[00:00:00] Speaker 00:
May it please the court, Kenneth Carpenter appearing on behalf of my employer, Carpenter Chartered.

[00:00:04] Speaker 00:
Carpenter Chartered is the petitioner in this matter and I will begin with the issue of standing.

[00:00:10] Speaker 00:
Carpenter Chartered's standing is established as both self-evident and as third party standing.

[00:00:18] Speaker 00:
The concept of self-evident is, in the view of Carpenter Chartered, clear in this case because of the very nature

[00:00:28] Speaker 00:
of the practice that is maintained by Carpenter Chartered.

[00:00:34] Speaker 02:
Mr. Carpenter, I'm sorry.

[00:00:36] Speaker 02:
Just for purposes of time, could you just go right to specific examples of why you have standing or why your firm has standing?

[00:00:48] Speaker 00:
Yes, Your Honor.

[00:00:49] Speaker 00:
And if I can begin with a generality, I believe that each and every client that Carpenter Chartered represents is faced by the procedural problems that are presented by each of the rules that have been challenged in this case.

[00:01:05] Speaker 00:
And that, in our view, is an important basis to understand

[00:01:12] Speaker 00:
that what the AMA did was to change the structural process and create a new set of procedures that all claimants are affected by.

[00:01:22] Speaker 00:
And each and every claimant that is represented by Carpenter Charter is affected by the delays from these defective regulations which we are asking the court to invalidate.

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The specifics

[00:01:40] Speaker 00:
of each are addressed in our supplemental briefing and in our declarations.

[00:01:49] Speaker 03:
Mr. Carpenter, does it make a difference that Carpenter Charter is a law firm representing legal interests as opposed to, let's say, some of these other national organizations we've been hearing this morning that represent the policy or the advocacy

[00:02:09] Speaker 03:
interests of their members.

[00:02:13] Speaker 00:
Well, in one respect I believe that it does, Your Honor, and I believe that that difference is that each and every client of Carpenter Chartered who has a claim with the Department of Veterans Affairs is profoundly affected by these rules and that that only enhances the standing of Carpenter Chartered because it is in the best possible position

[00:02:38] Speaker 00:
based upon its breadth of experience and length of experience in working within the VA system prior to these changes to understand the impact of those changes in law and the impact that these proposed regulations that are being challenged in this position have.

[00:02:58] Speaker 04:
Yes, Your Honor.

[00:03:01] Speaker 04:
Originally you had said

[00:03:03] Speaker 04:
Basically, you should have standing because we should treat you as if you were in NOVA or PVA or the other organizations, correct?

[00:03:11] Speaker 00:
Yes, Your Honor.

[00:03:12] Speaker 04:
And so that's the same type of argument you're making now.

[00:03:15] Speaker 04:
And when you say self-evident, I think, aren't you trying to say that it's self-evident for you to have standing as an organization, organizational standing?

[00:03:26] Speaker 04:
Well, terminology matters here because of the way the cases come down.

[00:03:31] Speaker 04:
And there's a concept of organizational standing.

[00:03:35] Speaker 00:
Yes.

[00:03:36] Speaker 00:
Yes, Your Honor.

[00:03:37] Speaker 00:
And in the context that a law firm is an organization that is organized for the purpose of representing.

[00:03:44] Speaker 04:
The one thing you're not claiming is associational standing because you don't have any members, right?

[00:03:50] Speaker 00:
That's correct, Your Honor.

[00:03:52] Speaker 04:
OK.

[00:03:52] Speaker 04:
Now, in terms of the argument you're making based on your firm, which I'll grant you is a firm of specialty, then your argument would go that any specialized firm that has decent range of clients would have standing to challenge any regulations of any agency that borrows on their client's health.

[00:04:15] Speaker 00:
Correct?

[00:04:15] Speaker 00:
That would be correct, Your Honor.

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And it's especially important in this area.

[00:04:19] Speaker 00:
The generality that you just described I think is true, but it's even more enhanced in the context of the business that is done by the Department of Veterans Affairs.

[00:04:32] Speaker 02:
Mr. Carpenter, this is Judge Chen.

[00:04:34] Speaker 00:
Yes, sir.

[00:04:35] Speaker 02:
Are you aware of a case in which a private law firm was able to establish standing through an organizational standing theory?

[00:04:50] Speaker 00:
Not directly, Your Honor.

[00:04:52] Speaker 00:
There have been a couple of cases that talk about why a law firm should or should not be represented, and in the one case in which it was rejected, the court reasoned that it was more in the hypothetical range than in the realistic range.

[00:05:15] Speaker 04:
Does that case have a name, Mr. Covenan?

[00:05:19] Speaker 00:
It does, Your Honor, but I apologize.

[00:05:21] Speaker 00:
It's gone right out of my head.

[00:05:23] Speaker 04:
It wasn't cited in your brief?

[00:05:26] Speaker 00:
Yes, it is cited in our supplemental brief, Your Honor.

[00:05:30] Speaker 04:
Okay.

[00:05:31] Speaker 04:
I'm sorry, I just... If it's cited, I'll find it.

[00:05:36] Speaker 00:
Yes, it is cited, Your Honor.

[00:05:38] Speaker 00:
And as I recall, the basis for the rejection of the law firm having standing in that case was because the

[00:05:48] Speaker 00:
allegation or representation of standing was based upon a hypothetical or theoretical circumstance rather than an actual circumstance.

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That is not the case here.

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Carpenter Chartered has more than 900 matters appearing before the agency, the Veterans Court and this court that are affected by these very rules.

[00:06:13] Speaker 00:
And it is not only the operation of Carpenter Chartered

[00:06:16] Speaker 00:
that is affected by those rules, but far more importantly, the clients that we represent and the impediments that are created by rules that create the unnecessary delay because these rules on their face are invalid, that they are inconsistent with the intent of Congress as expressed in the AMA and go way beyond

[00:06:42] Speaker 00:
anything that Congress intends.

[00:06:44] Speaker 04:
Well, that goes to the merits, Mr. Kermit, and we might disagree with you.

[00:06:48] Speaker 00:
Oh, I'm sorry, Your Honor.

[00:06:50] Speaker 04:
I was only trying to make that... I don't think your argument on standing is hinged on the necessity for us to find the regulations invalid.

[00:07:01] Speaker 04:
You're saying the regulations are sudden to challenge under 502 and that that's enough.

[00:07:06] Speaker 00:
Yes, Your Honor.

[00:07:08] Speaker 04:
You don't need to over-argue your case.

[00:07:11] Speaker 00:
And I'm sorry, I didn't mean to.

[00:07:13] Speaker 00:
I was simply trying to offer that as an example.

[00:07:19] Speaker 04:
Let's take a specific example, however.

[00:07:21] Speaker 04:
One of your challenges is to 38 CFR 14636 directly in ball speed.

[00:07:28] Speaker 04:
We have a previous presidential case in which you were granted standing a challenge of regulation that impaired your fees and your allegations, and there was personal harm.

[00:07:39] Speaker 04:
So I would assume that you're making an even more specific argument with regard to 14636.

[00:07:50] Speaker 00:
We are, Your Honor.

[00:07:51] Speaker 00:
And do you want to go to the merits of that, or are we still on the standing?

[00:07:56] Speaker 04:
No, I just wanted to distinguish that you are not making what I would call a more general argument in terms of standing there.

[00:08:03] Speaker 04:
Oh, no, Your Honor, I am not.

[00:08:04] Speaker 04:
The person that is harmed is harming and charging, correct?

[00:08:08] Speaker 00:
in the context of that specific regulation and then... Yes, Your Honor.

[00:08:14] Speaker 02:
Mr. Carpenter, this is Judge Chan.

[00:08:18] Speaker 02:
Just if I could compare your challenge to this particular subsection of this regulation to what MVA was challenging in the earlier appeal as to the ability to collect fees for handling supplemental claims.

[00:08:36] Speaker 02:
Yes, Your Honor.

[00:08:37] Speaker 02:
In that particular case, they had a declarant, someone named Wells, who specifically described how he was precluded from collecting fees for a particular client's supplemental claim.

[00:08:52] Speaker 02:
And so because of that, he was out several thousand dollars.

[00:08:57] Speaker 02:
And I did not see an example like that in your declaration as to how

[00:09:04] Speaker 02:
maybe you were working with a client or was about to work with a particular client, but then there was something about the operation of the regulation you're fighting against, 14.636C2C3, that precluded you from being able to perform that service and collect a fee.

[00:09:25] Speaker 02:
Am I missing something?

[00:09:27] Speaker 00:
No, you're not, Your Honor, and let me try to identify

[00:09:33] Speaker 00:
two separate bases for the adverse effect both on Carpenter Chartered as a law firm and on Carpenter Chartered as the representative of other attorneys who have been in this circumstance.

[00:09:50] Speaker 00:
The circumstance is that this rule has retained prior versions of the statute in the regulation and as a consequence

[00:10:03] Speaker 00:
It does not affect Carpenter Chartered as much because our fees are non withholding fees.

[00:10:14] Speaker 00:
In other words, we don't do our fee agreements under 5904D.

[00:10:19] Speaker 00:
We do our fee agreements under 5904C.

[00:10:22] Speaker 00:
But we represent a number of other attorneys who have had their fees denied

[00:10:29] Speaker 00:
under 5904D because they did not meet the prior requirements of the statute.

[00:10:38] Speaker 02:
Is this laid out somewhere in your declaration?

[00:10:41] Speaker 00:
No, Your Honor, I'm sorry.

[00:10:42] Speaker 00:
It is not.

[00:10:43] Speaker 00:
It seemed to me that that was self-evident with the allegation that was being made and if the court would obtain

[00:10:54] Speaker 00:
and submit such declarations, I'd be happy to do that.

[00:10:57] Speaker 00:
If any omission was a question of time and not realizing that that would have been necessary and or appropriate.

[00:11:09] Speaker 03:
And I... Mr. Carpenter, I wanted you to note that you're into your rebuttal time right now.

[00:11:13] Speaker 00:
I was just about to make that observation, Your Honor, and even though I've not gotten a chance to get to the merits, I would like to reserve the balance of my time to respond to the government.

[00:11:24] Speaker 03:
Okay, thank you.

[00:11:28] Speaker 03:
Mr. Pehai, your turn.

[00:11:32] Speaker 01:
Good morning.

[00:11:32] Speaker 01:
May I please... David Pelkey for the United... Pelkey.

[00:11:36] Speaker 01:
Um, let's start with standing.

[00:11:39] Speaker 01:
I think that the key distinction has already come out right away in the argument is that we are dealing with a law firm here.

[00:11:47] Speaker 01:
And, you know, one question that was asked is how does this

[00:11:50] Speaker 01:
If we start down this path, what are we talking about in terms of application to other types of law firms?

[00:11:55] Speaker 01:
Is it enough that a firm defines itself as dealing with a narrow area of the law, represents people in that area, and now that law can become a super plaintiff to challenge rules and regulations in that area?

[00:12:10] Speaker 01:
So like if you had a firm that specialized in copyright infringement, could it then become a super plaintiff in Title 17 rulemaking for example?

[00:12:20] Speaker 01:
And I think no.

[00:12:22] Speaker 01:
And I think that the reason why is that when you look at the Supreme Court precedents that were cited in the briefs, and you look at the way that these different forms of standing operate from constitutional through to prudential, the courts, especially the Supreme Court, express growing concern and wariness as you move down that path.

[00:12:42] Speaker 01:
And when you get to law firms, it becomes this case, if Carpenter is going to take the third party

[00:12:50] Speaker 01:
don't seem to meet the standard, certainly under association.

[00:12:54] Speaker 01:
I don't think they're claiming that.

[00:12:55] Speaker 04:
Also under organization.

[00:12:59] Speaker 04:
Why don't we treat a law firm as an association?

[00:13:04] Speaker 01:
Because the law firm is representing specific clients.

[00:13:09] Speaker 01:
And those clients are the ones who have the issues.

[00:13:14] Speaker 01:
And the law firms can represent that they have

[00:13:19] Speaker 04:
Right, and NOVA has members who are veterans who have issues, right?

[00:13:28] Speaker 04:
That's the only way NOVA can have standards.

[00:13:34] Speaker 01:
Oh, I... Yeah, I think... Yes, I think that that characterizes NOVA's situation.

[00:13:42] Speaker 03:
I'm not intimately familiar with... Does it make a difference, Mr. Felkey, that...

[00:13:49] Speaker 03:
The way I understand it, associational, organizational standing must show that they have at least one member who would otherwise have standing.

[00:13:59] Speaker 03:
And to me, the word member, I can easily associate that within an organization or association.

[00:14:05] Speaker 03:
I don't see the law firm as part of a member other than their partner.

[00:14:10] Speaker 01:
Right.

[00:14:10] Speaker 01:
And that's precisely the distinction I would make.

[00:14:13] Speaker 03:
Excuse me, can everybody mute the phone unless you're speaking?

[00:14:18] Speaker 03:
We're getting a lot of feedback here.

[00:14:22] Speaker 03:
Thank you.

[00:14:25] Speaker 03:
I'm sorry, Mr. Spelke, was you saying?

[00:14:27] Speaker 01:
Oh, yes, thank you, Your Honor.

[00:14:29] Speaker 01:
I think, and that's the point that I was getting towards and why I think third party standing is really the issue that's probably at the center here with Gartner.

[00:14:38] Speaker 01:
Clients are not members, right?

[00:14:41] Speaker 01:
The weariness that's expressed in the case law for law firms proceeding as founded.

[00:14:48] Speaker 01:
It's not a path that we want to go down.

[00:14:50] Speaker 01:
It drifts further and further from Article 3 standing.

[00:14:53] Speaker 01:
At least in association or organization standing the way they're described in the case law, at least there are members with direct harm.

[00:15:03] Speaker 01:
And that becomes a foundational element of why the organization is able to proceed.

[00:15:08] Speaker 01:
And I think that the bases here, look at the declarations attached to the supplemental brief from Carpenter Charter.

[00:15:19] Speaker 01:
It has clients that are advocating for specific arms that they think that they have.

[00:15:28] Speaker 01:
The standards for third-party standing are what should properly be applied here.

[00:15:32] Speaker 01:
Carpenter Chartered cannot meet direct standing either on an associational or an organizational level.

[00:15:40] Speaker 01:
And its declarations haven't really tried to.

[00:15:43] Speaker 01:
They're very general in terms of the harm to the firm.

[00:15:47] Speaker 01:
I think it was Judge Pannable's distinction between what was in this declaration from Mr. Wells versus Carpenter Chartered.

[00:15:53] Speaker 01:
I mean, when you look at Carpenter Chartered, they're talking generally about

[00:15:57] Speaker 01:
delays, potentially for more work.

[00:16:01] Speaker 01:
Well, you start applying this to law firms.

[00:16:03] Speaker 01:
That's any time there's a change in law.

[00:16:05] Speaker 01:
The law firm might have to do a little more work or research the change, et cetera, et cetera.

[00:16:11] Speaker 01:
And for this to suddenly become the basis for law firms to start leading the charge in the court, the challenge.

[00:16:19] Speaker 04:
So Mr. Peltke, what's the difference between what's wrong with treating a law firm

[00:16:27] Speaker 04:
as an organization.

[00:16:29] Speaker 04:
You know, there is a concept based on the Supreme Court's decision in Haven's Realty, 455 US 363, of something called organizational standing.

[00:16:41] Speaker 04:
You're aware of that?

[00:16:43] Speaker 01:
Yes.

[00:16:44] Speaker 01:
And that's, I believe, that in that case.

[00:16:47] Speaker 04:
So the organizational, why can't any law firm have organizational standing?

[00:16:57] Speaker 01:
Because I think that here, first what we have in the case law from the Supreme Court is developing separate case law for law firms and looking at them differently because they are not organizations.

[00:17:10] Speaker 04:
So read me the cases other than Kaplan and Drysdale that deal with law firm cases.

[00:17:18] Speaker 01:
Right.

[00:17:19] Speaker 01:
We discussed Kowalski at length in our brief as well.

[00:17:22] Speaker 01:
And in Kowalski, the Supreme Court talks about,

[00:17:25] Speaker 01:
the concerns that go hand in hand with prudential standing and looks very closely at the specific problem of law firms.

[00:17:34] Speaker 01:
And the reason why, I would add this, the reason why a law firm presents something that I think requires particular attention from courts on standing when we get into organizational versus third party is because when you think about what a law firm does, it's very easy for it to define itself

[00:17:53] Speaker 01:
in terms of, oh, we're going to do this now.

[00:17:55] Speaker 01:
Oh, no, now we only take clients doing this.

[00:17:57] Speaker 01:
It's a business that's working for clients, representing client interests, and it can choose change and define those how it wants, and then can start generating standing for itself.

[00:18:09] Speaker 01:
Whereas organizations, 501c3s, support organizations, things that have clear mission statements, histories of being involved in lobbying or

[00:18:23] Speaker 01:
direct contact with agency, not just legal representation, but other things.

[00:18:27] Speaker 01:
I mean, there are many levels and indicia that can go with that type of organization that helps support.

[00:18:33] Speaker 04:
Well, you don't deny that there could be a law firm, for example, a public interest law firm that had a mission statement that said, our mission is to stop the federal government from building bridges over rivers unless we can prove that it won't harm the fish.

[00:18:51] Speaker 04:
I don't deny that.

[00:18:53] Speaker 04:
The issue is... You think that law firm should be treated like a general purpose law firm that has specialties?

[00:19:02] Speaker 01:
No, I think that that law firm's standing should be examined under the third party standing rules that have accompanied about every other request that I've seen for law firm standing, which is, look, you have clients.

[00:19:15] Speaker 01:
You say you're representing the interests of clients, if that's your purpose, okay, why can't your clients bring these clients?

[00:19:21] Speaker 01:
And so it asks.

[00:19:22] Speaker 01:
And the law firm can proceed with standing if it shows, look, we have all these clients.

[00:19:29] Speaker 01:
They have Article III standing.

[00:19:31] Speaker 01:
And they're hindered from pursuing their claim.

[00:19:33] Speaker 04:
And then under... So let me pursue that for a second reading off of Kaplan and Drysdale.

[00:19:37] Speaker 04:
Kaplan and Drysdale posits that you have to have constitutional standing to show harm.

[00:19:44] Speaker 04:
And in addition, you have to meet prudential tests.

[00:19:48] Speaker 04:
And they put the third party standing into that prudential test category in that case.

[00:19:54] Speaker 04:
So are you arguing that Carpenter Charter is here, if I'm doing the analogy to Kaplan and Drydale, that even if Carpenter Charter could show personal damage, Article III standing for injury to its business from these regulations,

[00:20:15] Speaker 04:
that still, if it couldn't satisfy third party standing, it still would fall.

[00:20:23] Speaker 01:
No, and I do, I think between Drysdale and Kowalski, there's, you know, whether or not the law firm has to independently have Article III standing.

[00:20:34] Speaker 01:
I think if Carpenter Charter it has can demonstrate standing under legion or, you know,

[00:20:41] Speaker 01:
establish its injury in fact and the other, it could have.

[00:20:45] Speaker 04:
What do you make of Kaplan and Drysdale that says that it's actually a two-part test?

[00:20:51] Speaker 04:
Kaplan and Drysdale had to have personal standing, which they had because they could show they lost, money was in the hand if they won on the merits.

[00:21:00] Speaker 04:
And then the court went on in the footnote to deal with third-party standing.

[00:21:06] Speaker 04:
Suggesting that if they was in essence saying if Kaplan and Dryden didn't have third party standing, they were going to throw them out even though they had constitutional standing.

[00:21:17] Speaker 01:
Right.

[00:21:18] Speaker 01:
And you see that in Kowalski as well.

[00:21:21] Speaker 01:
And it's mentioned more in passing in the early part of the opinion.

[00:21:27] Speaker 04:
And I think that... Well, that's why I'm asking for your help.

[00:21:30] Speaker 04:
So, I mean, you were just about or about to say that if Carpenter standing, if Carpenter could show

[00:21:36] Speaker 04:
personal harm under Blue Jam, Friends of the Earth, then you wouldn't worry about the third party standing?

[00:21:45] Speaker 01:
No, the third party standing, it comes in and that's what the Supreme Court cases talk about is because the law firm is speaking to represent those harms, right?

[00:22:01] Speaker 01:
The harms that it's saying are happening to

[00:22:05] Speaker 01:
its clients.

[00:22:07] Speaker 01:
I think that that's, you know, one of the key distinctions in the law firm context.

[00:22:11] Speaker 01:
So that you have the law firm coming in and saying, look, we're experiencing a harm here.

[00:22:18] Speaker 01:
And so you look at Supreme Court cases and they check that one off.

[00:22:23] Speaker 01:
And we're looking to, we want to represent this group of clients and their interests because they're

[00:22:31] Speaker 01:
experiencing a harm, and they're hindered from pursuing it themselves.

[00:22:36] Speaker 01:
So, I mean, my reading of those cases is that there's, and it's not explained explicitly in the cases, but it's because of the representational aspect of the proper basis for standing, right?

[00:22:51] Speaker 01:
The law firm is coming in and saying, we have all these clients.

[00:22:56] Speaker 01:
we're being harmed and the clients are being harmed, we want to pursue these actions on behalf of the clients.

[00:23:02] Speaker 01:
And that's why the court goes to, you know, that key step then becomes the hindrance step.

[00:23:07] Speaker 01:
Because it's like, okay, if you're looking to go and advocate these issues, these harms that you say are impacting your clients, why can't they do it?

[00:23:19] Speaker 01:
And so that becomes really the key, that's the new element, right, of law party,

[00:23:26] Speaker 04:
uh... or law firm third-party standing is you have the typical idea and your argument in this case is that Carpenter Chartered has fallen on its own sword because it's produced a large handful of people who say they can bring their claims.

[00:23:41] Speaker 01:
That's exactly right, Your Honor, and that's why I open the argument with that.

[00:23:47] Speaker 01:
Look, I think that the facts here, they line up with that we have existing Supreme Court precedent here.

[00:23:54] Speaker 01:
We don't have anything going the way for law firms that Carpenter Chartered is advocating for.

[00:24:00] Speaker 01:
And the key element, as I just said, the new piece is hindrance.

[00:24:04] Speaker 01:
And the declarations eliminate hindrance for the individual claimants.

[00:24:09] Speaker 01:
So the preference is always for Article 3.

[00:24:12] Speaker 01:
The party is being injured, should be pursuing the case.

[00:24:14] Speaker 01:
That's the preference.

[00:24:16] Speaker 01:
Prudential standing is not a preference.

[00:24:18] Speaker 01:
It's not a preferred method.

[00:24:19] Speaker 01:
It's disfavorable.

[00:24:21] Speaker 04:
Mr. Palky, your client, the United States government, has taken a position in an in-bank case that will be heard tomorrow.

[00:24:30] Speaker 04:
You've taken a position that the precedent that binds this panel has a standing requirement that is less rigorous than Friends of the Earth, Lujan.

[00:24:44] Speaker 04:
You're aware of the brief that's been filed, whether you signed it or not, the brief that's been filed in the in-bank case?

[00:24:50] Speaker 01:
Yes.

[00:24:51] Speaker 01:
But I'm not sure how it impacts this analysis for carpenter chartered under, you know, Kowalski and the other cases.

[00:24:59] Speaker 04:
Well, for the personal harm.

[00:25:02] Speaker 04:
We haven't decided yet.

[00:25:03] Speaker 04:
In fact, you almost gave it away.

[00:25:05] Speaker 04:
If carpenter charter could establish personal standing,

[00:25:11] Speaker 04:
under Liu Xian, Friends of the Earth, i.e.

[00:25:13] Speaker 04:
personal harm, you are about to say, well, that would be a very different case, even though he might not have third-party standing.

[00:25:26] Speaker 04:
So what I'm trying to say is lay the third-party standing issue to one side and simply take personal standing of carpenter chart.

[00:25:40] Speaker 04:
What tests are we, this panel, to use to decide whether Carpenter Charter has standard?

[00:25:49] Speaker 01:
Well, I think that, so if we're not talking about the attempt to represent the harms of clients, but Carpenter Charter.

[00:25:58] Speaker 04:
I took third party off the table.

[00:26:00] Speaker 04:
Right, right.

[00:26:01] Speaker 04:
Carpenter Charter.

[00:26:04] Speaker 04:
Let's just ask this question.

[00:26:07] Speaker 04:
Carpenter Chartered is challenging 14, 3, 636?

[00:26:12] Speaker 04:
Correct.

[00:26:15] Speaker 04:
Right?

[00:26:16] Speaker 04:
And it's saying, in essence, my challenge to 1636 is no different than the challenge I brought previously in a case called Chartered Carpenter that precedentially held this court he had standing.

[00:26:28] Speaker 04:
Right?

[00:26:29] Speaker 04:
So what I'm asking you is, Carpenter Chartered's challenge to 14,

[00:26:36] Speaker 04:
636 is different from his challenge to the others.

[00:26:39] Speaker 04:
He's alleging standing as personal harm to the firm.

[00:26:43] Speaker 01:
Right.

[00:26:43] Speaker 01:
And we can see that that's a closer case in our supplemental for you.

[00:26:46] Speaker 04:
Now, okay.

[00:26:47] Speaker 04:
So now what I'm trying to ask you, I know you're dancing around here.

[00:26:50] Speaker 04:
I'm being unclear.

[00:26:51] Speaker 04:
Let's assume I'm being unclear.

[00:26:54] Speaker 04:
My question is what test do we use to decide whether Carbondale Charter has personal standing to challenge 14636?

[00:27:06] Speaker 01:
I think you look to the declaration that was submitted.

[00:27:10] Speaker 04:
I'm not talking about the declaration.

[00:27:13] Speaker 04:
I'm talking about the legal test.

[00:27:16] Speaker 01:
The declaration.

[00:27:19] Speaker 01:
The carpenter charter is looking for articles.

[00:27:23] Speaker 04:
Give me the case.

[00:27:24] Speaker 04:
Tell me what case we are using.

[00:27:26] Speaker 04:
Is it Friends of the Earth Lujan or is it the DAV 2000 opinion?

[00:27:34] Speaker 01:
I think it's Friends of the Earth Lujan.

[00:27:37] Speaker 04:
What are we supposed to do?

[00:27:38] Speaker 04:
You have conceded, your client has conceded in the in-bank case, that DAV2000 has a lower, more looser, more relaxed, is your word, standing test than Lujan.

[00:27:56] Speaker 04:
That's how you have chosen to describe your view of DAV2000.

[00:28:00] Speaker 04:
Correct?

[00:28:03] Speaker 04:
Correct.

[00:28:04] Speaker 04:
Correct.

[00:28:05] Speaker 04:
All right.

[00:28:06] Speaker 04:
So I'm just asking, what tests are we supposed to apply?

[00:28:08] Speaker 04:
We're a panel.

[00:28:10] Speaker 04:
We're not in bank.

[00:28:11] Speaker 01:
Right.

[00:28:12] Speaker 01:
And I apologize.

[00:28:14] Speaker 01:
And I think we refer to that test in the briefing.

[00:28:17] Speaker 01:
It is, as we're arguing in the end bank, it's the DVA standard is what should be applied.

[00:28:25] Speaker 01:
And that carpenter can't eat it.

[00:28:30] Speaker 04:
The DVA standard?

[00:28:33] Speaker 01:
Right.

[00:28:33] Speaker 01:
Our position in the Amban case.

[00:28:38] Speaker 04:
No, no.

[00:28:39] Speaker 04:
You're asking for, and you're in that case, you distinguish, deviate the 2000 opinion from the rule of friends of the earth loosing.

[00:28:50] Speaker 01:
Right, right.

[00:28:51] Speaker 01:
Exactly.

[00:28:54] Speaker 01:
And applying that standard, that's what should be applied to Carpenter Charter.

[00:29:01] Speaker 04:
The looser standard.

[00:29:09] Speaker 01:
Yes, I think that's the position we've taken in that case, yeah.

[00:29:13] Speaker 04:
No, that's not the position you took in the in-bank case.

[00:29:18] Speaker 04:
The in-bank case is essentially asking us to overrule, asking the in-bank course to overrule DBA 2000, correct?

[00:29:27] Speaker 01:
Right, in favor of Lujan, right?

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

[00:29:30] Speaker 01:
Right.

[00:29:31] Speaker 04:
And we're a panel.

[00:29:32] Speaker 01:
All twisted around.

[00:29:33] Speaker 01:
I mean, as I started off, I think it's

[00:29:37] Speaker 01:
As we said in the brief, the standard is the stiffer standard that flows from lusia.

[00:29:54] Speaker 04:
Well, I don't want to pursue it further because you're obfuscating and I believe you're doing it on purpose because there's nothing more I can say to that.

[00:30:02] Speaker 02:
Hi, this is Judge Chen.

[00:30:03] Speaker 02:
I'll take a few cracks now.

[00:30:10] Speaker 02:
What would be a fact pattern in which a law firm like Carpenter Chartered could establish standing to challenge the particular regulation Carpenter is challenging here, 14.636?

[00:30:25] Speaker 02:
Can you describe what that fact pattern would look like?

[00:30:31] Speaker 01:
I think that, so applying exclusion and laid law, if Carpenter Chartered

[00:30:40] Speaker 01:
For instance, the declaration described a scenario, you know, specific scenario that resulted in, you know, specific loss fees it could identify.

[00:30:51] Speaker 01:
That could meet the standard.

[00:30:56] Speaker 01:
I mean, the problem as presented in the case is that everything is of a much more general nature in the evidence provided.

[00:31:07] Speaker 04:
So, you basically are saying something like what Wells says in the MBA case?

[00:31:13] Speaker 01:
Right, and I think government council says it's, it, it, and they can see that.

[00:31:20] Speaker 01:
Right, it, it, it presents, it presents evidence, it presents a, it's not, she, you know, identified certain things that were lacking in it, but there isn't an attempt there to identify specific circumstances.

[00:31:35] Speaker 02:
And then what bucket would that fall in?

[00:31:37] Speaker 02:
Would that be personal standing or associational standing or some other kind of standing?

[00:31:43] Speaker 01:
This is where I believe that in that circumstance, it moves into that's personal standing.

[00:31:51] Speaker 01:
That's an injury to the firm.

[00:31:54] Speaker 01:
And that can happen for a law firm, right?

[00:31:56] Speaker 01:
I think that the existence of third party standing in the case law doesn't mean that

[00:32:01] Speaker 01:
personal standing is forever foreclosed to law firms that they couldn't identify a situation that, you know, is directly injuring, uh, or regulation that's directly causing direct injury.

[00:32:13] Speaker 03:
Council, Council, are you arguing, or would you argue that to the extent Carpenter Chartered has any standing in this matter, it's limited to the attorney fee provision argument?

[00:32:28] Speaker 01:
Right.

[00:32:29] Speaker 01:
And I think, you know, as we,

[00:32:31] Speaker 01:
sort of alluded to in our brief, that's the closest case here that's, I think, really before the court.

[00:32:38] Speaker 01:
I think the rest present problems under the various standards that are more readily discernible.

[00:32:45] Speaker 02:
My last question relates to the client declarations that Mr. Carpenter has filed.

[00:32:54] Speaker 02:
And as I understand the storylines behind those client declarations,

[00:33:01] Speaker 02:
They are all stories that occur after the date the petition was filed here, the 502 petition.

[00:33:10] Speaker 01:
It looks that way when you tap them out.

[00:33:13] Speaker 02:
And so what I want to know is are there circumstances where such after the petition filing date actions occur that's still nevertheless sufficient for establishing standing or

[00:33:30] Speaker 02:
Is it your view, is it the government's view, that the law is very, very, very rigid about this, and all of the actions have to have occurred before the date?

[00:33:48] Speaker 01:
I would take the more rigid view.

[00:33:51] Speaker 02:
OK, and why is that?

[00:33:52] Speaker 01:
Well, I think we alluded to this in the brief, that the problem, because what we're looking at right now here in practical terms is,

[00:34:00] Speaker 01:
there's dozens of pages of declarations that were filed, you know, soon before oral argument and basically a motion to substitute in a footnote.

[00:34:13] Speaker 01:
And it just, if they are going to proceed on the basis of those declarations, there needs to be a new petition and they need to take that position, establish their standing, raise their arguments, which could differ

[00:34:30] Speaker 01:
carpenter charters, once all the facts of the individual claim.

[00:34:34] Speaker 01:
And then the government has the opportunity to respond, to analyze the arguments, analyze the evidence, and to brief a response.

[00:34:44] Speaker 01:
The current presentation of the issue is ambushed.

[00:34:58] Speaker 03:
No further questions?

[00:34:59] Speaker 01:
Well, I think my time is up.

[00:35:01] Speaker 01:
OK.

[00:35:02] Speaker 03:
Yes, your time is up, sir.

[00:35:03] Speaker 03:
Let's hear from Mr. Carpenter.

[00:35:07] Speaker 03:
May I have five minutes, Mr. Carpenter?

[00:35:09] Speaker 03:
Yes.

[00:35:09] Speaker 03:
Thank you, Your Honor.

[00:35:18] Speaker 00:
I think Carpenter Chartered is in an admittedly difficult position here, if I can be candid with the court.

[00:35:27] Speaker 00:
On the one hand, I believe DAV controls the disposition of the question of standing for Carpenter Chartered.

[00:35:35] Speaker 00:
On the other hand, this petition goes further than the petition went in the Carpenter Chartered case that was earlier.

[00:35:46] Speaker 00:
This matter is going to be addressed more broadly in the inbox decision tomorrow.

[00:35:56] Speaker 00:
I think that the panel should be guided with the existing precedent until such time as the inbox decision is reached.

[00:36:18] Speaker 00:
I just don't see any way for me to, on behalf of Carpenter Chartered, try to prognosticate

[00:36:25] Speaker 00:
what that outcome might be because obviously the Inbox Court has the ability to carve out a rule different from the rule that existed when this was filed.

[00:36:41] Speaker 00:
If I could speak briefly to the question about the more rigid rule relative to the harm done, in this case it seems to me to be quite impractical

[00:36:54] Speaker 00:
to apply that rigid rule in light of the fact that these regulations could have only have had prospective adverse effect once they were finally published.

[00:37:13] Speaker 00:
The harm, excuse me, there would not have been any harm that predated the final notice

[00:37:22] Speaker 00:
And then the brief window within which we had the file under 502 would seem to have limited that opportunity.

[00:37:31] Speaker 00:
I see that I'm out of time.

[00:37:34] Speaker 00:
I appreciate the court's attention to this matter.

[00:37:38] Speaker 03:
Okay, Mr. Carpenter.

[00:37:39] Speaker 03:
We thank you for your time.

[00:37:40] Speaker 00:
We thank the party for the arguments.