[00:00:00] Speaker 01: So our first case today is Jesus Adelano versus Secretary of Veterans Affairs, 2024-1172. [00:00:08] Speaker 01: Mr. Raven. [00:00:12] Speaker 03: Good morning. [00:00:13] Speaker 03: May it please the court? [00:00:15] Speaker 03: Under the Equal Access to Justice Act, or EJA, a prevailing party is entitled to recover reasonable attorney fees and expenses unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. [00:00:30] Speaker 03: The questions presented by this appeal are, is the novelty of the legal issue a factor which the court may consider when weighing whether the government's position was substantially justified? [00:00:40] Speaker 01: That's the question. [00:00:41] Speaker 01: You have to look into the facts. [00:00:43] Speaker 01: And isn't that beyond us? [00:00:47] Speaker 03: I'm sorry, Your Honor? [00:00:47] Speaker 01: Isn't that beyond us, looking into the facts to determine substantial justification? [00:00:55] Speaker 03: Your Honor, actually, the question of whether or not [00:00:58] Speaker 03: something as substantial as the position was substantially justified is a factual question. [00:01:04] Speaker 03: The legal question is whether or not these are factors which should be considered to test the standard of review for substantial justification. [00:01:11] Speaker 00: Your view that it should never be taken into consideration whether something was a novel issue that was not previously decided by a court? [00:01:29] Speaker 03: Our position that, I want to explain it a little differently. [00:01:32] Speaker 03: It's our position that when the interpretation or the position of the government is found to be, or contrary to the plain meaning of the statute, or it's found to be unreasonable, then the factor of the novelty of the issue shouldn't be considered. [00:01:55] Speaker 03: It's not for application. [00:01:57] Speaker 03: once there is a determination, a holding or a conclusion that the interpretation is contrary to plain meaning, then whether or not the issue is novel is not really... That's very complicated. [00:02:18] Speaker 00: To be honest with you, that sounds like application of law of fact, right? [00:02:23] Speaker 00: And you're getting so in detail into the preciseness of the issue that it becomes application of law of fact. [00:02:33] Speaker 03: I would argue instead that when you look at the interpretation that's the position of the government and there's a conclusion that is contrary to the plain meaning, [00:02:46] Speaker 03: Once that conclusion is reached, then when weighing whether or not a position is substantially justified, it's not novel. [00:02:54] Speaker 03: The issue of whether or not that interpretation is novel or it's a novel issue really isn't a factor. [00:03:02] Speaker 02: You're asking us to set a legal standard for what may be considered with an application for attorney's fees. [00:03:10] Speaker 02: With respect to novelty, I think you just suggested this at the start of your remarks, [00:03:16] Speaker 02: novelty can never be considered. [00:03:18] Speaker 02: You want us to set down the legal standard that says in reviewing substantial justification, you may never consider the novelty of the legal issue. [00:03:27] Speaker 03: I would ask for that. [00:03:28] Speaker 03: Yes, I would ask that to be to be a conclusion is that when you're considering whether or not the government's position is substantially justified, whether or not there's a reasonable basis in law or fact should not take into account whether or not the issue is novel. [00:03:44] Speaker 02: Now, I'm not sure if that, I didn't understand that to be your position from the briefing. [00:03:48] Speaker 02: I thought your position was tell the Veterans Court it cannot always per se treat novelty as favoring substantial justification, which seems different than saying, tell them they can never consider it. [00:04:03] Speaker 03: And yes, I did brief it that way, and you're correct. [00:04:06] Speaker 03: When considered, some of the factors as I briefed, [00:04:10] Speaker 03: when considered in this fashion, it creates a per se rule that the novelty of the issue always comes out to find that the government's position was substantially justified. [00:04:20] Speaker 03: And there are exceptions to that. [00:04:23] Speaker 03: For example, I think that this court ruled in Patrick that when the interpretation of a statute is contrary to the plain meaning or is unreasonable, then [00:04:37] Speaker 03: then whether or not the issue is novel is not going to be a factor favorable to whether or not the government's position was substantially justified. [00:04:48] Speaker 02: It seems to me the Veterans Court here recognized what we said in Patrick. [00:04:53] Speaker 02: I don't think they cited Patrick, but on Appendix 6, the Veterans Court wrote even on a disputed issue of first impression, an issue of first impression would be a novel one, right? [00:05:07] Speaker 02: Right, that means novel, an issue of first impression? [00:05:12] Speaker 02: I'm sorry, on page six? [00:05:14] Speaker 02: At the top of page six. [00:05:15] Speaker 02: Sure. [00:05:16] Speaker 02: After all, even on a disputed issue of first impression, the law may clearly indicate the proper resolution of the dispute. [00:05:24] Speaker 02: That seems to me to be the Veterans Court recognizing novelty does not always per se favor substantial justification. [00:05:33] Speaker 03: I know that they've said that, but the way that, I'm not saying it's, I don't think novelty should ever be considered as a factor for substantial justification, but the way that it's considered, it's becoming a per se rule that if something's novel, the government's position is always substantially justified. [00:05:51] Speaker 00: It's difficult for me to agree with what you've just said. [00:05:55] Speaker 00: Because when I look at the opinion, it does have language that suggests to me that the court did not consider novelty to be the end of the analysis or even a per se, you know, once it's satisfied, nothing else should be considered or, you know, including the sentence that Judge Stark just read. [00:06:19] Speaker 00: So how do you respond to that? [00:06:20] Speaker 00: Because I don't, I'm having a hard time seeing a person who ruled. [00:06:23] Speaker 03: The Veterans Court did consider factors other than novelty. [00:06:27] Speaker 03: And as briefed, what I said is that when you add these factors together, no matter what the case is, they will always lead to a finding that the government's position was substantially justified for any time that there's a novel issue. [00:06:42] Speaker 03: And I understand that the court has decided differently. [00:06:46] Speaker 03: And the Veterans Court has recited that, but I just think that novelty should not be a factor for consideration as to whether or not there's a reasonable basis in law and fact for the government's position. [00:07:00] Speaker 02: I had thought we also made clear that the substantial justification analysis requires an analysis of the totality of the circumstances. [00:07:09] Speaker 02: So how could we start excluding things like novelty if we've already decided you have to consider the totality of the circumstances? [00:07:19] Speaker 03: I would say that there are some factors that should be considered, even though the court has to take the totality of the circumstances into consideration. [00:07:27] Speaker 03: For example, common practices. [00:07:29] Speaker 03: common practices. [00:07:31] Speaker 03: Why should that be a factor of consideration as to whether or not the government's position was substantially justified? [00:07:36] Speaker 03: Just because some practice was common prior to a legal challenge doesn't mean that the position of the government was substantially justified because that's the way it always has been. [00:07:45] Speaker 00: Is that a question of weighing in a particular case? [00:07:49] Speaker 00: If you consider the totality of circumstances, consider all these different factors, and then it's a question of weighing them by the finer effect. [00:07:58] Speaker 03: Sure. [00:07:59] Speaker 03: Absolutely, it's weighing certain factors, but the question is whether or not these factors will always lead to a finding that the government's position was substantially justified. [00:08:11] Speaker 03: And for example, when you get down to whether or not there's a judicial decision, the Veterans Court held that there was no judicial decision which found that the secretary's position was contrary to the plain language of the statute or was unreasonable. [00:08:25] Speaker 00: Did they look at the plain language of the statute and try to determine whether the government's position was plainly unreasonable? [00:08:34] Speaker 03: They did, but they reached a different result than this court. [00:08:37] Speaker 03: This court went in your decision, in the decision that was authored by this court, the court had a different take on finding that there's [00:08:49] Speaker 03: the statute did not unambiguously require or condition the right to a hearing on the attendance of the claimant or the veteran. [00:08:57] Speaker 03: And so when the Veterans Court, for example, looked at that factor, it said that there was no judicial decision which found that the government's position. [00:09:06] Speaker 00: Wouldn't such a ruling as whenever the court rules in favor of the veteran, that means that the government's position, you know, on a statutory interpretation as we did and [00:09:18] Speaker 00: the case you just referred to, wouldn't that then balance everything in the opposite direction and say the government's position could never be substantially justified? [00:09:29] Speaker 03: I would take that position that yes, when they consider whether or not a court has ever found that the secretary's position was contrary and that it did not unambiguously require the attendance [00:09:46] Speaker 03: a veteran claimant that yes, that's a judicial decision. [00:09:50] Speaker 03: That's in favor of the veteran. [00:09:55] Speaker 01: We can save the rest of your time. [00:09:57] Speaker 01: Yes, thank you. [00:10:12] Speaker 04: Good morning, your honors. [00:10:13] Speaker 04: May it please the court. [00:10:15] Speaker 04: Veterans Court below applied the correct legal standard in evaluating whether the government's position was substantially justified for purposes of the Equal Access to Justice Act. [00:10:25] Speaker 04: The Court below considered the totality of the circumstances and concluded that three factors were persuasive in its conclusion that the government's position was substantially justified. [00:10:34] Speaker 04: Now, a challenge to the Veterans Court's substantial justification determination nearly always falls outside of this Court's jurisdiction, and this case is no exception. [00:10:42] Speaker 04: This court lacks jurisdiction to consider the Veterans Court's application of IJA to the particular facts of this case. [00:10:49] Speaker 04: Now, Mr. Atalano attempts to circumvent these jurisdictional hurdles by arguing that the Veterans Court's factor analysis constituted dispositive, per se, legal rules. [00:10:59] Speaker 04: And specifically, he takes issue with the Veterans Court's analysis of the novelty of the legal issue. [00:11:06] Speaker 04: But this court already concluded that the novelty of the legal issue was a factor that the Veterans Court can consider in a substantial justification analysis. [00:11:15] Speaker 04: In Norris v. SEC, this court noted that, quote, when the issue is a novel one on which there is little precedent, courts have been reluctant to find the government's position was not substantially justified. [00:11:26] Speaker 04: So this court has already blessed novelty as a factor that the Veterans Court can consider in a substantial justification. [00:11:35] Speaker 02: Have you ever addressed whether the law permits the novelty factor to be considered as something that always weighs in favor of the government? [00:11:46] Speaker 02: Have we addressed that question? [00:11:48] Speaker 02: Not to my knowledge, Your Honor. [00:11:49] Speaker 02: And is that a question within our jurisdiction and implicated by this case? [00:11:54] Speaker 04: No, it's not, your honor, because that involves the application because the substantial justification test is a totality of the circumstances test. [00:12:03] Speaker 04: The Veterans Court below always has to look at the entire circumstances. [00:12:08] Speaker 04: So it's always going to be applying the facts of the specific case to that. [00:12:11] Speaker 02: I would have thought and I know I asked you a compound question. [00:12:14] Speaker 02: Sure, sorry. [00:12:16] Speaker 02: If I break it down, wouldn't it be within our jurisdiction to make a determination as to whether novelty [00:12:23] Speaker 02: always favors substantial justification. [00:12:27] Speaker 02: Couldn't we say within our jurisdiction, yes, novelty always favors substantial justification, or no, you can't treat it as always per se favoring substantial justification. [00:12:41] Speaker 04: I think that the court's decision in, oh, it's over here. [00:12:52] Speaker 04: And Patrick sort of answers this question. [00:12:56] Speaker 04: And there the court held that it had jurisdiction to consider where the Veterans Court, despite acknowledging the totality of the circumstances standard, improperly focused on only one factor. [00:13:06] Speaker 04: And that was the fact that the court itself had previously upheld the government's erroneous interpretation of the statute at issue and didn't look at other factors. [00:13:14] Speaker 04: So where it's [00:13:15] Speaker 04: So if it was truly a situation where one factor is dispositive of the case, that would be where this court would have in theory jurisdiction to review it. [00:13:25] Speaker 04: But that's not what's happening in this case because the court was looking at multiple factors. [00:13:29] Speaker 02: I've been confused about what the appellant is or what he wants us to decide, but there's whether or not a particular factor, let's just call it novelty, [00:13:41] Speaker 02: is just positive, and you've just addressed that, and I think said whether it's just positive or not is within our jurisdiction. [00:13:48] Speaker 02: But how about whether per se it always automatically favors the government is that question within our jurisdiction? [00:13:56] Speaker 02: It seems like a slightly different question than dispositiveness. [00:13:59] Speaker 02: Sure, Your Honor. [00:14:00] Speaker 04: I think that in a case, like I think the question of whether novelty per se always favors the government may be a question within the court's jurisdiction. [00:14:10] Speaker 04: But I think the answer is that it does not always per se favor the government, because especially... Another question related to that. [00:14:17] Speaker 00: Sure. [00:14:17] Speaker 00: Do you think the court below held that it per se always favors the government? [00:14:22] Speaker 04: No, the court, that's actually where I was about to go. [00:14:24] Speaker 04: The court did not hold that. [00:14:26] Speaker 04: Rather, the court noted that novelty at appendix 5 is, quote, one factor that weighs in favor, unquote, a finding that the VA's position was substantially justified, and then went on to page 6 to note that, quote, even on a disputed issue of first impression, the law may clearly indicate the proper resolution of the dispute. [00:14:48] Speaker 00: Do you read that as saying one factor in this case that weighs in the government's favor as opposed to one factor in every case that weighs in the government's favor? [00:14:58] Speaker 04: I read that as saying that's one factor in this case that weighs in the government's favor because the court is properly looking at the totality of the circumstances applying the law to fact and finding that in this case the novelty of the issue is just one factor that weighs in favor. [00:15:13] Speaker 04: I think that's important because novelty isn't necessarily just like it's novel or it's not. [00:15:18] Speaker 04: As the court sort of went on to look like there can be varying degrees of whether there's judicial precedent on point which the court analyzed. [00:15:26] Speaker 00: There could be a decision from [00:15:28] Speaker 00: the Court of Veterans Court, but not from this court. [00:15:32] Speaker 04: Right. [00:15:37] Speaker 04: And if there are no further questions, we respectfully request that the court dismiss for lack of jurisdiction. [00:15:42] Speaker 01: Thank you, counsel. [00:15:44] Speaker 01: Mr. Raven has some rebuttal time. [00:15:59] Speaker 03: I wanted to also bring up the fact that the court below used as a factor whether or not there's been any judicial decision which had found that the secretary at the government's position was found to be contrary to the plain language of the statute and whether or not the secretary's position had ever been found to be unreasonable based on its interpretation of the statute. [00:16:30] Speaker 03: As a factor for consideration, I think that one of the arguments that we would like to think that the court has jurisdiction over is whether or not the court's judicial decision in vacating and remanding was actually a judicial decision that the court has to take into consideration. [00:16:51] Speaker 03: The court down below, the Veterans Court, said that based on the mandate rule or the mandate doctrine, [00:17:00] Speaker 03: that they felt they didn't have an obligation to review under the Chevron step two about whether or not if the statute was ambiguous or silent on the issue. [00:17:12] Speaker 01: Is that actually rebuttal? [00:17:17] Speaker 03: I was thinking it would be additional factors in rebuttal, your honor. [00:17:22] Speaker 03: But if, sir. [00:17:24] Speaker 01: Finish your thought. [00:17:27] Speaker 03: It was just that in terms of an additional factor in addition to that which we were arguing about for whether or not the novelty of the issue is a factor which the court should be able to consider. [00:17:40] Speaker 03: It's something that Mr. Atalano would like to bring to the court's attention. [00:17:46] Speaker 03: Mr. Atalano asked that the court vacate and remand the Veterans Court's decision. [00:17:50] Speaker 03: Thank you. [00:17:51] Speaker 01: Thank you to both counsel. [00:17:52] Speaker 01: The case is submitted.