still appending under your view that the VA hasn't properly responded to notice of disagreement.

[00:10:31] Speaker 03:
They're still appending an adjudicated claim about

[00:10:34] Speaker 03:
entitlement to attorneys fees?

[00:10:36] Speaker 02:
There is a pending appeal, potentially, and I argued that below when we were put on notice before the oral argument, that the VA had not given notice to the DAV.

[00:10:51] Speaker 02:
But the fact of the matter is, is all of that, all that would have done

[00:10:55] Speaker 02:
is to send it back there for completion of that appeal process for the VA to issue a statement of the case.

[00:11:02] Speaker 03:
Can I just ask you this?

[00:11:02] Speaker 03:
Has the VA attempted to get this money back from your client?

[00:11:07] Speaker 02:
They attempted to do so in December of 2012 by telling... But they just sent her a letter, right?

[00:11:13] Speaker 02:
That's right.

[00:11:13] Speaker 03:
And they told her to pay it to the veteran, not give it back to them.

[00:11:15] Speaker 02:
Well, they told her to settle up with the veteran.

[00:11:18] Speaker 02:
And that's all they did.

[00:11:19] Speaker 03:
Since they've now paid the veteran, have they tried in any way to get this money back from her?

[00:11:24] Speaker 02:
No, sir.

[00:11:25] Speaker 03:
Why isn't this all moot, then, until they actually try to recoup the money?

[00:11:31] Speaker 02:
Because there is a decision by the Veterans Court that says that the board correctly decided the issue.

[00:11:39] Speaker 02:
And the board did not correctly decide the issue because the board had no jurisdiction.

[00:11:43] Speaker 03:
But there's no real injury until they try to get the money back.

[00:11:46] Speaker 02:
There most certainly is an injury.

[00:11:48] Speaker 02:
There is a published opinion with my client's name on it that says that she improperly accepted a fee that was based upon a made decision that told her that she met all of the requirements, the 60 days went by, and after the 60 days, they sent her the money.

[00:12:06] Speaker 02:
And how is she supposed to respond other than to accept the VA at his word?

[00:12:14] Speaker 03:
if the if ms i mean if she's fulfilling her ethical duties she's supposed to send the money back because she knew her the agreement did not cover the td i you proceed you know your honor if if that she's in a letter to the to the to the veterans saying we need to do a new agreement to cover this so i can

[00:12:30] Speaker 03:
didn't she?

[00:12:31] Speaker 03:
It's in the record.

[00:12:32] Speaker 02:
No, no.

[00:12:33] Speaker 02:
What's in the record is she sent a letter to the veteran saying she believed incorrectly that there was nothing further to pursue and that she was withdrawing from further representation.

[00:12:44] Speaker 03:
There's another letter after, there's some discussion after she received the money that he signed a new agreement.

[00:12:54] Speaker 03:
The government can point that to me if you're not aware of it.

[00:12:57] Speaker 03:
That's what I read in the record.

[00:12:59] Speaker 02:
do you have a citation?

[00:13:01] Speaker 02:
No, I don't.

[00:13:02] Speaker 02:
I mean, it's your job to know the record, it's not mine.

[00:13:04] Speaker 02:
Well, and I'm sorry, I do not recall that letter being part of the litigation.

[00:13:09] Speaker 03:
I'm not sure if it's a letter or if it was a phone call that's noted.

[00:13:13] Speaker 02:
Oh, okay.

[00:13:14] Speaker 04:
Well, it's 10x145, I believe.

[00:13:28] Speaker 04:
where she offered to send, this is in 2012 I think, she offers to send him paperwork to get back on the case.

[00:13:38] Speaker 02:
At 1.45.

[00:13:41] Speaker 02:
What I have at 1.45 is a document dated October 30th from Mr. Moberly that was signed by him to a Mr. KNABE

[00:13:58] Speaker 04:
Look at 144.

[00:14:00] Speaker 04:
Oh, 144.

[00:14:01] Speaker 02:
I'm sorry.

[00:14:03] Speaker 04:
I thought you said 145.

[00:14:04] Speaker 04:
I received your letter of September 23 regarding the appeal.

[00:14:12] Speaker 04:
We can ask the government to clarify.

[00:14:14] Speaker 04:
I think there is.

[00:14:15] Speaker 04:
My recollection is the same as Judge Hughes.

[00:14:25] Speaker 00:
It's on this page at JA 145.

[00:14:28] Speaker 00:
Fifth paragraph down.

[00:14:34] Speaker 01:
Says the appellant who had closed my file many months earlier contacted my wife by phone and asked us what was going on because she had received money.

[00:14:41] Speaker 01:
After realizing we were unaware of this, she said she wanted to send paperwork for me to sign to get her back on the case.

[00:14:47] Speaker 01:
We advised her that I already had a representative and would not sign anything.

[00:14:51] Speaker 01:
That was the last time we heard from her.

[00:14:54] Speaker 02:
And that is representation by Mr. Moberly of what

[00:14:57] Speaker 02:
was supposedly said in a telephone conversation.

[00:15:00] Speaker 02:
That is not documentation of what she said other than, and this is apparently strictly from Mr. Moberly about what happened in a phone call, not something that is documented where she did that.

[00:15:15] Speaker 02:
But even if she did do that and had that phone conversation, the point here is, is that there is a final decision that was up until the December

[00:15:27] Speaker 02:
2012 letter not subject to a notice of disagreement.

[00:15:31] Speaker 02:
Ms.

[00:15:32] Speaker 02:
Cornell had no knowledge of a notice of disagreement before the letter of December 2012.

[00:15:38] Speaker 02:
The statute, 7105A.

[00:15:43] Speaker 01:
So your concern is that there is a final decision by the court below that says that she is not entitled to keep this money.

[00:15:51] Speaker 02:
No.

[00:15:52] Speaker 02:
That there is a final decision that says she was entitled to the money.

[00:15:55] Speaker 02:
That final

[00:15:56] Speaker 02:
decision happened in May of 2012, and she was not put on notice of a notice of disagreement with that decision, I think what you're confusing, Your Honor, is there is a February 2013 decision in which the VA makes a new decision, as Judge Hughes was describing.

[00:16:16] Speaker 02:
That is a decision that is in complete opposition to the original decision, which was presumptively final until there was a notice of disagreement.

[00:16:26] Speaker 02:
The plain language of 7105B says that upon the filing of a notice of disagreement, all parties in interest will be furnished a statement of the case in the same manner as prescribed in Section 7105.

[00:16:39] Speaker 01:
I was talking about the decision of the Court of Appeals for Veterans Claims.

[00:16:44] Speaker 01:
Oh, I'm sorry.

[00:16:45] Speaker 01:
It was dated December 2016, and it says that your client

[00:16:50] Speaker 01:
is not entitled to keep the $20,000.

[00:16:52] Speaker 01:
That's correct.

[00:16:54] Speaker 01:
And you're saying that is the basis for why your client still has an interest in this case.

[00:16:59] Speaker 02:
Yes, Your Honor.

[00:17:00] Speaker 02:
Because there is no agency decision that was appealed to the board.

[00:17:05] Speaker 01:
I understand what your argument is.

[00:17:07] Speaker ?:
So

[00:17:07] Speaker 01:
What about the ethical obligations of the state of Illinois?

[00:17:11] Speaker 01:
Does that apply here where there's a decision below by the Court of Veterans Claims saying that your client is an attorney who's not eligible to keep this money, these client funds?

[00:17:24] Speaker 02:
Well, Your Honor, there has been no ethical complaint filed by Mr. Moberly, by the VA, by anyone else to the ethics people in the state of Illinois.

[00:17:36] Speaker 02:
based upon the decision of the Veterans Court.

[00:17:40] Speaker 02:
That decision of the Veterans Court is not final until this Court acts.

[00:17:44] Speaker 02:
And this Court must find, as a matter of law, that the decision was final.

[00:17:50] Speaker 02:
The May 2012 decision was final.

[00:17:54] Speaker 02:
You cannot, there is no statutory provision or regulatory provision, no matter how intuitive it would be that the VA would be able to do that.

[00:18:04] Speaker 02:
There is no statute or regulation that provides that.

[00:18:07] Speaker 02:
And what I was trying to explain to Judge Hughes a moment ago was that since the Skates decision in 2002 that imposed this burden on the VA to make these types of decisions, the VA has not promulgated a single regulation to describe the responsibilities of either the VA or the veteran or the attorney.

[00:18:29] Speaker 02:
So there is total confusion in this system

[00:18:33] Speaker 02:
And if we don't go by the rules that are set out by statute, there is no guidance to an attorney or to a veteran as to how to proceed with this.

[00:18:43] Speaker 02:
And there isn't a basis for the conclusion that my client unethically received the fee.

[00:18:50] Speaker 02:
She has a decision from the VA that said she was entitled to the fee.

[00:18:55] Speaker 04:
I see I'm way over my time here.

[00:19:06] Speaker 05:
Good morning, Your Honors.

[00:19:07] Speaker 05:
May it please the Court, before I address the procedural issues that Ms.

[00:19:12] Speaker 05:
Cornell has raised here, I think it's worth underscoring that the Veterans Court, the Board, and the regional office all concluded that Ms.

[00:19:20] Speaker 05:
Cornell was not entitled to attorney fees to be paid from her former client's TDIU award because she did not raise or in any way contribute to that award.

[00:19:29] Speaker 05:
That decision is

[00:19:32] Speaker 05:
It's a factual finding that's not subject to this court's review, but is amply supported by the record and the statutes and regulations that issue here.

[00:19:41] Speaker 03:
Can I just ask you this?

[00:19:42] Speaker 03:
I mean, so you get the final decision, the incorrect decision that gave her money.

[00:19:50] Speaker 03:
He files a notice of disagreement.

[00:19:52] Speaker 03:
It's late, but they excuse that.

[00:19:55] Speaker 03:
You issue a new decision.

[00:19:57] Speaker 03:
Apparently, you didn't issue a document called a statement of a case to her, which you probably should have, right?

[00:20:04] Speaker 03:
But you did issue a letter to her.

[00:20:07] Speaker 05:
So maybe it would be helpful to sort of back up and explain the way that in an ideally perfect world, this should have worked.

[00:20:16] Speaker 05:
There was the initial letter to both Ms.

[00:20:20] Speaker 05:
Cornell and to Mr. Moberly that VA was intending to withhold the 20% from his award.

[00:20:28] Speaker 05:
nothing happens, and then there's the notice that the money is actually going to be paid to her.

[00:20:35] Speaker 05:
That notice was not served on Mr. Moberly's new representative, but as Ms.

[00:20:42] Speaker 05:
Cornell conceded below and as the

[00:20:45] Speaker 05:
Veterans Court found, it was timely if you went by the actual notice to the representative.

[00:20:52] Speaker 05:
So any suggestion that the notice of disagreement by Mr. Moberly was untimely and therefore somehow cut off the appeal stream is just simply not the premise of this.

[00:21:04] Speaker 05:
And that's the only premise that we're not analyzing here.

[00:21:07] Speaker 03:
And then afterwards, she complained at some point, and the VA issued a new decision.

[00:21:11] Speaker 05:
The VA issued a new decision.

[00:21:13] Speaker 03:
And that's the decision.

[00:21:14] Speaker 03:
she complains is illegitimate.

[00:21:17] Speaker 05:
So there were two letters that were sent.

[00:21:19] Speaker 05:
There was a letter sent in December 2012.

[00:21:22] Speaker 05:
Subsequently, and that's the letter where VA says, essentially, you need to resolve this with your former client.

[00:21:30] Speaker 05:
Subsequent to that, in February, VA issues a new decision that says, we've determined that you're not eligible.

[00:21:38] Speaker 05:
Ms.

[00:21:38] Speaker 05:
Cornell files a timely notice of disagreement of that.

[00:21:41] Speaker 05:
Both parties have the opportunity to present their arguments

[00:21:45] Speaker 05:
about whether she was in fact eligible.

[00:21:49] Speaker 05:
Any procedural misstep that the VA took at that point has been fully remedied by Ms.

[00:21:55] Speaker 05:
Cornell's ability to make the arguments to the VA.

[00:21:59] Speaker 05:
She herself is an attorney.

[00:22:01] Speaker 05:
She was represented by counsel.

[00:22:03] Speaker 05:
And so then we end up with that being appealed to the board.

[00:22:07] Speaker 05:
There's really no question under SCATES and under this court's jurisdiction that the board had authority to

[00:22:15] Speaker 05:
to review whether Ms.

[00:22:17] Speaker 05:
Cornell was eligible for these fees, same as the Veterans Court.

[00:22:21] Speaker 05:
So to the extent that Ms.

[00:22:23] Speaker 05:
Cornell is arguing that there's some sort of problem with the simultaneously contested claim procedure, that question is answered by Mr. Moberly's notice of disagreement that the RO found was timely filed and that Ms.

[00:22:36] Speaker 05:
Cornell conceded, in fact, at page five of her opening brief.

[00:22:40] Speaker 05:
that it was timely filed.

[00:22:42] Speaker 04:
So if there's an affirmance in this case, the VA has not yet sought recruitment of the fees that have already been paid out to Miss Cornell.

[00:22:51] Speaker 04:
That is correct.

[00:22:51] Speaker 04:
Are they waiting for this issue to be resolved?

[00:22:56] Speaker 05:
To some extent, that is probably correct.

[00:22:58] Speaker 05:
And I don't know that the VA has made any specific determination about how or whether it will do that, but it does have various debt collection procedures that it can use.

[00:23:07] Speaker 03:
Do you know what they are?

[00:23:11] Speaker 05:
I don't off the top of my head.

[00:23:13] Speaker 04:
Well, the VA hasn't gone to her and said you are required to pay back this money, or has that?

[00:23:23] Speaker 05:
In December 2012, the VA did send a letter saying, well, no.

[00:23:27] Speaker 03:
That's the letter that said you should send it to the veteran.

[00:23:30] Speaker 05:
Yeah, so let me back up.

[00:23:31] Speaker 05:
There's no letter at which point the VA said you need to pay this money back to the VA.

[00:23:36] Speaker 05:
And again, I think that's in part because Ms.

[00:23:39] Speaker 05:
Cornell continues to challenge whether she

[00:23:41] Speaker 05:
is in fact eligible for these fees.

[00:23:43] Speaker 05:
But assuming that the court were to affirm the Veterans Court's decision, then the VA could be free to use whatever debt collection procedures are available to the United States to collect that money were she not to return it to the VA on her own accord.

[00:23:59] Speaker 03:
Your friend suggests that this happens all the time.

[00:24:01] Speaker 03:
Is the VA aware of this happening on other occasions?

[00:24:06] Speaker 05:
Candidly, I think it probably does happen on occasion, because there is this fee agreement that's been filed with the VA.

[00:24:14] Speaker 05:
And there's not necessarily any.

[00:24:17] Speaker 05:
So sometimes the attorney will tell the VA, I'm no longer representing this person, or I'm waiving the fees, or something like that.

[00:24:24] Speaker 05:
Or as in the case with skates, you had two attorneys representing the same client during various portions of the claim.

[00:24:33] Speaker 05:
And then there is a question about which

[00:24:36] Speaker 05:
which attorney gets what percentage and what's reasonable and what's not reasonable.

[00:24:40] Speaker 05:
It's clearly not reasonable for an attorney who had terminated the attorney-client relationship and whose work contributed in no way to the TDIU claim to continue to have accepted money or to be eligible for any attorney fee award in this case.

[00:24:57] Speaker 04:
Well, the policy concern here is evident.

[00:24:59] Speaker 04:
It's from the other end, which is any lawyer taking a case for a veteran now

[00:25:05] Speaker 04:
is going to have to look three ways.

[00:25:08] Speaker 04:
I mean, if there's a history of this veteran having been, what is someone to do to make sure they don't get caught up in this, and therefore, if they prevail, they won't get attorney's fees?

[00:25:18] Speaker 04:
Do they have to go back historically to all the representation that their current client has had?

[00:25:25] Speaker 04:
Do they have to look at the VA and make sure there are no outstanding fee agreements on file?

[00:25:32] Speaker 04:
To me, that's the problem here.

[00:25:35] Speaker 04:
it would, I mean, arguably really discourage anyone from ever taking a case.

[00:25:41] Speaker 04:
Because even if they prevail, they're going to not get the fees because somebody else is going to get them.

[00:25:48] Speaker 05:
I'm not sure that that's any, you know, that I think is just a consequence of practicing law and a client who is free to change their counsel if they want to.

[00:26:01] Speaker 05:
I think part of the purpose of waiting those 60 days before

[00:26:04] Speaker 05:
the 20% is released to the attorney is for the claimant and the attorney and any other interested party to file their notice of disagreement.

[00:26:13] Speaker 03:
This is not normal practice if the new attorney takes over representation that the attorney sends in that representation to the VA?

[00:26:21] Speaker 05:
Right.

[00:26:22] Speaker 05:
I mean, they should be... I mean, in fact, under this provision, the VA can't make any direct payments without that agreement being

[00:26:31] Speaker 03:
So for at least attorneys that are going to get paid, that happens.

[00:26:34] Speaker 03:
But what about these service organizations?

[00:26:36] Speaker 03:
Do they not routinely send in representation agreements saying, we're now representing?

[00:26:42] Speaker 05:
They do.

[00:26:44] Speaker 05:
And that happened in this case.

[00:26:46] Speaker 03:
And it's just an unfortunate system.

[00:26:49] Speaker 05:
Right.

[00:26:51] Speaker 05:
I guess then just to add a little further context to the court's inquiry, what we didn't talk about is, of course, that aside from the regional office having

[00:27:00] Speaker 05:
jurisdiction to make initial eligibility determinations, the Office of General Counsel also will review fee agreements for excessiveness and reasonableness.

[00:27:10] Speaker 05:
And that could also include disputes between two attorneys who may have both participated in providing the client services that led to an award.

[00:27:24] Speaker 05:
So again, the notion that the VA has not

[00:27:27] Speaker 05:
promulgated regulations identifying which part of VA does what is simply not true.

[00:27:38] Speaker 05:
That's 38 CFR 14.636 as we cited in our brief that provides both what the responsibilities of the OGC is and the responsibility of the agency of original jurisdiction which in this case is the regional office.

[00:27:54] Speaker 05:
For these reasons, we would respectfully request that the court affirm the judgment of the Veterans Court.

[00:27:58] Speaker 05:
Thank you.

[00:28:00] Speaker 04:
We have three minutes if you need it.

[00:28:05] Speaker 02:
Your Honor, the government suggests that any procedural misstep that may have been made was remedied.

[00:28:11] Speaker 04:
Hold on.

[00:28:11] Speaker 04:
The clock is going in the wrong direction.

[00:28:14] Speaker 04:
Sorry.

[00:28:15] Speaker 04:
Three minutes.

[00:28:17] Speaker 04:
Three, please.

[00:28:17] Speaker 04:
Thank you.

[00:28:23] Speaker 02:
The government suggests that any misstep, procedural misstep, was remedied.

[00:28:27] Speaker 02:
Well, what the government doesn't do is to cite to any authority for that proposition.

[00:28:32] Speaker 02:
There is no statute.

[00:28:33] Speaker 02:
There is no regulation that was either enacted by Congress or promulgated by the Secretary that addresses the type of procedural misstep that happened in this case.

[00:28:46] Speaker 02:
And that procedural misstep was that she was put on notice that she

[00:28:51] Speaker 02:
requirements and was entitled to the fee and then was sent the fee.

[00:28:57] Speaker 02:
Within that, under the appropriate statute, which is 7105A, that statute requires a notice of disagreement within 60 days.

[00:29:08] Speaker 02:
No notice of disagreement was received by the VA within that 60 days, so the VA released the money.

[00:29:14] Speaker 02:
That is their policy and their procedure.

[00:29:17] Speaker 02:
But there is no statutory authority for doing that.

[00:29:21] Speaker 02:
That, then, as you correctly observed, Chief Judge Prost, is that policy problem in this case with handling cases on an ad hoc basis to try to correct the problem on the fly.

[00:29:35] Speaker 02:
There is a particular, there is a specific statute, and once that statute is triggered by the receipt of a notice of disagreement, and they received a notice of disagreement, they were obligated to send all parties at interest, including my client, Ms.

[00:29:50] Speaker 02:
Cornell,

[00:29:51] Speaker 02:
a statement of the case.

[00:29:53] Speaker 02:
That statement of the case then required within 30 days a completion of an appeal with a substantive appeal or a VA form 9.

[00:30:01] Speaker 02:
That never happened.

[00:30:03] Speaker 02:
There was no statement of the case in response to that notice of disagreement that was originally sent or, excuse me, that was sent in by the DAV.

[00:30:13] Speaker 02:
The statement of the case that was issued in this case was the result of Ms.

[00:30:18] Speaker 02:
Cornell having to go to the Veterans Court

[00:30:20] Speaker 02:
a writ of mandamus to compel them to issue a statement of case in response to her notice of disagreement.

[00:30:28] Speaker 02:
And instead, they gave a statement of the case in response to Mr. Moberly's notice of disagreement.

[00:30:36] Speaker 02:
Even if that statement of case were valid, Mr. Moberly, in order to procedurally complete his appeal, had to file a substantive appeal within 30 days of the receipt of that.

[00:30:48] Speaker 02:
Ms.

[00:30:48] Speaker 02:
Cornell did on her issues pointing out what she filed a notice of disagreement with and that Mr. Moberly has not filed a substantive appeal.

[00:30:59] Speaker 02:
So procedurally, this case ended when the board incorrectly determined that this was not a simultaneously contested claim.

[00:31:11] Speaker 02:
The Veterans Court got that right.

[00:31:13] Speaker 02:
The Veterans Court then proceeded where they had no authority to proceed.

[00:31:18] Speaker 02:
because there was not a decision that was properly appealed to implicate under 7104 the jurisdiction of the board for the board to make a decision.

[00:31:28] Speaker 02:
In order to do that, they had to have a statement of the case and a VA-9 following the notice of disagreement that they accepted out of time.

[00:31:38] Speaker 02:
Therefore, the VSO attempt to do this didn't succeed.

[00:31:43] Speaker 02:
And now Ms.

[00:31:44] Speaker 02:
Cornell is faced in position, as are all other attorneys, of not knowing what the rules are, other than understanding that 7105 controls these types of cases.

[00:31:55] Speaker 02:
And it either does or it doesn't.

[00:31:57] Speaker 02:
If it does, the Veterans Court was wrong.

[00:31:59] Speaker 04:
Thank you.

[00:32:00] Speaker 02:
Thank you very much.

[00:32:00] Speaker 04:
We thank both sides, and the case is submitted.

[00:32:04] Speaker 04:
The next case.