the final case today is augustine versus the harp and the veterans administration this case will be a feature a argument by telephone can you let me know when you have them on the phone begin your argument i'd like to first ask you however to proceed somewhat more slowly than you might otherwise if you would be so kind as to pause after each sentence so that the court if necessary can interrupt and ask you questions this kind of proceedings going to require us to move a little more slowly than we might otherwise the court will take that into consideration with respect to time are you ready to proceed mr chang yes we can hear you fine mr toad are can you hear mr chang then if you would like to proceed you may mr chang again i ask you do pause and allow the court to ask questions ye ask a couple of questions to see if i can focus the argument as i read the decision of the board here and the decision of the administrative judge who became the final decision of the board they gave  grounds two reasons why they say that you failed to show a reasonable fee under their interpretation the statute is the first was that you did not enter your notice of appearance until somewhat la in the game and secondly they say that you failed to show that the attorneys efforts contributed to her success on appeal the board seems to think that there are in order for that that the services contributed to success and i understand you to be saying both of those standards are wrong as a matter wall shouldn't make a difference when you enter your appearance if you actually gave legal advice and secondly the statute should not be interpreted to require the requester of the theses to prove that their efforts produce the victory instead i understand you to say the correct interpretation of whether he is reasonable is whether or not that the efforts of the attorney were undertaken in pursuit of the fance of the client's case know i have we have the timeline from the date of march fourteenth two thousand when your client got his victory p a j and then a month later the agency appeal that's in two thousand and you appear to show up mediation is i recall i'm unaware of my research and i'm unaware of any regulation of the m s p b that says when it is you're required file a notice of appearance or whether you're entitled to the tourney fees under any standard depends on when you drugs it's petition for review in september of zero one september seventh that's an eight to a nine then the agency moves to dismiss in november november eleventh  it's on willing to have the original decision of the a j reinstated is that correct correct and it wants to dismiss its appeal but it does not want to reinstate the victory for your client which is been vacated by the board and we go a nice period of two years we go to september of zero three when the board finally grants the government's motion to dismiss and makes clear that the full board is reinstating your client's victories in order and that in response to a piece of paper that you filed complaining that it was no good to simply dismiss the appeal without reinstating your client's victory correct and so i just want to confirmation from you that until september twenty two three your client was still in jeopardy of not being able to reclaim her victory in front of the a j because the agency was refusing to allow that to happen all of that i done you know there's any explanation why it took from november one to september of zero three for the board to finally clean this case up well the judge reed is the judge that presided on the merits of your client's case in the beginning isn't that correct judge raises the administrative judge rules in your incorrect legal standard in deciding entitlement to see if we were to disagree and you agree with you that the wrong legal standard was applied i don't see that there's any evidence the judge agreed would be biased or otherwise not competent to decide party appeals and in anticipation of having to brief the appeal you spend time writing an opposition brief and then the party decides to dismiss the appeal and believe the original judgment i and this is a situation in which the statute provides perturbs fees to the prevailing party is your contention that the work that was done on the appeal is not compensable no we don't think that would be a good rule of law and we and the attorney's efforts and judge dice hypothetical ok there's no showing that that that contributed to the success of the appeal and judge going hypothetical brief was undertaken in defense of a client and it turned out that that was unnecessary because the other party quit in a case where the statute provides you will buy a house by now and legal and it was appealed taken by the loser the agency and legal amperage were undertaken briefing consulting talking right that is actually an issue of dispute well that might be whether or not some of those conferences dealt with the appeal as opposed to dealt with something else can be dealt with later on on a quantum theory but the point is that the a j here said there was the rationale for throwing out the work that was related to the appeal with respect to work with that was perform demonstrate that right but i mean if you read the rationale if you say well that a j said well to the extent that his fees were not even related to the case he can't get out and i don't believe mr chang is going to her you know he's entitled t fees having to do with her driver's license your contract or something someplace else and at the a j wrote an opinion in which he said as a matter of law you can't get the fee unless you can prove that have in this case which is mr cheney after the show called order was given the opportunity to show what that was were connected to the success company which he did show did he not that he spent hours for example on the objection to the agency's motion to decision remaining vacated and they do exactly what he asks and they reinstate the original decision if part of that board decision he got additional really he got the thing reinstate he's claiming he's claiming the fees he incurred and she's claiming that these that he incurred in the t v that successful result that is the reinstatement of the original decision how can you possibly oppose the sixty four of the board that we vacate the board order an opinion that is vacate the one that originally vacated the aegis decision the effect of this is to reinstate the age a decision right yes and was also defending the original a j decision was  unless either the full board rules in her favor or the full board reason states the decision that they have bacon got it just got ok and so until such time as the full board either on its own ruled in her favor on the merits which they never did or they reinstate reads a j opinion her paper she is in jeopardy she count the money got mr chang filed a series of pieces of paper saying don't just dismiss this the government's if you make certain my client gets her money it was based on the record the government takes a good look at it and says maybe a liar got something going here we'll just quit and so the government says we throw in is how we quit we dismiss our appeal and those back situations if this case  good work you say attorney client privilege i don't have a chance and that's one of the most phenomenal cast twenty two's i've seen in years and i'm glad that the government saw that between the time they filed the red river when they