[00:00:00] Speaker 03:
I have three cases that are scheduled for argument this morning.

[00:00:04] Speaker 03:
First case is Carter versus McDonald.

[00:00:08] Speaker 03:
Mr. Carpenter.

[00:00:11] Speaker 02:
Thank you, Your Honor.

[00:00:12] Speaker 02:
May it please the court, Kenneth Carpenter appearing on behalf of Mr. Harmon Carter.

[00:00:17] Speaker 02:
This matter, this appeal deals with two issues.

[00:00:20] Speaker 02:
First, whether the board's failure to notify Mr. Carter's counsel of the opportunity to submit evidence and participate in the board proceedings on remand.

[00:00:29] Speaker 02:
violated the fair process doctrine.

[00:00:32] Speaker 02:
Second, whether or not the rule of law created in this case by the Veterans Court regarding joint motions for remand conflicts with this court's precedent and with the board's regulatory duties.

[00:00:43] Speaker 01:
What is your view, counsel, of the fair process doctrine in view of the discussion that took place in Sprinkle v. Shinseski?

[00:01:00] Speaker 02:
Well, in Sprinkle, Your Honor, I believe they were dealing with a situation that is distinguishable from the situation in this case.

[00:01:09] Speaker 02:
This case, I believe, is closer to the circumstances in Cushman, in which you have a mistake that was made by the agency.

[00:01:19] Speaker 02:
The mistake in Cushman had to do with altering documents.

[00:01:22] Speaker 02:
The mistake here had to do with giving notice to a prior representative and then conducting the proceeding before the board

[00:01:29] Speaker 02:
on remand with that prior representative identified in the proceeding as the representative, and then giving notice to that representative and not the actual representative.

[00:01:42] Speaker 02:
So I don't believe that there is anything in the sprinkled decision that precludes this court from following the precedent in Cushman and finding that this was a denial of fair process.

[00:01:58] Speaker 02:
OK.

[00:02:03] Speaker 02:
In this case, Your Honor, we believe that the suggestion by the lower court that Mr. Carter's attorney's receipt of Mr. Carter's claims file as curing the board's notice error is simply not consistent with the opportunity to meaningfully participate in the proceedings.

[00:02:25] Speaker 02:
Having received the claims file has nothing to do with the fact that the proceedings before the board on remand

[00:02:33] Speaker 03:
were noticed to the disabled American veterans that the board... Is there a regulation that requires the 90-day notice?

[00:02:43] Speaker 02:
There is not a specific regulation, Your Honor.

[00:02:46] Speaker 02:
The only regulation that comes close is the regulation that pertains on the way up.

[00:02:51] Speaker 02:
However, the problem here... Am I correct that there's an agency practice, though, with respect to the 90-day?

[00:02:56] Speaker 03:
There is, and that agency practice... What should we treat that agency practice as if there was a regulation?

[00:03:03] Speaker 03:
something on which you can pin a due process argument on?

[00:03:08] Speaker 02:
Well, because, Your Honor, whether it is, in fact, a regulation or merely a practice, when the case comes back before the board, there has to be some transitional process in which the parties are notified that the matter is going to proceed.

[00:03:24] Speaker 02:
This case deals with a remand from the Veterans Court to the board.

[00:03:28] Speaker 02:
When the board gets that, the board

[00:03:30] Speaker 02:
is literally in isolation to counsel.

[00:03:33] Speaker 02:
Counsel has no idea.

[00:03:35] Speaker 02:
There is no clerk's office.

[00:03:37] Speaker 02:
There is no opportunity to access the veterans law judge that is assigned by appellant's counsel.

[00:03:43] Speaker 02:
Appellant's counsel are strictly dependent upon notice from the board.

[00:03:48] Speaker 02:
And traditionally, that notice has been the same as the 1304 notice, which is you have 90 days to submit additional evidence.

[00:03:55] Speaker 00:
And in fact,

[00:03:57] Speaker 00:
Kucharowski case that the joint motion specifically referenced says in terms you get 90 days.

[00:04:04] Speaker 02:
That's correct.

[00:04:05] Speaker 00:
And the remand order incorporated that Kucharowski in this case.

[00:04:09] Speaker 00:
That's correct.

[00:04:10] Speaker 00:
I'm not sure when needs a regulation when the remand order indirectly incorporated a case that said you will in fact have 90 days.

[00:04:20] Speaker 02:
That's correct.

[00:04:21] Speaker 02:
And it certainly arises to a clear expectation on the part of counsel

[00:04:26] Speaker 02:
that that notice is going to be provided.

[00:04:29] Speaker 03:
Is that case cited with respect to notice as to when the appeal begins to run or the length of the time available in which to submit the new evidence?

[00:04:40] Speaker 03:
Or is it more goes to just submitting additional evidence in general?

[00:04:47] Speaker 02:
Well, I think it frankly goes to both, Your Honor.

[00:04:49] Speaker 02:
As I was trying to point out earlier, the problem here is when the case restarts on remand.

[00:04:55] Speaker 02:
When the board gets the case coming up, there is the 1304 notice and that puts all of the parties to the appeal on notice that the matter is going to proceed to a decision.

[00:05:06] Speaker 02:
There is no comparable proceeding other than the Kutaralchi notice that is part of their general practice

[00:05:14] Speaker 02:
before the board to restart, if you will, the appellate process on remand.

[00:05:20] Speaker 00:
I guess that the portion of Court-Jurowsky, which is page 372, which is cited in the joint motion for remand, says, in every case in which the court remands to the board a matter for adjudication or re-adjudication unless the court specifically provides to the contrary, an appellant is entitled to 90 days

[00:05:39] Speaker 00:
from the board's mailing to the appellant, a post remand notice to submit additional evidence and argument.

[00:05:45] Speaker 00:
And it seems to me, I'm not sure how that could be clearer.

[00:05:49] Speaker 02:
I don't think it could be clear, Your Honor.

[00:05:50] Speaker 02:
And that's not what happened here.

[00:05:52] Speaker 02:
There was never any notice.

[00:05:54] Speaker 00:
And even when the claims file was received, just put aside any difficulty, which I can't quite tell whether there really was in the record or not, that the letter might have been buried in the claim file.

[00:06:07] Speaker 00:
Forget about that.

[00:06:08] Speaker 00:
The fact is,

[00:06:09] Speaker 00:
the claim file wasn't received until the deadline was already passed.

[00:06:13] Speaker 02:
That's correct.

[00:06:14] Speaker 00:
Are you aware of any authority in this context or other for giving notice of a deadline after the deadline has passed?

[00:06:22] Speaker 02:
No.

[00:06:23] Speaker 02:
No.

[00:06:23] Speaker 02:
And frankly, it would be absurd to suggest that after the deadline has passed, that somehow you are put on actual notice and can go back and do something effective.

[00:06:35] Speaker 02:
Now, there certainly isn't any question that

[00:06:40] Speaker 02:
If counsel had tried to take some active role in this, as opposed to being reactionary and dependent upon what was in the order of remand, then clearly there might have been a different outcome.

[00:06:52] Speaker 00:
By might you mean that it would have been at least within the board's discretion to disregard the explicit command of the 90 day letter, you have 90 days, no more.

[00:07:06] Speaker 00:
But it would have been only a discretionary matter, but still it would have been a discretionary matter.

[00:07:11] Speaker 02:
Well, actually, it seems to me that once counsel put the board on notice, then I think that the board then would be obligated to follow the court's order.

[00:07:22] Speaker 02:
To say to the court, I've discovered in the claims file that apparently notice went out to the disabled American veteran representative.

[00:07:32] Speaker 02:
And in that context,

[00:07:34] Speaker 02:
The council might have then taken the initiative and said to the board, you have to give me notice and give the client notice as required by that joint remand order and start the 90 days all over again.

[00:07:46] Speaker 03:
But that's not what happened here.

[00:07:47] Speaker 03:
Why not?

[00:07:48] Speaker 03:
I mean, the council did eventually get the notice.

[00:07:53] Speaker 03:
Why did the council not do that?

[00:07:55] Speaker 03:
She eventually got the notice.

[00:07:57] Speaker 03:
She got a copy of the letter in which she got the claim file or the record.

[00:08:04] Speaker 03:
At that point, then why didn't counsel notify the board, wait a minute, where's my letter?

[00:08:09] Speaker 03:
Is this it?

[00:08:10] Speaker 03:
Do I still have 90 days or is it 67?

[00:08:13] Speaker 02:
I don't think I can candidly advise the court as to why no action was taken other than the fact that this was a genuinely inexperienced counsel whose first case was this case before the court.

[00:08:27] Speaker 01:
But counsel, that's the client's problem, not ours.

[00:08:32] Speaker 01:
No, Your Honor.

[00:08:33] Speaker 01:
What is?

[00:08:35] Speaker 01:
picked his counsel.

[00:08:37] Speaker 01:
And I was puzzled on where this dialogue has occurred because I was puzzled why counsel is not responsible for two things.

[00:08:45] Speaker 01:
One of them, she presumably knew there had been a remand because she joined in the joint motion.

[00:08:52] Speaker 01:
And yet she did nothing to find out what had happened to it until she got the file, which was after the 90-day period had run and she

[00:09:02] Speaker 01:
Even later, she finds that letter, and then she doesn't do anything.

[00:09:07] Speaker 02:
Well, with all due respect, Your Honor, I don't believe that the receipt of the file and the fact that this letter was in the file was part of counsel's understanding of the process.

[00:09:21] Speaker 02:
Counsel was relying upon the Cucarouchi direction in the joint remand that was negotiated.

[00:09:28] Speaker 02:
And that she would receive notice and have 90 days.

[00:09:32] Speaker 01:
from the time the board gave her notice.

[00:09:36] Speaker 01:
Well, of what?

[00:09:39] Speaker 02:
Of the opportunity to submit evidence and additional arguments.

[00:09:42] Speaker 01:
After the remand had arrived back at the board.

[00:09:45] Speaker 01:
That's correct.

[00:09:46] Speaker 01:
Well, she knew when the remand arrived back at the board.

[00:09:48] Speaker 02:
No, she didn't.

[00:09:49] Speaker 02:
She didn't?

[00:09:50] Speaker 02:
No.

[00:09:50] Speaker 02:
That there is no process in place in this system for counsel to be notified when

[00:09:57] Speaker 02:
the file has been retracted.

[00:10:00] Speaker 03:
She received the file and in the file was a copy of the letter.

[00:10:03] Speaker 03:
That's correct.

[00:10:04] Speaker 03:
So isn't that notice at that point?

[00:10:07] Speaker 02:
No, Your Honor.

[00:10:08] Speaker 02:
Because the A, as Judge Toronto correctly pointed out, it was after the time period had ended from that notice.

[00:10:16] Speaker 02:
But more importantly, it was not noticed to her and it was not noticed that she, as counsel pursuant to that remand, had 90 days to submit evidence.

[00:10:27] Speaker 03:
There was notice that the remand process was in play.

[00:10:33] Speaker 03:
So then she looks at that and says, gee, how much time do I have left?

[00:10:39] Speaker 03:
And I believe it was 67 days she had left.

[00:10:42] Speaker 03:
Why didn't she submit any evidence after that point?

[00:10:44] Speaker 02:
Well, because that presupposes that counsel understood the significance of that

[00:10:50] Speaker 02:
and actually discovered it.

[00:10:51] Speaker 02:
She certainly had the opportunity to discover it.

[00:10:54] Speaker 03:
Are you saying that she looked at the letter and couldn't tell from the letter that this was her case?

[00:10:59] Speaker 02:
I'm saying there is no evidence in this record, and it is my understanding that although she acknowledged the letter was in the file, that she did not recognize... She did not read the file, so she had no knowledge of what... Well, she may have read the file, Your Honor, but having read the file,

[00:11:19] Speaker 02:
And these are lots of pages.

[00:11:21] Speaker 02:
I can't remember the number of pages in this particular file.

[00:11:25] Speaker 00:
Roughly what?

[00:11:26] Speaker 00:
I mean, what are we talking about?

[00:11:27] Speaker 00:
This or this?

[00:11:28] Speaker 02:
Well, generally cases that run at least 500 to 1,000 pages, and sometimes they can be 3,000 to 5,000 pages.

[00:11:36] Speaker 01:
Your time is running low, Council.

[00:11:39] Speaker 01:
Do you want to talk about your other point, which is whether the joint motion for me remand and obviate the 4G sponsorship?

[00:11:48] Speaker 03:
In fact, you have run into your rebuttal time.

[00:11:50] Speaker 03:
Do you want to reserve it?

[00:11:52] Speaker 03:
I'll give you additional time because of our questioning.

[00:11:55] Speaker 03:
Why don't you answer Judge Clare's question, and I'll resource some of your time.

[00:12:00] Speaker 02:
The rule of law created by the Veterans Court limits the obligation in contradiction to this court's decision in Robinson of the board.

[00:12:08] Speaker 01:
All right.

[00:12:08] Speaker 01:
Now, I want to be sure I understand exactly what you're concerned.

[00:12:13] Speaker 01:
That seems to me to be a major issue beyond just the facts of this case.

[00:12:20] Speaker 01:
Correct.

[00:12:20] Speaker 01:
Are you challenging the decision of the board or are you challenging the remand decision of the court, the veterans court?

[00:12:34] Speaker 02:
The remand decision?

[00:12:35] Speaker 01:
You're challenging what the veterans court said on remand.

[00:12:42] Speaker 02:
On a rule of law that... In the remand.

[00:12:46] Speaker 02:
Yes, but there was no remand in this case because they affirmed.

[00:12:49] Speaker 02:
I'm just wanting to be clear that this rule applies to bar, in this case, Mr. Harmon, from presenting evidence, or excuse me, additional argument for the first time in court in the particular circumstances of this case, and then created a rule that said going forward, no counsel will be able to do that.

[00:13:09] Speaker 02:
They'll be limited by the terms of the JMR.

[00:13:11] Speaker 01:
But the original remand order to the board.

[00:13:15] Speaker 01:
Yes.

[00:13:16] Speaker 01:
had language in it saying, look at everything in the record.

[00:13:20] Speaker 02:
Yes.

[00:13:22] Speaker 01:
So did the board fail to do that?

[00:13:26] Speaker 02:
Yes.

[00:13:28] Speaker 01:
Are you challenging what the board did, or are you now challenging what the Court of Appeals did when it came back up to them?

[00:13:36] Speaker 02:
Counsel below, in the presentation of those arguments, attempted to do that, and argued that these issues were reasonably raised.

[00:13:45] Speaker 02:
We are challenging the Veterans Court decision that creates a rule of law that says that the joint remand can limit the obligation of the board on remand.

[00:13:55] Speaker 02:
That the terms of a joint remand will prevent the board from carrying out their duties under Robinson.

[00:14:04] Speaker 01:
Counsel, you have a small problem, which is that the terms of the joint remand

[00:14:11] Speaker 01:
On remand, the appellant should be free to submit additional evidence and argument regarding his claim.

[00:14:17] Speaker 01:
Further, the board should fully assist the appellant with his claim by re-examining the evidence of record and seeking any other evidence that is necessary to support its decision.

[00:14:30] Speaker 01:
That was the terms of the remand.

[00:14:32] Speaker 02:
That's right.

[00:14:33] Speaker 01:
So there is no issue about a remand limiting what the board could do.

[00:14:40] Speaker 01:
You might challenge what the board did, but you didn't do that.

[00:14:44] Speaker 02:
I don't understand.

[00:14:46] Speaker 02:
I'm sorry, Your Honor.

[00:14:47] Speaker 02:
I respectfully disagree with your analysis.

[00:14:49] Speaker 02:
What happened here was is that that was in the first remand order.

[00:14:53] Speaker 02:
Right.

[00:14:53] Speaker 02:
When that remand order got back up to court after the board made its new decision with the DAV as the representative, the arguments that were intended to be presented by Ms.

[00:15:03] Speaker 02:
Van Hoos were not presented.

[00:15:05] Speaker 01:
The arguments to the board or to the court?

[00:15:07] Speaker 02:
To the board.

[00:15:08] Speaker 02:
And she presented those issues for the first time to the court, which included an issue that there were issues reasonably raised that, by the very terms of that joint remand, should have been addressed by the board.

[00:15:22] Speaker 02:
And that that was clear error.

[00:15:23] Speaker 00:
I think this is the same point.

[00:15:25] Speaker 00:
The original remand order expressly gave you the authority to submit new evidence.

[00:15:34] Speaker 00:
Correct.

[00:15:38] Speaker 00:
Veterans court said in the ruling directly under review later about circumstances in which the remand order would or would not affect the board's authority could not possibly adversely affect you.

[00:15:55] Speaker 00:
Because the remand order in this case said, you get to put on new evidence.

[00:16:00] Speaker 00:
So this may be an interesting issue, but not in this case.

[00:16:03] Speaker 01:
That's exactly the point.

[00:16:04] Speaker 01:
It's all dicta.

[00:16:05] Speaker 01:
Everything the court said when it came up the second time is pure dicta.

[00:16:11] Speaker 01:
Why?

[00:16:13] Speaker 01:
Because its first remand order, as Judge Toronto has just explained, covered the whole world.

[00:16:20] Speaker 01:
So there was no limiting remand order

[00:16:23] Speaker 01:
for the court to talk about.

[00:16:26] Speaker 02:
But under their discretion, the Veterans Court refused to consider the arguments of error presented for the first time that had not been presented, that were authorized to have been presented, because there was no notice.

[00:16:43] Speaker 02:
That's the notice question.

[00:16:45] Speaker 02:
No, it's not the notice question, Your Honor, because when the issues were then presented to the court, the court refused to hear them.

[00:16:53] Speaker 02:
The Veterans Court refused to allow Mr. Carter's attorney to present those issues for the first time before the court.

[00:17:02] Speaker 01:
Oh, they should have been presented to the board, not to the court, and then on appeal to the court.

[00:17:08] Speaker 02:
And this is a chicken and the egg, Your Honor.

[00:17:10] Speaker 02:
The reason that they couldn't be presented was there was no notice.

[00:17:14] Speaker 02:
Ms.

[00:17:14] Speaker 02:
Spann whose intended to present those issues to the board, but was not given an opportunity to present.

[00:17:20] Speaker 03:
Let's hear from the government.

[00:17:24] Speaker 03:
Three minutes of rebuttal time.

[00:17:28] Speaker 04:
May I please the court?

[00:17:30] Speaker 04:
Because I sense we'll spend most of our time on issue one.

[00:17:32] Speaker 04:
Let me start with issue two, because I think it can be readily resolved.

[00:17:36] Speaker 04:
I understand counsel's argument, but the answer to it is found at pages 12 to 4 of the JA, which is the corrections court's decision.

[00:17:46] Speaker 04:
Let me just kind of summarize here.

[00:17:48] Speaker 04:
Judge Pleger, you're right.

[00:17:49] Speaker 04:
The remand order that sent it back incorporated basically the teachings of Robinson by saying, if there's something in the reasonably raised, the board needs to do it.

[00:17:59] Speaker 04:
So at that point, then, the board is on notice that it needs to do that.

[00:18:04] Speaker 04:
When it comes back up, the argument was made that the board didn't do that.

[00:18:08] Speaker 04:
And that's where in looking at what the board did, the veterans court said, well, you can look at a JMR for

[00:18:14] Speaker 04:
pointers as to what the board was supposed to do.

[00:18:16] Speaker 04:
But what the Beckins Court also did was to determine whether the board erred in not addressing these issues to the extent that they were reasonably raised.

[00:18:26] Speaker 04:
In other words, to the extent that they failed in their mission of following this court's decision in Robinson.

[00:18:32] Speaker 04:
And that's the JA-12-14 analysis.

[00:18:34] Speaker 04:
And that, I think, answers counsel's second question, which is, as you indicated, Your Honor, the board did get the proper remand order.

[00:18:43] Speaker 04:
The only question thereafter, putting aside this whole notice question, would be if an issue was reasonably raised.

[00:18:49] Speaker 04:
And if the board didn't look at an issue reasonably raised, perhaps they would have been in violation of this court's teachings in Robinson.

[00:18:55] Speaker 04:
But the Veterans Court actually confronted that issue at pages 12 to 14 of the JA and said, no, these issues were not reasonably raised.

[00:19:01] Speaker 04:
So there's no violation of Robinson.

[00:19:03] Speaker 04:
I think that answers the second issue.

[00:19:06] Speaker 01:
So you're agreeing with counsel that the key to the whole question

[00:19:12] Speaker 01:
We can ignore what the court said on the second round because we can focus on what the board failed to do.

[00:19:23] Speaker 01:
The board failed to take up the additional arguments that Ms.

[00:19:29] Speaker 01:
Van Hoos wanted to bring.

[00:19:32] Speaker 01:
And the reason they failed to do that was because

[00:19:36] Speaker 01:
Carter and his lawyer never got notice that this is what the board was about to do.

[00:19:41] Speaker 01:
So it all comes back to the notice problem.

[00:19:43] Speaker 04:
Well, that's a fair characterization of the first issue.

[00:19:48] Speaker 04:
But there could be a situation.

[00:19:50] Speaker 01:
But it makes the second issue understandable.

[00:19:52] Speaker 01:
Otherwise, what the court said in the second issue makes no sense at all.

[00:19:57] Speaker 04:
Well, let's just say that she had notice.

[00:20:00] Speaker 04:
In a different case, let's say she had notice.

[00:20:03] Speaker 04:
And so the issue was simply she didn't raise a particular argument.

[00:20:06] Speaker 04:
There's no notice, excuse, that she could raise to explain why she didn't raise it.

[00:20:12] Speaker 04:
But under Robinson, if an issue was reasonably raised by the record, notwithstanding silence by the object... She didn't raise it.

[00:20:20] Speaker 04:
Yeah.

[00:20:21] Speaker 04:
Even if she didn't raise it.

[00:20:22] Speaker 01:
They should have taken it up.

[00:20:24] Speaker 01:
Then the board under Robinson... Well, there's one little caveat on the head... The real problem in this case is the failure of the board.

[00:20:33] Speaker 01:
to have taken up all of the issues that the record presented.

[00:20:37] Speaker 04:
Well, that could be a problem.

[00:20:38] Speaker 04:
Now, there's two issues with respect to that.

[00:20:41] Speaker 04:
I'm sorry.

[00:20:43] Speaker 04:
For purposes of this case, I don't think the court needs to worry about it, because as it stands, the Vectors Court actually undertook the analysis that's required by Robinson to determine whether those issues were reasonably raised.

[00:20:54] Speaker 04:
In other words, to determine whether the board did err.

[00:20:56] Speaker 04:
And it found at pages 12 to 14 that they did not err.

[00:21:00] Speaker 04:
Now there's another question about Robinson that we raise in our briefs.

[00:21:03] Speaker 04:
But again, I don't think the court needs to deal with this section issue at all because even assuming that Robinson applies to the remand proceeding, and that's the challenge we raise, the Veterans Court here applied it.

[00:21:15] Speaker 04:
So there's no adverse consequences.

[00:21:19] Speaker 04:
and the court would simply be offering an advisory.

[00:21:21] Speaker 03:
You're arguing somewhat of a harmless error here.

[00:21:23] Speaker 03:
Yeah, I just sort of like... Should we revisit and take a look at this new rule?

[00:21:29] Speaker 04:
In an appropriate case, and I can advise the court that there will be some of those coming.

[00:21:33] Speaker 04:
It's not appropriate now because... I think the court would be acting in an advisory capacity at this point because there's no harm to the individual because all the court could do is to say, well, the Board should have looked at something reasonably raised,

[00:21:47] Speaker 04:
And they would say, did the veterans court consider that?

[00:21:50] Speaker 04:
And did they look to see whether the board, whether those were reasonably raised?

[00:21:53] Speaker 04:
Well, they did in this case.

[00:21:54] Speaker 03:
Well, it seems to me too, that the joint motion for remand also said.

[00:21:59] Speaker 03:
All other issues will be considered.

[00:22:01] Speaker 04:
See, that's one of the fatal weaknesses of the case in this particular case.

[00:22:05] Speaker 04:
The argument about the e-mail.

[00:22:06] Speaker 01:
It's a weakness for the government.

[00:22:08] Speaker 04:
No, not the weakness for bringing into this court's attention at this time.

[00:22:11] Speaker 04:
Because the idea behind the JMR argument is that the JMR can act as a limiting factor.

[00:22:17] Speaker 04:
I don't think that the court actually says the limiting factor.

[00:22:20] Speaker 04:
I think it says it's an informative factor.

[00:22:23] Speaker 04:
But in this particular case, because the JMR specifically required the board to do this,

[00:22:27] Speaker 04:
Kind of takes the Robinson issue right off the tape.

[00:22:30] Speaker 04:
So turning.

[00:22:31] Speaker 01:
So obviously something went wrong in this case.

[00:22:35] Speaker 01:
Now, what is it that you think his, if you were arguing for him, what is the thing that you would.

[00:22:44] Speaker 01:
Clearly, clearly Mr. Carter did not get what he was entitled to.

[00:22:51] Speaker 01:
What is it he didn't get that he's entitled to?

[00:22:53] Speaker 04:
I will just say, um,

[00:22:54] Speaker 04:
to respond to that and I'm going to, I will do what you ask your honor and I'll try to play.

[00:22:59] Speaker 04:
But I will say if the court noted below, there's actually no dispute in this record that Mr. Carter didn't get any of the notices.

[00:23:05] Speaker 04:
He actually did get the notices.

[00:23:07] Speaker 00:
Mr. Carter had a lawyer.

[00:23:08] Speaker 00:
The board knew who the lawyer was.

[00:23:10] Speaker 00:
Mr. Carter can reasonably rely on the lawyer to get notice and take care of things.

[00:23:16] Speaker 00:
She didn't get the notice before the deadline stated in the letter had passed.

[00:23:21] Speaker 04:
That's the problem.

[00:23:25] Speaker 04:
Factually, I'm not sure the board knew that she was the lawyer.

[00:23:29] Speaker 04:
The regional office knew and the Veterans Court knew, and that was what led to the delay in her getting the notice.

[00:23:33] Speaker 04:
Because the regional office got the notice that she had taken over, had to transfer that notice to the board who had the record.

[00:23:39] Speaker 00:
And then when the board got that notice... There's no dispute as the case comes to us, right?

[00:23:45] Speaker 00:
the board in sending it.

[00:23:47] Speaker 00:
You don't say there was no notice problem because... Well, there's absolutely a notice problem.

[00:23:53] Speaker 04:
The question for this court is, in dealing with the notice problem, did the veterans court err?

[00:23:59] Speaker 04:
Now, the veterans court looked at the notice problem and said, yes, we agree.

[00:24:03] Speaker 04:
She didn't get the letter when she should have, but she actually did get the letter before the board issued that decision.

[00:24:08] Speaker 04:
And yet, waited 18 months or 12 months at that point to do anything about it.

[00:24:14] Speaker 00:
She had an absolute right under the letter for 90 days, which had run by the time she got the file in December.

[00:24:26] Speaker 04:
That kind of depends on how you read the order, because if the order is read 90 days from receipt of the 90 day letter, then she had a 90 day letter.

[00:24:32] Speaker 00:
That's not what it says.

[00:24:33] Speaker 00:
It says the mailing.

[00:24:34] Speaker 00:
It expressly says the mailing.

[00:24:36] Speaker 04:
actually, and so there's no dispute that Mr. Carter did get the notice here, but his counsel didn't, and I accept that.

[00:24:43] Speaker 00:
There's no question that she could have done more.

[00:24:45] Speaker 00:
She could have been proactive.

[00:24:48] Speaker 00:
The question is, does that render harmless the, I think, clear notice violation where she did not, in fact, get sent by the board the notice of the 90-day period until the 90-day period has come to an end?

[00:25:05] Speaker 00:
I don't even think that the Veterans Court squarely faced that question.

[00:25:09] Speaker 00:
They talked about some other things like the Matthews case, which wasn't about notice of a deadline once the deadline had run.

[00:25:17] Speaker 00:
That was a case about notice, you know, in August of whatever it was, started the clock.

[00:25:22] Speaker 00:
So the time had not run.

[00:25:24] Speaker 00:
Even completely putting aside the question of whether this was a 12,000 page plain file and the letter was hard to find, let's assume she got it in December.

[00:25:34] Speaker 00:
It was too late for the absolute right to put on the evidence.

[00:25:39] Speaker 00:
How is that harmless?

[00:25:40] Speaker 04:
Well, if I were her, well, no, I'm not going to argue this for her because this hurts her, but you're focusing on the date of the letter of the notice, right?

[00:25:49] Speaker 04:
So, I mean, and every action I have to your question, your honor is why, where does it say that in Kucerowski?

[00:25:57] Speaker 04:
So she gets 90 days from the date that the.

[00:26:01] Speaker 04:
Notice is mailed to her.

[00:26:02] Speaker 04:
Well, the date, the date in this case was like December of 2010.

[00:26:06] Speaker 04:
It was part of this other letter, the cover letter containing the record.

[00:26:11] Speaker 00:
Has the board ever indicated that the 90 day from the mailing of the letter is not from the mailing to the appellant, but rather the mailing to

[00:26:23] Speaker 00:
Um, to the lawyer.

[00:26:25] Speaker 04:
I don't know if the board has ever said that, but I can say that that appears to be a consideration taken into account by the court in this case, where counsel conceded before the court that she was in receipt of the letter in December, 2010.

[00:26:36] Speaker 01:
Wait a minute, wait a minute.

[00:26:37] Speaker 01:
What letter was she in receipt of?

[00:26:39] Speaker 01:
She was in receipt of the letter to the law and lawyer.

[00:26:43] Speaker 01:
She never, there was never a letter mailed to Ms.

[00:26:47] Speaker 01:
Van Hooch.

[00:26:48] Speaker 01:
No letter was mailed.

[00:26:49] Speaker 04:
The 90-day letter was not contained there.

[00:26:50] Speaker 01:
She was never in receipt of a letter to her at any time because it was mailed to the wrong lawyer in the wrong address.

[00:26:59] Speaker 01:
It happened to be in the file when she looked at it and whatever she made of it, it's hard to tell from the record.

[00:27:08] Speaker 01:
The 90-day period technically doesn't run until the letter is mailed to the proper person.

[00:27:18] Speaker 01:
Isn't that right?

[00:27:19] Speaker 04:
That's the, that would appear to be a rule of law created by the Kucharowski decision.

[00:27:23] Speaker 04:
It's not a regulation that applies, but that if the court were to go down this road, you would be looking at Kucharowski, not 20.1304, which does not apply.

[00:27:35] Speaker 01:
Whatever it is we're looking at, everyone, including you,

[00:27:40] Speaker 01:
assumes that the 90-day period runs from the mailing of the letter to the person to whom it's supposed to go.

[00:27:51] Speaker 01:
It was supposed to go to Mrs. Van Hoose.

[00:27:54] Speaker 01:
The fact that the board and the court never talked to each other and the clerks got the name screwed up is not her problem.

[00:28:02] Speaker 01:
That's the administration's problem.

[00:28:05] Speaker 04:
So I think, though, what you have in this case is a veterans court

[00:28:08] Speaker 04:
decision, which says, that's true, there was a notice problem here.

[00:28:12] Speaker 04:
But they looked at the rest of the record and determined that she did not act diligently until therefore they were not going to basically remand for reconsideration of these newly raised issues.

[00:28:28] Speaker 00:
But what's the form?

[00:28:29] Speaker 00:
I couldn't quite understand what the Veterans Court was doing.

[00:28:33] Speaker 00:
Let's assume she did not act.

[00:28:36] Speaker 00:
diligently even include that word.

[00:28:40] Speaker 00:
That doesn't seem to me to be an analysis of harmless error of a clear notice violation.

[00:28:47] Speaker 04:
So where is the... I think they looked at it more as a generic due process approach.

[00:28:52] Speaker 04:
Did she have an opportunity to meaningfully participate in the board process?

[00:28:56] Speaker 04:
And they held that she did.

[00:28:58] Speaker 00:
That she had the opportunity because she could have requested the board to exercise its discretion to waive

[00:29:06] Speaker 00:
the quite explicit 90-day deadline in the letter, having received notice of that after the deadline passed.

[00:29:13] Speaker 04:
So that's not like something that... Is there any harmless error case that goes like that?

[00:29:19] Speaker 04:
That argument is not out of thin air, Your Honor, because Kucharski relies on 20.1304 for the 90-day rule.

[00:29:26] Speaker 04:
20.1304 has a good cause exception, which specifically allows people to submit evidence to the board and argument after the expiration of the 90 day period, if they can establish good cause.

[00:29:37] Speaker 04:
Now not getting noticed generally is good cause.

[00:29:40] Speaker 04:
So the veterans court has a strong basis to say the whole logic underpinning Kucherewski supports a finding that if she never got the notice, she could clearly meet any kind of good cause exception that the board might consider.

[00:29:55] Speaker 04:
So, yes, she could have come in after the 90 days after never having received a letter and said, look, I never got this letter.

[00:30:03] Speaker 04:
I have evidence and argument.

[00:30:04] Speaker 04:
And the board, as the Veterans Court found and held in this case and essentially could be treated as a rule of law on this case, said, yes, she would have been able to come in after the fact.

[00:30:13] Speaker 04:
Given the evidence, the board would have been required, as the Veterans Court said in this case, required

[00:30:17] Speaker 00:
to take that up until the time she- I don't think the- point me.

[00:30:21] Speaker 00:
My recollection is that the Veterans Court did not say the board would have been required to take the evidence.

[00:30:26] Speaker 00:
I think it said only that the board would have been required to consider her argument when she threw herself at the mercy of the board and said, it's too late, but please consider it.

[00:30:39] Speaker 04:
I think that's what she was arguing about before then was, I mean, it looks like she was characterizing these things as arguments.

[00:30:45] Speaker 00:
Pages 12 or 13 or something.

[00:30:47] Speaker 04:
That's where they do the analysis of whether the issues were reasonably raised.

[00:30:53] Speaker 04:
But at the last few pages, 15 and 16, they talk about the timing of it all.

[00:31:00] Speaker 04:
And that's where they talk about... 15 or 16, yeah.

[00:31:07] Speaker 04:
More 16 where they're talking about, they found that her appeal to the court was timely because it was based upon the fact that she received the appeal in December 2012.

[00:31:18] Speaker 00:
Right, but there's a different rule about timeliness of appeal and when those clocks start.

[00:31:23] Speaker 00:
This letter from the board, which she didn't get until December, said, you have to submit evidence within 90 days of our mailing of this letter to Mr. Carter, which was early August,

[00:31:37] Speaker 00:
That time ran in early November.

[00:31:40] Speaker 00:
Assume that when she got the claim file in December, she studied it and looked at it.

[00:31:46] Speaker 00:
It may not have been the most zealous thing to do, but really for her, you're saying she had to read this and say, oh, well, the letter says one thing.

[00:31:57] Speaker 00:
I know that we can basically get relief and count on that as

[00:32:04] Speaker 00:
as a ground for harmless error of the failure of notice.

[00:32:08] Speaker 00:
I don't think the Veterans Court goes that far.

[00:32:10] Speaker 04:
Page JA-15, final sentence, and it goes on to the top of JA-16.

[00:32:14] Speaker 04:
This is a statement by the Veterans Court.

[00:32:16] Speaker 04:
Whether by error or admission or a conscious decision not to act, you simply did not do so.

[00:32:21] Speaker 04:
During the 12-month period between December 2010 and 2011, Attorney Van Hoos could have raised arguments to the board, and the board would have been required to consider them despite the board's issuance of its decision during that period.

[00:32:34] Speaker 04:
That's, that's what they're saying.

[00:32:35] Speaker 00:
The board had to, it doesn't use the term evidence.

[00:32:39] Speaker 00:
It says, I mean, your honor, we're talking about the trouble is what seems to be going on here is a kind of backfilling to simply excuse a really quite plain notice violation.

[00:32:55] Speaker 00:
Um, saying, well, you know, she could have done a variety of things that she was not required to do, even though we messed up in, in not giving the, in not giving the notice.

[00:33:06] Speaker 04:
I think what the veterans court did here and it's entirely within its discretion to do is to look at the totality of the circumstances.

[00:33:13] Speaker 04:
Neither party performed admirably in this.

[00:33:16] Speaker 04:
When you get a claims file and don't bother to look at it for 12 months, that's not good.

[00:33:21] Speaker 04:
And neither is sending the wrong notice to the wrong address.

[00:33:24] Speaker 04:
Neither party acted.

[00:33:26] Speaker 04:
admirably.

[00:33:27] Speaker 04:
But what the Veterans Court held here in this case is, ultimately, there were tools available for Attorney Van Hoos to properly cure the problem, and she didn't take advantage of them.

[00:33:38] Speaker 04:
And to the Veterans Court, that tilted the scales.

[00:33:40] Speaker 04:
And I just want to add to your honor, in reading the rest of the paragraph on page JA16, the conclusory sentence says, therefore, neither Mr. Carter nor counsel were prevented from presenting additional argument or evidence, but rather opted not to do so.

[00:33:54] Speaker 04:
So I don't think

[00:33:55] Speaker 04:
On this decision, we can find that the abductionist court dealt with anything but both the argument and the evidence and held that she had, because of their interpretation of their rule of law in Kuchakowsky and their interpretation of how 1304 and its language would apply in this situation, she had the right, given the failure to receive the notice, to go to the board after the 90-day

[00:34:19] Speaker 04:
Appeal ended after the 90-day appeal started and ended and submit evidence.

[00:34:22] Speaker 04:
And as the Veterans Court said in this case, the board would have been required to consider it.

[00:34:26] Speaker 03:
Councilor, you're over your time.

[00:34:29] Speaker 03:
I can give you just like two minutes.

[00:34:31] Speaker 03:
Does the court have any questions?

[00:34:32] Speaker 03:
Do you have any other questions?

[00:34:33] Speaker 03:
No.

[00:34:34] Speaker 03:
Thank you very much.

[00:34:44] Speaker 02:
May it please the court.

[00:34:45] Speaker 02:
I'd like to try to give a little more context to this case, because it seems to me that one of the things that the Veterans Court did not consider in its represented totality of circumstances analysis is the fact that much of what has been discussed here is supposition about what Ms.

[00:35:03] Speaker 02:
Van Hoos could have done.

[00:35:06] Speaker 02:
Now, what in fact Ms.

[00:35:07] Speaker 02:
Van Hoos did was when she was informed 11 months after the board decision was made,

[00:35:14] Speaker 02:
was to file a notice of appeal with the Veterans Court.

[00:35:17] Speaker 02:
Clearly, that filing was untimely.

[00:35:20] Speaker 02:
The Secretary moved to dismiss the appeal because it was untimely.

[00:35:24] Speaker 02:
When the Secretary was informed that the notice did not go to Ms.

[00:35:28] Speaker 02:
Van Hoos, but in fact went to the disabled American veterans, they withdrew the motion.

[00:35:35] Speaker 02:
So all of the supposition about what she could or might have done is not relevant to the

[00:35:42] Speaker 02:
firm, clear obligation under Kucerowski to give notice to the attorney that was the actual representative.

[00:35:51] Speaker 02:
That attorney never got the notice.

[00:35:54] Speaker 02:
This case should have never been taken up by the veterans.

[00:35:58] Speaker 03:
Well, your opponent is saying that, that, um, had she gone to the board and said, look, I never gotten notice.

[00:36:04] Speaker 03:
There's good cause for you to reinstate the 90 days that it would have been given to her.

[00:36:08] Speaker 03:
but that that never happened.

[00:36:10] Speaker 02:
And that presupposes knowledge on her part that, A, she understood the meaning of the notice that was in the claim file, and B, that she made a conscious decision not to do that.

[00:36:23] Speaker 02:
There is no evidence in this record to that effect.

[00:36:26] Speaker 02:
That is an assumption.

[00:36:28] Speaker 02:
That is mere speculation about, in 2020 hindsight, you know.

[00:36:34] Speaker 03:
Are we looking at whether she had the opportunity in order to be heard?

[00:36:38] Speaker 03:
Not whether she was hurt or not.

[00:36:40] Speaker 02:
And the opportunity is controlled by Kucharowski and by the rule of law created in Kucharowski.

[00:36:47] Speaker 01:
What the government responds, Mr. Carpenter, seems to be that the court, the veterans court on the second round, concluded that the board had done what it would have done.

[00:37:07] Speaker 01:
had she appeared timely before it, with whatever additional matters she had, because the board did what the remand said, which was to look at the whole case.

[00:37:21] Speaker 01:
And the board looked at the whole case and said, no.

[00:37:25] Speaker 01:
And the Veterans Court said, OK, we'll look at the whole case and see if the board did it right, and we do, basically making

[00:37:36] Speaker 01:
Carter's counsel somewhat irrelevant, but nevertheless giving Carter all that fair process requires him to get, i.e.

[00:37:47] Speaker 01:
no harm, no foul.

[00:37:49] Speaker 01:
What's wrong with that response by the government?

[00:37:52] Speaker 02:
What's wrong with that response by the government is that that took place in an adversarial arena.

[00:37:59] Speaker 02:
What was supposed to have taken place was supposed to have taken place in a non-adversarial arena.

[00:38:06] Speaker 02:
These arguments that were presented by Ms.

[00:38:08] Speaker 02:
Vanhooze to the court should have been presented to the board in a non-adversarial context.

[00:38:15] Speaker 02:
And the board, it is, in my view, totally inappropriate for the court to imagine what might have happened had the board done that.

[00:38:25] Speaker 02:
That goes beyond the bounds of judicial review.

[00:38:28] Speaker 02:
They're not reviewing a decision.

[00:38:30] Speaker 02:
They're reviewing a decision that didn't happen.

[00:38:33] Speaker 02:
based upon arguments and evidence that were not presented.

[00:38:37] Speaker 03:
Well, we're not being asked to speculate on that point.

[00:38:40] Speaker 03:
The government is saying, by law, this is what we would have done.

[00:38:44] Speaker 03:
By law.

[00:38:46] Speaker 02:
But by law, they were required to give notice.

[00:38:50] Speaker 02:
By law, they didn't give that notice.

[00:38:53] Speaker 02:
And as a consequence, the entire process was tainted before the board.

[00:38:58] Speaker 02:
And the court used the adversarial context that the court

[00:39:02] Speaker 02:
to justify its decision about an event that happened in a non-adversarial context.

[00:39:07] Speaker 03:
So you're raising a due process claim.

[00:39:10] Speaker 03:
Yes.

[00:39:10] Speaker 03:
And that goes to the opportunity to be heard.

[00:39:13] Speaker 03:
And your client was not heard.

[00:39:18] Speaker 03:
But the question in my mind is, did she have the opportunity to be heard?

[00:39:22] Speaker 03:
And she did have the opportunity to go to the board and say, look, I have a problem here.

[00:39:28] Speaker 03:
I have a notice problem.

[00:39:30] Speaker 03:
I want you to restore my 90 days."

[00:39:32] Speaker 03:
And the government is saying, had that happened, she would have gotten the 90 days.

[00:39:36] Speaker 03:
So it seems that there was the opportunity to be heard.

[00:39:40] Speaker 03:
And that works to undermine your due process claim.

[00:39:45] Speaker 03:
There's a good cause claim here, but that's not before us.

[00:39:51] Speaker 02:
But Your Honor, I think what distinguishes fair process from due process is that it has to be looked at through the lens

[00:40:00] Speaker 02:
of the pro-veteran scheme.

[00:40:04] Speaker 02:
And this pro-veteran scheme is about what was supposed to have happened at the board.

[00:40:10] Speaker 02:
What was supposed to have happened at the board was a meaningful opportunity for Mr. Carter's counsel to have participated.

[00:40:17] Speaker 02:
That just simply didn't happen.

[00:40:20] Speaker 02:
And all of the supposition about how she could have done something does not erase

[00:40:25] Speaker 02:
that denial of due process and that denial of a fair process in a non-adversarial arena.

[00:40:32] Speaker 00:
Yes, Joe.

[00:40:34] Speaker 00:
If one read the Veterans Court material that Mr. Hockey was talking about at 15 and 16 as a kind of

[00:40:48] Speaker 00:
harmless error or something discussion because starting from December 2010, when maybe one could say that the lawyer had constructive notice of the letter and one could hold her to that.

[00:41:02] Speaker 00:
And then even though the deadline had passed, she could have approached the board and had 67 days.

[00:41:11] Speaker 00:
And I mean, she didn't know what the time was going to be, but in fact had 67 days before the board actually ruled and

[00:41:18] Speaker 00:
Surely the board would have taken and fully considered the evidence without any difference from how it would have done had it been submitted on day 70.

[00:41:33] Speaker 00:
Was that kind of good cause as a matter of law established in the law before this decision?

[00:41:42] Speaker 00:
And what, if anything, can you tell us about the general

[00:41:47] Speaker 00:
experience in practicing before the board about whether everybody really ought to have known that.

[00:41:53] Speaker 00:
And this is not, not some after the fact justification or whether she really could have counted on that.

[00:42:06] Speaker 03:
And you have limited time to answer that.

[00:42:09] Speaker 02:
And I'm sorry.

[00:42:10] Speaker 02:
He asked me a lot of information.

[00:42:13] Speaker 02:
But go ahead and answer the question as much as you can.

[00:42:16] Speaker 02:
As best as I think I'm able, it is accepted practice that, if you will, the proceedings before the board on remand do not commence anew until you've received the notice.

[00:42:31] Speaker 02:
And to that extent, I believe that that is both common practice by the board and accepted practice by counsel.

[00:42:39] Speaker 02:
To that extent, then, I think it does then create an expectation that there is nothing I need to do, which is probably not a valid assumption, before I get that notice.

[00:42:53] Speaker 02:
And therein, I think, lies the potential rub here.

[00:42:57] Speaker 02:
But Your Honor, I think we're missing the point about

[00:43:01] Speaker 02:
the nature of this violation of fair process in a system that is supposed to be non adversarial.

[00:43:08] Speaker 02:
We're not supposed to be playing gotcha.

[00:43:12] Speaker 02:
And the error here was in failing to give notes.

[00:43:15] Speaker 02:
And once that started.

[00:43:16] Speaker 03:
I think we have just your argument.

[00:43:18] Speaker 03:
Thank you very much.