"Thus, the Court holds that all issues involving eligibility for attorney fees under non-direct-payment fee agreements, as contrasted with the issues of reasonableness and excessiveness, must first be addressed by the RO in accordance with the normal adjudication procedures and cannot be the subject of original BVA review."
How later courts described this case
- "Thus, the Court holds that all issues involving eligibility for attorney fees under non-direct-payment fee agreements, as contrasted with the issues of reasonableness and excessiveness, must first be addressed by the RO in accordance with the normal adjudication procedures and cannot be the subject of original BVA review."
- applying the holding in Scates to non-direct-payment fee agreements
Written by the judges who cited it.
The opinion
HOLDAWAY, Judge,
concurring:
This case was remanded by a decision of the Federal Circuit in March 2002; the mandate from that decision was issued in May. On May 31, a panel was selected to consider the mandate and the parties so notified. Neither party has attempted to file a pleading in connection with the mandate to this Court. While our rules certainly require no such pleading, neither do they forbid it. It is well known that this Court is extremely liberal in permitting pleadings not specifically required by the rules. Had such a pleading been filed it surely would have been accepted. It is the responsibility of counsel, not the Court, to make the decision as to whether a party needs to or should file such a pleading and to frame the issues in connection with that pleading. It is simply not true, as our colleague implies, that the Court has some responsibility to frame the issues for the parties and goad them into filing briefs. They have been free to do so at any time within the past three and a half months. The parties have had more than an ample opportunity to be heard. Further, I have found that briefs produced as a result of such goading by this Court, particularly where the Court attempts to “frame” the issue in so-called briefing orders, have not been particularly helpful. Finally, I assure both parties that if reconsideration is requested, this judge and I’m certain I speak for Judge Farley as well, will have absolutely no difficulty in giving such a motion calm and dispassionate consideration.