[00:00:00] Speaker 03:
Our next case is number 23, 2087, Johnson versus Collins.

[00:00:05] Speaker 03:
Okay, Mr. DeHawk, please.

[00:00:08] Speaker 01:
Good morning.

[00:00:08] Speaker 01:
May it please the court?

[00:00:09] Speaker 01:
Kenny DeHawk is for Mr. Johnson.

[00:00:11] Speaker 01:
On behalf of Mr. Johnson, I do want to thank this court for the opportunity to present his appeal.

[00:00:15] Speaker 01:
Mr. Johnson seeks review of a final decision from the board that found 38 USC 5313 limits how much compensation he is owed based on his 2007 claim.

[00:00:26] Speaker 01:
The Veterans Court found that because the board also remanded a separate collateral attorney fee matter, it lacked jurisdiction.

[00:00:33] Speaker 01:
The Veterans Court is wrong.

[00:00:34] Speaker 03:
It's entirely collateral because the attorney's fee reduces his recovery, right?

[00:00:42] Speaker 01:
It does not, Your Honor.

[00:00:44] Speaker 01:
And this is where the Veterans Court analysis and the secretary's argument is defective.

[00:00:51] Speaker 01:
The amount of retroactive benefits is static.

[00:00:54] Speaker 01:
Under Snyder, the calculation of the retroactive benefits.

[00:00:58] Speaker 03:
The amount that he receives would be reduced by the amount of the attorney's fee, right?

[00:01:04] Speaker 01:
It does, but it is, that amount of money, Your Honor, is unrelated to how much money is owed under 5313.

[00:01:13] Speaker 01:
So the attorney's fee is calculated based on the total amount of retroactive benefits.

[00:01:17] Speaker 03:
The amount that the government pays him will be affected by the amount of the attorney's fee.

[00:01:22] Speaker 01:
No, Your Honor, and the reason it's not is because the attorney's fee is owed from the veteran to the attorney.

[00:01:31] Speaker 02:
The contract and the withholding arrangement... Pays that out, the VA to the attorney or the VA gives all the money to Mr. Johnson and then Mr. Johnson cuts a check to the attorney?

[00:01:45] Speaker 01:
It depends, Your Honor.

[00:01:47] Speaker 01:
In this case, Mr. Johnson asked the VA to hold some of his benefits.

[00:01:54] Speaker 02:
So it is the VA that in fact transmits the money to Mr. Hood, the attorney, and then transmits a different

[00:02:03] Speaker 02:
basket of money to Mr. Johnson after everything is sorted out with the attorney fee question?

[00:02:08] Speaker 01:
That is correct, Your Honor, but the amount of fee that's owed to Mr. Hood will not change how much money the VA owes Mr. Johnson under whether 5313 is or is not applied.

[00:02:22] Speaker 01:
And that's why it's collateral.

[00:02:23] Speaker 01:
The attorney fee is calculated irregardless of

[00:02:29] Speaker 01:
5313's application.

[00:02:31] Speaker 00:
I hear what you're saying.

[00:02:32] Speaker 00:
I agree with you that whether 5313 applies seems to be separate.

[00:02:39] Speaker 00:
On the other hand, the question of how much the attorney fees will be does seem to be related to how much the recovery is.

[00:02:51] Speaker 00:
As I understand, the remand is looking at whether the attorney fees would be reasonable

[00:02:59] Speaker 00:
with 5313 applying because then it turns out that the veteran owes more than he's collected, right?

[00:03:07] Speaker 00:
So that seems related in that sense.

[00:03:11] Speaker 00:
In other words, I hear what you're saying about 5313, whether 5313 applies seems unrelated to the attorney fee's question.

[00:03:21] Speaker 00:
But on the other hand, the attorney fees question doesn't seem related to whether 5313 applies.

[00:03:26] Speaker 00:
Does that make sense?

[00:03:27] Speaker 01:
It does, Your Honor.

[00:03:28] Speaker 01:
And my response to that is in this case, the board reformed the contract and said the veteran cannot owe more than some it capped how much the attorney fee can be.

[00:03:40] Speaker 01:
And it capped it based on the the

[00:03:44] Speaker 01:
the expectations of the parties that Mr. Hood clearly communicated, look, I don't want to get so much money that the veteran is going to be in debt and I don't want to take all of his money.

[00:03:54] Speaker 01:
So what the board did is they reformed the contract and they said the attorney's fee is going to be capped

[00:04:00] Speaker 01:
based on the application of 5313 and the 10% rating that's payable under that statute.

[00:04:08] Speaker 01:
And so whatever the attorney's fee ends up being, it can never be more than the amount of money paid to Mr. Johnson under 5313.

[00:04:21] Speaker 03:
But the amount of the fee is still being litigated, right?

[00:04:24] Speaker 03:
It's not as though it's been set.

[00:04:26] Speaker 01:
It has, Your Honor.

[00:04:26] Speaker 01:
That's correct.

[00:04:27] Speaker 01:
The amount of the fee...

[00:04:30] Speaker 01:
Not precisely, Your Honor.

[00:04:32] Speaker 01:
The total fee that is at issue is set.

[00:04:36] Speaker 01:
It's set based on the post-release portion, which nobody's disputing right now, and it's set on the pre-release portion, which is capped by application of 5313.

[00:04:48] Speaker 01:
So there's an X number of dollars that is

[00:04:54] Speaker 01:
owed as a fee and the remand order was to the general counsel to determine how much of that fee goes to the veteran and how much of that fee goes to the attorney.

[00:05:04] Speaker 01:
In the board's order, we can see on page 80.

[00:05:09] Speaker 03:
So there's still a dispute about how much the attorney is going to get, right?

[00:05:17] Speaker 03:
Say that again, Your Honor.

[00:05:17] Speaker 03:
There's still a dispute as to how much the lawyer is going to get.

[00:05:22] Speaker 01:
There is, Your Honor, except that it has nothing to do with and will not affect the final order here on the application of 5313 to Mr. Johnson's award.

[00:05:34] Speaker 01:
And when we look at the page 82 of the appendix, item number 6 of the remand order, it says to disperse the remainder of any past due benefits on the pre-release portion

[00:05:48] Speaker 01:
And then in parentheses, calculated based on the amount payable for a 10% rating under 5313, which was the $17,000.

[00:05:56] Speaker 01:
They asked the VA to confirm that amount.

[00:06:00] Speaker 01:
But basically what the board has said is Mr. Johnson is only going to get $17,000 for those years that he was in prison because 5313 mandates that.

[00:06:13] Speaker 01:
That number will never change.

[00:06:16] Speaker 01:
whether Mr. Hood gets a full 20% of the fee calculated from that or a lesser amount.

[00:06:23] Speaker 02:
You can appeal the application of 5313 after the VA OGC resolves the attorney fee question, right?

[00:06:32] Speaker 01:
We don't know, Your Honor.

[00:06:33] Speaker 01:
That's why we filed this appeal and that's why we're here.

[00:06:35] Speaker 02:
They made it clear, I thought, you know, that that is in fact the case and that the remand by the board was not just to resolve the attorney's fees but

[00:06:45] Speaker 02:
that the amount of benefits that Mr. Johnson will receive for the pre-release portion time period, it's all being held in abeyance.

[00:06:56] Speaker 02:
And so in that sense, there's nothing final about the amount of past two benefits for the pre-release portion.

[00:07:04] Speaker 02:
So if it is true that Mr. Johnson can still appeal all of this after resolution of final dollar amounts that get

[00:07:15] Speaker 02:
accorded to all the parties, then there's no harm to Mr. Johnson in waiting to get that final resolution, as I understand it.

[00:07:26] Speaker 01:
If that were true, Your Honor, yes, there would be no harm.

[00:07:29] Speaker 01:
However, my first response is that the board cannot adjust the jurisdiction of the Veterans Court.

[00:07:36] Speaker 01:
And the two cases that the court's order highlighted are

[00:07:41] Speaker 01:
warnings to all of us that if you make a mistake and you guess wrong, you're out of luck.

[00:07:48] Speaker 01:
And so we filed this appeal to clarify whether we should have waited or if we're allowed to file the appeal now.

[00:07:56] Speaker 00:
So this is more of a cautionary appeal?

[00:07:58] Speaker 01:
For the most part yes, Ron I mean obviously didn't start as that as the court's order highlighted the parties didn't raise a jurisdictional issue the court raised it on its own and dismissed the appeal and we filed this appeal to ensure that We should have in fact waited and and this wasn't the proper Vehicle for challenging the application of that statute however looking at the two cases that the order cited

[00:08:25] Speaker 01:
I think is very clear, it cites a general uniform rule that attorney's fees are collateral to merits determination and the time to appeal starts when that merits determination occurs.

[00:08:39] Speaker 01:
And in both cases, the court was looking at a rule of looking at the nature of the open fee matter

[00:08:49] Speaker 01:
and to determine whether it will have any effect on the merits matter.

[00:08:53] Speaker 01:
And here, the fee matter that was remanded has no effect on the 5313 merits issue because the total fee is calculated from the $17,000 in the board's order.

[00:09:06] Speaker 01:
That number will never change.

[00:09:08] Speaker 01:
And that number is the, divvying up the 20% of that is what's at issue at the agency.

[00:09:17] Speaker 01:
the merits issue is how much of the full retroactive benefits are owed to Mr. Johnson with or without the application of 5313.

[00:09:25] Speaker 01:
I would just highlight a couple points.

[00:09:32] Speaker 01:
Number one, those cases talked about

[00:09:35] Speaker 01:
what constitutes a final decision.

[00:09:37] Speaker 01:
There was a bit of back and forth in the briefing and this court's precedent talks about final decision as required under 7252 and 7266.

[00:09:46] Speaker 01:
And it said that a final decision is one where there's no further action that needs to be happened except to implement the order.

[00:09:57] Speaker 01:
And that's precisely what the final decision here was.

[00:10:00] Speaker 01:
I would just refer the court to page 60 of the appendix.

[00:10:04] Speaker 01:
where it talks about our theory, and at the bottom of that page, given that KHD, the attorney's assertion is based on a legal regime that lacks any basis in law, his challenges are dismissed, and those challenges being to the application of 5313.

[00:10:24] Speaker 01:
There's no doubt that the board in this case rejected our argument, applied 5313, and

[00:10:33] Speaker 01:
limited the amount of payment made to Mr. Johnson based on the application of that.

[00:10:39] Speaker 01:
And again, the collateral fee matter has no bearing and will not change in any way the order of the board's application of that statute.

[00:10:57] Speaker 01:
And if there are no other questions, I will reserve the remainder of my time for rebuttal.

[00:11:03] Speaker 01:
Okay, thank you.

[00:11:05] Speaker 01:
Mr. Carhart.

[00:11:14] Speaker 01:
May it please the court.

[00:11:16] Speaker 01:
The Veterans Court's decision should be affirmed.

[00:11:19] Speaker 01:
I'm going to begin with a couple of points.

[00:11:22] Speaker 01:
One is that this is not just a case where the attorney's fees were left to be decided on remand.

[00:11:28] Speaker 01:
It is also a case where the amount of the past due benefits was left to be decided on remand.

[00:11:33] Speaker 01:
So, for example, at Appendix 79, the board instructs the RO to do an audit.

[00:11:39] Speaker 01:
of how much is owed to Mr. Johnson in past due benefits.

[00:11:44] Speaker 01:
It notes an unresolved issue about the date of Mr. Johnson's release, which would affect the amount of pre-release benefits owed to Mr. Johnson.

[00:11:51] Speaker 01:
It's Appendix 63.

[00:11:53] Speaker 01:
So this is a distinct situation from what the Supreme Court was addressing in the two cases cited in the panel's order, both of which had a judgment saying the defendant owes the plaintiff X number of dollars

[00:12:07] Speaker 01:
And the only issue left to be resolved is attorney's fees.

[00:12:10] Speaker 03:
The board decision here is not a great decision.

[00:12:16] Speaker 03:
It's very confusing.

[00:12:19] Speaker 03:
Let's assume for the moment that there is no dispute about the amount of the benefits remaining.

[00:12:29] Speaker 03:
Was the Veterans Court correct?

[00:12:31] Speaker 03:
about the finality, lack of finality, if the only issue remaining is attorney's fees?

[00:12:39] Speaker 01:
So that is closer to like a tiruous type of situation where the board resolves definitively one aspect of the claim.

[00:12:48] Speaker 01:
I think a key question in that hypothetical would be, what did the board say about appeal rights?

[00:12:55] Speaker 01:
Because one of the risks here is that the board doesn't make it clear that it's issuing a final decision, and a veteran

[00:13:02] Speaker 01:
who doesn't understand it to be a final decision, misses the 120-day appeal deadline.

[00:13:07] Speaker 01:
So in a case where there's some uncertainty, then whether or not the board acknowledges appeal rights, lets the veteran know of appeals rights is an important fact, and Tairuis did recognize that.

[00:13:19] Speaker 01:
So I would see that as sort of a variation of Tairuis.

[00:13:24] Speaker 01:
And the key questions are, is that a board decision that let the veteran know that this is final and that they can appeal it?

[00:13:31] Speaker 01:
Because otherwise, the veteran's at risk of missing that 120-day appeal deadline and being out of luck entirely.

[00:13:45] Speaker 01:
to add to the discussion of the board's remand order.

[00:13:49] Speaker 01:
And this did come up somewhat in questioning.

[00:13:51] Speaker 01:
But the board makes it clear to the veteran that you can, there's a process for appealing this decision later, this order later on down the line, this issue about 5313 and anything else.

[00:14:06] Speaker 01:
Mr. Johnson's notice of supplemental authority noted that there's a case at the Veterans Court right now which raises this 5313 issue that he's brought.

[00:14:17] Speaker 01:
So the briefing hasn't started on that, but it certainly is not the case that he needed to appeal the 5313 ruling in this case to be able to appeal at a later date.

[00:14:30] Speaker 01:
doesn't have any other questions, we ask that the court affirm the decision of the Veterans Court.

[00:14:35] Speaker 03:
Okay, thank you.

[00:14:49] Speaker 01:
So just to clarify, Your Honor, the past due benefits, there's some of the terms in here are being, I think, mixed up.

[00:14:57] Speaker 01:
Past due benefits under Snyder for an incarcerated veteran or a veteran who's not incarcerated are the same.

[00:15:05] Speaker 01:
Snyder says you start with the date of claim, you calculate each month's difference from what they were receiving to what they're entitled to, and that represents the past due benefits.

[00:15:15] Speaker 01:
The amount of money paid is what's at issue here.

[00:15:19] Speaker 01:
And that's the final decision.

[00:15:20] Speaker 03:
But the government says that the amount of benefits is still undetermined.

[00:15:25] Speaker 03:
What's the answer to that?

[00:15:26] Speaker 01:
The answer is that the past due benefits is already determined, Your Honor.

[00:15:30] Speaker 01:
That was done when the VA granted the total rating and assigned an effective date of 2007.

[00:15:35] Speaker 01:
And so the amount of past due benefits is the 400 and some thousand dollars.

[00:15:42] Speaker 01:
Is there some question about the release date or something like that?

[00:15:45] Speaker 02:
I think that's what I heard the government say.

[00:15:48] Speaker 01:
There was to some degree, Your Honor, but it was within a month.

[00:15:52] Speaker 01:
And I think that that's a trivial fact that is unrelated to whether the application of 5313 is a final determination or not.

[00:16:07] Speaker 01:
So the past due benefits is the same regardless of when he was released from prison or for any other veteran, whether they were even in prison.

[00:16:17] Speaker 01:
The question here is how much of that, those past due benefits are payable to Mr. Johnson.

[00:16:23] Speaker 01:
And that amount is what was finally decided by the board when it rejected our argument that it does not apply and said, no, you're paid at the 10% rate.

[00:16:36] Speaker 03:
And again, the Veterans Court addressed this question as to whether there's an issue as to the amount of past due benefits.

[00:16:44] Speaker 01:
The Veterans Court,

[00:16:47] Speaker 01:
In the Veterans Court's decision, appendix page four, I'll start there and then I'll get to the more specific answer to your question, Your Honor.

[00:16:56] Speaker 01:
The last full paragraph starts out with abundant and it says, third, the board rejected Mr. Johnson's argument that withholding requirement of 53A didn't apply because he was not incarcerated.

[00:17:09] Speaker 01:
I think that's a very clear statement from the Veterans Court that it understood the board to have made a final decision on that.

[00:17:15] Speaker 01:
Well, not on that legal issue.

[00:17:17] Speaker 01:
On that legal issue, yes, Your Honor.

[00:17:19] Speaker 03:
But what we're talking about now is whether there's a computational issue with respect to the amount of benefits because of the release date or because of something else.

[00:17:28] Speaker 01:
The Veterans Court, as far as I read, the order did not comment on that.

[00:17:33] Speaker 01:
The only part of the order, page six of the appendix,

[00:17:39] Speaker 01:
middle of that first full paragraph starting with the court cannot exercise, you'll see it says, so the board's discussion of the applicability of 5313A and the question of the amount of proper allocation of that portion of the award was remanded.

[00:17:57] Speaker 01:
And then it goes on to, and then there's a parenthetical and then says thus the decision, the Section 53 analysis was part of its remand, which is just not true.

[00:18:08] Speaker 01:
The remand was ordered in order to calculate the reasonable fee based on the application of 5313.

[00:18:18] Speaker 00:
Looking at the board's opinion, how do we respond to the portions that were cited by the government's attorney

[00:18:24] Speaker 00:
for the proposition that there were still some determinations that had to be made about, you know, release date and the calculation of the amount owed to the veteran.

[00:18:38] Speaker 01:
So the audit, Your Honor, was made primarily to verify the board's calculations.

[00:18:45] Speaker 01:
You'll see that they talked about that.

[00:18:47] Speaker 01:
And yes, there was an audit in order to determine his precise release date.

[00:18:55] Speaker 01:
But again, the past due benefits doesn't change depending on when he was released from prison.

[00:19:03] Speaker 03:
And... It certainly does under the government's view.

[00:19:07] Speaker 01:
Well, again, under Snyder, past due benefits is static.

[00:19:11] Speaker 01:
It never changes.

[00:19:13] Speaker 01:
The amount of money that he's owed, past due benefits is not what Mr. Johnson gets deposited into his account.

[00:19:21] Speaker 01:
Past due benefits is how much the claim is worth and whether

[00:19:27] Speaker 01:
The applicability of 5313 is what's in dispute here, and that has been set and settled.

[00:19:36] Speaker 01:
The AOJ has no, under this board's order, we read it to not give any discretion for the AOJ to say 5313 cannot apply.

[00:19:47] Speaker 01:
The board considered and explicitly rejected that argument, calculated the benefits based on the 10% rating required under 5313,

[00:19:56] Speaker 01:
And so it is a final decision.

[00:19:59] Speaker 01:
One last point, the government.

[00:20:02] Speaker 03:
I think we're out of time here over here.

[00:20:06] Speaker 01:
OK.

[00:20:06] Speaker 03:
Thank you, Your Honor.

[00:20:08] Speaker 03:
Thank both counsels.