[00:00:02] Speaker 04:
The first argued case this morning is number 14, 7137, Mulder v. McDonald v. West.

[00:00:14] Speaker 02:
Thank you, Your Honor.

[00:00:19] Speaker 02:
Good morning, Your Honors.

[00:00:20] Speaker 02:
Opposing counsel amazed the court.

[00:00:22] Speaker 02:
My name is Travis West.

[00:00:23] Speaker 02:
I'm here from Milwaukee, Wisconsin on behalf of Mr. Donald Mulder in the case of Mulder v. McDonald.

[00:00:30] Speaker 02:
This case originally started out as a difference of opinion with respect to the interpretation of 38 USC 5313 between the Secretary of the VA and Mr. Mulder and now has become a bit more complex in that the Court of Appeals for Veterans Claims has set forth an interpretation of that statute that actually differs with the previous interpretations and the continuing interpretations of the parties involved

[00:01:00] Speaker 02:
Specifically, I refer to page five of the lower court's opinion in which the court delineated four elements that the VA must establish for presence before the VA secretary is not just permitted but required to reduce the benefits of a veteran who has been incarcerated.

[00:01:24] Speaker 02:
The problem is that both the secretary and Mr. Mulder agree

[00:01:28] Speaker 02:
that there is an access component between the reason why the veteran is incarcerated and the conviction.

[00:01:37] Speaker 03:
Well, I don't think the lower court really would disagree with that.

[00:01:41] Speaker 03:
I think the lower court said those things all have to exist, but the by reason of or for also has to exist.

[00:01:53] Speaker 02:
I understand your Honor's position.

[00:01:56] Speaker 02:
I would respectfully

[00:01:58] Speaker 02:
point, Your Honor, to the four elements that are delineated and actually enumerated as one through four at the top of page five.

[00:02:06] Speaker 02:
And if you look at element number three, the lower court has actually removed the word four and inserted the word up, which, at least when read on its face, appears to indicate that there is no longer a connection between that conviction and the reason why the particular individual is sitting in a penal institution.

[00:02:27] Speaker 02:
Now I understand that the secretary's counsel has attempted to massage that issue a bit in their brief, but when we look at that particular language within the lower course decision itself, that preposition is no longer present at least within the course decision.

[00:02:47] Speaker 03:
So even if you think we need to fix that language, that doesn't solve your problem, does it?

[00:02:52] Speaker 02:
No, it's just one part of it, Your Honor.

[00:02:53] Speaker 02:
That's correct.

[00:02:55] Speaker 02:
The crux of the problem here is that there's no dispute that Mr. Mulder was convicted.

[00:03:01] Speaker 02:
The court accepted his plea in May of 2006.

[00:03:06] Speaker 02:
There's no dispute that he was sentenced a month later in June of 2006.

[00:03:10] Speaker 02:
The problem is that Mr. Mulder wasn't sitting in jail because of his conviction between the month of May and month of June.

[00:03:18] Speaker 02:
He was sitting in jail because he could not make bail under the Wisconsin Bail Statute,

[00:03:24] Speaker 02:
largely similar to the federal version that's been cited in both of the briefs.

[00:03:30] Speaker 02:
The government has argued that it's sufficient for a veteran to be sitting in jail or to be incarcerated based on that bail statute.

[00:03:43] Speaker 02:
Mr. Mulder has taken the position that the bail statute isn't sufficient because the specific language of the statute requires

[00:03:50] Speaker 02:
that the incarceration be for the felony conviction.

[00:03:55] Speaker 02:
In this case, under the bill statute, nobody knows whether the defendant is ever going to be incarcerated at all.

[00:04:03] Speaker 02:
The court has, depending upon the crime, any number of options available.

[00:04:07] Speaker 03:
Isn't it in fact true that once you're actually convicted of a crime that it's harder to make bail?

[00:04:12] Speaker 02:
That is true in most jurisdictions.

[00:04:15] Speaker 02:
I suppose I can't speak for all 50 states in the territories, but I can tell you from my experience in Wisconsin, it is generally more difficult to make bail once you have been convicted.

[00:04:26] Speaker 02:
Although, regardless of whether it's more difficult or not more difficult, the criteria that the court is required constitutionally to rely upon don't change.

[00:04:36] Speaker 02:
In other words, bail during that time period, its purpose remained

[00:04:41] Speaker 02:
either to ensure the safety of the population or to ensure and or to ensure that the defendant is going to show up for the next proceeding, which in this case would be the sentencing hearing.

[00:04:53] Speaker 03:
But if in fact there is ultimately a sentence of incarceration, then all of that time is credited as if it were being served for the conviction, correct?

[00:05:05] Speaker 02:
That is true.

[00:05:06] Speaker 02:
The Wisconsin Supreme Court has declared that it constitutionally must be credited

[00:05:10] Speaker 02:
that also brings Wisconsin in line with the model penal code.

[00:05:14] Speaker 02:
So you are correct, Your Honor, that that time would be credited.

[00:05:17] Speaker 02:
Although that particular issue then gets into the question of whether the Secretary's decision to, in essence, penalize the veteran for part of the time that gets credited is arbitrary and capricious because the Secretary isn't arguing that

[00:05:37] Speaker 02:
that the effective date of the reduction in benefits should go all the way back to the first instance in which the veteran was incarcerated, which in this case would have been in the summer of 2005 for Mr. Mulder.

[00:05:49] Speaker 02:
The secretary is only saying, we're going to penalize you.

[00:05:53] Speaker 02:
We're going to take away your benefits for a small portion of that, or perhaps a large portion.

[00:05:57] Speaker 03:
Isn't it a fair distinction to say that there was no conviction at the point of the initial incarceration?

[00:06:03] Speaker 01:
That is correct, your honor, but the bail statute and the... I understand you want to focus on the bail statute, but you know, we're here to focus on the relevant federal statute, which really talks about conviction.

[00:06:16] Speaker 01:
And so, I mean, that's why it's eminently reasonable to have the conviction date be the trigger date, not the date of incarceration.

[00:06:26] Speaker 01:
I mean, as soon as you're convicted, there's been an adjudication of guilt or

[00:06:32] Speaker 01:
or innocence, and at that point in time, you are incarcerated as a result of your conviction.

[00:06:42] Speaker 02:
With all due respect, Your Honor, we disagree with that, largely because once you have been convicted, there is still a process under which the court has to determine if you're going to be incarcerated at all.

[00:06:57] Speaker 02:
The court could take any number of actions.

[00:07:00] Speaker 02:
At that point, once the plea has been accepted, which is the date of conviction in this case, the court has, and then constitutionally, is not permitted to have any idea as to what the ultimate outcome of the case would be.

[00:07:13] Speaker 01:
I don't know how we can get around, or you can get around, Wilson versus Gibson.

[00:07:18] Speaker 01:
I think, doesn't the logic of that opinion sort of strongly guide us toward a similar outcome here?

[00:07:26] Speaker 01:
I mean, there, this court said,

[00:07:30] Speaker 01:
It defined the meaning of conviction as used in this particular statute and said it doesn't say anything about conviction until all final appeals are exhausted.

[00:07:42] Speaker 01:
And likewise, the statute doesn't say conviction until there's an actual final sentence either.

[00:07:49] Speaker 01:
It just says conviction.

[00:07:51] Speaker 01:
And so because the court there said so the date of conviction is the trigger date for this 60-day time period.

[00:07:59] Speaker 01:
Why wouldn't that likewise be the same outcome here?

[00:08:02] Speaker 02:
So the distinction, I think, Your Honor, is that in Wilson, what the appellant was arguing was that the conviction has to be final in some sense.

[00:08:13] Speaker 02:
In other words, all the appeals have to be exhausted and the habeas opportunities have to be exhausted.

[00:08:18] Speaker 02:
And we're not taking that position.

[00:08:20] Speaker 02:
We don't take the position that Mr. Mulder's conviction wasn't final within the meaning of Wilson

[00:08:26] Speaker 02:
There's an additional problem with Wilson in that that addresses, in Wisconsin we would call it discretionary bail that a defendant is entitled to after conviction.

[00:08:40] Speaker 02:
In other words, in Wisconsin, prior to the entry of the judgment of conviction and the imposition of the sentence,

[00:08:49] Speaker 02:
The court doesn't have discretion as to whether or not it's going to make a bail determination.

[00:08:53] Speaker 04:
If you're not arguing that the conviction doesn't have to be final, the statute, the federal statute requires incarceration as well as conviction.

[00:09:04] Speaker 04:
And so you, what you're asking us to do is then is to qualify all of this, that if all of this happens because the incarceration was because Mr. Mulder wasn't able to make bail.

[00:09:19] Speaker 04:
But you're agreeing that the conviction was final.

[00:09:22] Speaker 04:
So I'm not sure I understand how you want to reinterpret the statute in a way that would avoid these specific words of both incarceration and conviction.

[00:09:33] Speaker 02:
Your honor, we're not asking to reinterpret the statute.

[00:09:36] Speaker 02:
We're asking that the statute be read in its entirety.

[00:09:39] Speaker 04:
The statute requires... The entirety includes all of this plus the 61 days?

[00:09:44] Speaker 02:
Correct, your honor.

[00:09:45] Speaker 02:
And the statute specifically says

[00:09:48] Speaker 02:
that those 61 days that the person has been incarcerated have to be for the conviction.

[00:09:53] Speaker 02:
It doesn't say that we can count time that the person was sitting in jail for other purposes, which is what happened in Mr. Mulder's case.

[00:10:00] Speaker 02:
He was sitting in jail because he was unable to make bail.

[00:10:03] Speaker 02:
He was not sitting in jail because of his conviction.

[00:10:06] Speaker 03:
I agree with you that to determine whether or not a conviction occurred, you have to look at state law because that's what defines a conviction for purposes of what is a conviction.

[00:10:17] Speaker 03:
So accepting the proposition that we look at Wisconsin law to say, was he convicted?

[00:10:21] Speaker 03:
You agree he was convicted?

[00:10:23] Speaker 03:
We agree, Your Honor.

[00:10:25] Speaker 03:
But interpreting the federal statute, the language of the four, or to put it in a better way, probably by reason of, since we are talking about, as you say, a causal connection, why are we focusing on Wisconsin law for that?

[00:10:44] Speaker 03:
Shouldn't that be a consistent interpretation of federal law that could apply across all states, regardless of how their post-conviction bail statutes operate?

[00:10:54] Speaker 02:
Well, we have to look at the reason why he's sitting in jail, for lack of a better explanation, because that's what the statute tells us to do.

[00:11:02] Speaker 02:
And if we look at the remainder of the statute, this isn't the only circumstance in which we have to look at whatever the relevant jurisdiction is doing.

[00:11:10] Speaker 02:
For example, the statute discusses and the code discusses and also the VA's own manual discusses that if the prisoner or the defendant who has become the prisoner is on a work release program, then the reduction in benefits isn't to apply.

[00:11:24] Speaker 02:
Every state has a different work release program, Your Honor, and every state has different requirements.

[00:11:29] Speaker 02:
For example, in Wisconsin, the work release program isn't going to be an eligibility for it, isn't necessarily going to be addressed in the judgment of conviction itself, it's going to be addressed by the Department of Corrections.

[00:11:39] Speaker 02:
So now all of a sudden, we're looking at

[00:11:40] Speaker 02:
all sorts of bureaucratic issues that the statute contemplates and the VA's own code contemplates.

[00:11:51] Speaker 03:
But that's consistent with the whole purpose of the statute, is it not?

[00:11:54] Speaker 03:
Whether or not you love legislative expressions of their desire, it's pretty clear here that the point of the statute was to say if you're incarcerated and you're getting

[00:12:06] Speaker 03:
you know, whether you like them or not, three meals a day and a roof over your head, that you shouldn't also get VA benefits to help with your subsistence.

[00:12:15] Speaker 03:
And that's why there would be exceptions that say if you're on work release, so you're not getting all that, then you can get your benefits.

[00:12:24] Speaker 02:
Correct, Your Honor, except that it's not just if you're incarcerated, but if you're incarcerated because of your felony.

[00:12:30] Speaker 02:
I mean, that's the specific language of, I'm using because of instead of for, because that's the language that's been agreed upon in the brief as this is what for means.

[00:12:38] Speaker 02:
But that's specifically what the statute says and what the code says.

[00:12:44] Speaker 02:
And if Congress had intended it to be differently, it could have drafted language that said anytime you're incarcerated,

[00:12:51] Speaker 02:
it counts towards the 60 days, but it didn't do that.

[00:12:54] Speaker 02:
It specifically put that preposition for or because of the felony conviction into the statute.

[00:13:01] Speaker 02:
We think that Congress should be given the benefit of the doubt.

[00:13:05] Speaker 02:
Not just we think, but the case law says that Congress intends the words that it puts into the statute.

[00:13:11] Speaker 02:
We can't just ignore them because

[00:13:14] Speaker 02:
It might be easier if we can point to a conviction date rather than having to figure out why the person is actually behind bars to begin with.

[00:13:23] Speaker 04:
Let's hear from the government and we'll save you rebuttal time.

[00:13:26] Speaker 02:
Thank you, Your Honor.

[00:13:31] Speaker 04:
Ms.

[00:13:31] Speaker 04:
Bond.

[00:13:36] Speaker 00:
May it please the court.

[00:13:38] Speaker 00:
The reduction in benefits provision is triggered when a veteran is first incarcerated for conviction

[00:13:43] Speaker 00:
of a felony.

[00:13:45] Speaker 00:
Under this provision, Mr. Mulder was incarcerated for a conviction of a felony when he pled no contest to a felony charge on May 19th and was remanded to the county jail for that reason on the same day.

[00:13:57] Speaker 00:
The crux of Mr. Mulder's argument here today is that at that time his incarceration was not for the conviction.

[00:14:06] Speaker 00:
But as your honor pointed out, at that time he was convicted and the conviction provides the authorization

[00:14:13] Speaker 00:
for the incarceration, and so that provides the necessary causational link between the incarceration... But he was incarcerated before the date of conviction, correct?

[00:14:21] Speaker 03:
That's correct.

[00:14:22] Speaker 03:
So it was the detention that provided the initial authorization for the incarceration and the inability to make bail, right?

[00:14:30] Speaker 00:
Well, the underlying... We disagree that the bail statute itself is ever related to the underlying authorization for the incarceration.

[00:14:39] Speaker 00:
bail statute is relevant to whether the individual is released and therefore no longer incarcerated.

[00:14:45] Speaker 00:
The authorization for the state to incarcerate Mr. Mulder before his conviction was the state's interest in preserving him and presenting him at trial.

[00:14:55] Speaker 00:
Upon his plea of no contest to the felony charge, that authorization no longer existed because there would be no trial.

[00:15:03] Speaker 00:
He had already been convicted.

[00:15:05] Speaker 03:
But individuals are freed on bail

[00:15:08] Speaker 03:
post conviction in many, many circumstances, are they not?

[00:15:13] Speaker 00:
Correct.

[00:15:14] Speaker 00:
And if an individual is released on bail, then the statutory requirements for the reduction are not satisfied because that person is not incarcerated.

[00:15:23] Speaker 00:
So the bail statute does not break

[00:15:26] Speaker 00:
the chain of causation between incarceration and conviction, which as your honor noted, it exists because of the conviction.

[00:15:35] Speaker 00:
The bail statute does not break that causational link.

[00:15:37] Speaker 03:
What if there's a sentence of probation that ultimately occurs?

[00:15:41] Speaker 03:
Then he's never actually incarcerated for his convictions and he wouldn't get any credit for time served.

[00:15:48] Speaker 00:
In that instance, the veteran would not be sentenced to a term of imprisonment.

[00:15:53] Speaker 00:
for the conviction, but that's different than saying that he's not incarcerated for the conviction.

[00:15:59] Speaker 00:
Incarceration is a broader term and simply as this court, well actually as the Veterans Court interpreted and this court affirmed in one list, incarceration means confinement.

[00:16:09] Speaker 00:
And so here the statute requires confinement in a penal institution.

[00:16:13] Speaker 00:
And that exists, as Mr. Mulder's own case shows, that can exist when there's no outstanding sentence of imprisonment.

[00:16:21] Speaker 00:
So the fact that even assuming in a case that probation ultimately results and assuming as is not the case here, that there's a period of greater than 60 days between the conviction and the sentencing, then the statute would appropriately apply during that intervening time.

[00:16:39] Speaker 00:
And I would also note that Mr. Mulder, if Mr. Mulder had been sentenced only to probation,

[00:16:50] Speaker 00:
he would have been released before the 60 day lapse is satisfied.

[00:16:55] Speaker 00:
So he would never have had his benefits.

[00:16:57] Speaker 03:
That's not always the case.

[00:16:58] Speaker 03:
I mean, very often it takes more than 60 days to get the sentencing.

[00:17:01] Speaker 00:
Even so, as we mentioned in our brief, under that analysis, the plain requirements of statute are satisfied because the veteran

[00:17:09] Speaker 00:
is incarcerated for conviction of a felony.

[00:17:12] Speaker 00:
And it's consistent with the legislative intent to reduce the benefits during that period of time because as Congress essentially explains these dual requirements of conviction and incarceration, the conviction essentially provides a fault requirement and the incarceration is the state support requirement.

[00:17:30] Speaker 00:
And both of those requirements are satisfied even during a lengthy period between conviction

[00:17:35] Speaker 00:
and sentencing, because during that period, since the veteran is at fault, has been convicted of a felony, and the veteran is being supported by state dollars during a period of incarceration.

[00:17:47] Speaker 03:
So under your theory, just so that I understand, say we do have a veteran who has to wait 63 days for his conviction, or 90 days for a sentence, or 90 days or even 180 days, which is not unusual in a federal system, for instance.

[00:18:03] Speaker 03:
So during that period of time, the benefits are cut off.

[00:18:07] Speaker 03:
He then receives probation.

[00:18:08] Speaker 03:
So he's never actually imprisoned for the conviction.

[00:18:14] Speaker 03:
Are you saying that those benefits would not be able to be recaptured?

[00:18:20] Speaker 00:
Correct.

[00:18:21] Speaker 00:
Of course, the regulation provides that upon release,

[00:18:27] Speaker 00:
the veteran should notify the VA and is entitled to a resumption of benefits at that time.

[00:18:33] Speaker 00:
But the benefit would have been, in this hypothetical, if there was a 63-day period, for the two or three days after the 60-day period lapsed, that reduction in benefits would be appropriate under the statute.

[00:18:49] Speaker 00:
And I think this confusion results from the attempt by Mr. Mulder to conflate incarceration

[00:18:57] Speaker 00:
with a sentence of imprisonment.

[00:18:59] Speaker 00:
And again, his own case demonstrates they're not the same.

[00:19:02] Speaker 00:
Not only was there the period of time between his conviction and the sentencing during which he was incarcerated for his conviction, but he was not serving an outstanding sentence of imprisonment, but his sentence was repeatedly vacated and reimposed.

[00:19:19] Speaker 00:
And so if Mr. Mulder were correct that the sentence is material or determinative

[00:19:25] Speaker 00:
in applying the reduction in benefits provision, it would introduce serious complications that are inconsistent with regard to each time the sentence is vacated and reimposed that are inconsistent with the plain language of the statute, which focuses on conviction and incarceration.

[00:19:40] Speaker 00:
It will be inconsistent with Congress's focus on the false aspect of conviction and the state support aspect of incarceration.

[00:19:50] Speaker 04:
And it would be difficult for, it would be introduced unnecessary complications in the VA administration of this provision because... Are you saying the plain language of the statute is that on the same set of facts and the conviction, that if he had been able to provide bail after the conviction, there would have been a reduction in benefits?

[00:20:11] Speaker 04:
No.

[00:20:12] Speaker 00:
If Mr. Mulder had been released on bail after the conviction, there would not have been a reduction in benefits during that period.

[00:20:20] Speaker 00:
because he would not be supported by state dollars, he would not be incarcerated during that period.

[00:20:27] Speaker 00:
But as Your Honors have pointed out, this doesn't introduce any unfairness in application of the reduction of benefits provision because of the credit for time served statute.

[00:20:37] Speaker 00:
So someone who is granted bail, well, someone who is denied bail ultimately would not serve a longer sentence of imprisonment than someone who is granted bail.

[00:20:49] Speaker 04:
except that in one case he would receive the benefits and the other he wouldn't, although there would have been no other change in his circumstances as far as the conviction was concerned.

[00:21:01] Speaker 00:
Well, Your Honor, in both cases, both individuals, you know, veteran A who was granted bail, veteran B who was denied bail, both individuals would ultimately have their benefits reduced, assuming that they are sentenced to a period of imprisonment.

[00:21:18] Speaker 04:
And the veteran is when the reduction begins.

[00:21:21] Speaker 00:
Correct.

[00:21:21] Speaker 00:
The veteran who has denied bail would have an earlier reduction in benefits, but also a correspondingly earlier resumption in benefit.

[00:21:29] Speaker 04:
That's all that's requested here is that earlier period.

[00:21:34] Speaker 04:
Isn't that right?

[00:21:35] Speaker 00:
I understand Mr. Mulder to be arguing that the VA was not entitled to reduce the benefits until the date of his sentencing, and I understand him also to be arguing that when the sentence was vacated and reimposed, that that was somehow material that he was entitled to a resumption of benefits during that period.

[00:22:00] Speaker 00:
The difference is that Mr. Mulder in fact did benefit from the credit for time served statute.

[00:22:08] Speaker 00:
So if he can simultaneously delay the reduction in benefits until sentencing and benefit from the credit for time served statute, there's really no need for that interpretation.

[00:22:24] Speaker 00:
And it's not consistent with the plain language of the statute, which requires a focus on incarceration

[00:22:30] Speaker 00:
for conviction.

[00:22:33] Speaker 03:
You don't really expect us to base our decision on Skidmore Deference to the VA counsel's opinion, do you?

[00:22:43] Speaker 00:
Well, as a preliminary matter, there's no need to reach that because the statutory language is clear.

[00:22:47] Speaker 03:
I mean, that's the whole point, right?

[00:22:50] Speaker 03:
I mean, if the statutory language is clear, there's no basis to even consider Skidmore Deference, so I don't know why the VA

[00:22:57] Speaker 03:
The Veterans Court did it and I don't know why you're arguing that we should do it.

[00:23:02] Speaker 03:
Well, the plain language of the statute... It's either clear or it's not.

[00:23:06] Speaker 00:
Well, it is plain, but additional support is always helpful.

[00:23:11] Speaker 03:
Just because a government lawyer agrees with your position doesn't mean we're supposed to give it deference.

[00:23:17] Speaker 00:
It's not merely a government attorney stating an opinion.

[00:23:22] Speaker 00:
It is statutorily prescribed.

[00:23:24] Speaker 00:
that the board must follow general counsel precedent decisions.

[00:23:29] Speaker 00:
The Veterans Court is not bound by them, but the board is bound by these general counsel decisions.

[00:23:36] Speaker 03:
But that's not a Skidmore deference point.

[00:23:38] Speaker 03:
I mean, the Veterans Court is saying, they look at opinion that says the statute is unambiguous.

[00:23:45] Speaker 03:
And they say, because we think the statute's unambiguous and this guy agrees with us, we're going to say he's persuasive and get Skidmore deference.

[00:23:52] Speaker 03:
That doesn't even make sense.

[00:23:56] Speaker 00:
I interpret the Veterans Court's decision to be saying to the extent there is ambiguity, it's appropriate to consider this VA precedent decision.

[00:24:04] Speaker 00:
In our brief, we focus more on the fact that after this VA precedent decision, Congress, which can be presumed to be aware of agency interpretations of the statute, codified clarifying changes to the statute while leaving intact the conviction for a felony language.

[00:24:24] Speaker 00:
In that sense,

[00:24:25] Speaker 03:
Congressional ratification based on agency interpretations is a big stretch, is it not?

[00:24:30] Speaker 03:
I mean, the Supreme Court has repeatedly said that even congressional ratification based on appellate court decisions is rarely appropriate.

[00:24:39] Speaker 00:
This court has said the term that's used in cases like Lori Lard and San Juan and a more recent decision by this court in GPX, the term that's used is presumed.

[00:24:51] Speaker 00:
So it is appropriate as an additional

[00:24:54] Speaker 00:
canon of statutory interpretation to rely on this legislative history.

[00:24:59] Speaker 00:
And although certainly no canon of statutory interpretation is given effect in every single case, it doesn't alter the fact that this canon is an appropriate support here in interpreting this statute.

[00:25:11] Speaker 03:
And on what basis was the statute amended?

[00:25:15] Speaker 00:
It was amended actually in very close proximity to another VA precedent decision.

[00:25:21] Speaker 00:
regarding the meaning of penal institution, incarcerated in a penal institution.

[00:25:26] Speaker 00:
The statute was clarified to ensure that private prisons in states were included in the reduction benefits provision.

[00:25:34] Speaker 01:
Your ratification theory rests on the view that the VA general counsel's opinion letter of 2005 was so openly notorious that Congress certainly must have known of it when it amended the statute.

[00:25:50] Speaker 01:
Is that the ratification theory?

[00:25:53] Speaker 00:
Because, yeah, in short, yes.

[00:25:56] Speaker 01:
The Congress... But to cut to the short, this is your backup argument.

[00:26:03] Speaker 00:
Precisely.

[00:26:04] Speaker 01:
So, you know, if we agree that the statute is clear and that Wilson versus Gibson tells us what we need to know about this statute and how it operates, then we don't get there.

[00:26:17] Speaker 00:
Precisely.

[00:26:18] Speaker 01:
OK.

[00:26:19] Speaker 01:
Now, to sum up Mr. Mulder's position, as I understand it, he is saying the time period between his guilty plea and the actual sentence, his physical detainment, his incarceration can't be solely said to be due to the guilty plea.

[00:26:43] Speaker 01:
Because there are plenty of instances, as Judge O'Malley pointed out earlier,

[00:26:48] Speaker 01:
You can be convicted and yet still be free on bail.

[00:26:54] Speaker 01:
And so there's something else, aside from just the conviction, that's holding this person in jail.

[00:27:01] Speaker 01:
And so therefore, it cannot be said on his facts that he is incarcerated during that period of time because of the conviction.

[00:27:13] Speaker 01:
So to sum up, what's your response to that?

[00:27:17] Speaker 00:
The statute doesn't require that the conviction be a but for cause.

[00:27:20] Speaker 00:
It requires a causational link between the incarceration and the conviction.

[00:27:26] Speaker 00:
And here, because the conviction authorizes incarceration, that's satisfied.

[00:27:30] Speaker 00:
The bail statute cannot be determinative here because that would require a different outcome in Wilson.

[00:27:36] Speaker 00:
Bail remains available pending appeal and in some cases pending post-conviction review.

[00:27:41] Speaker 00:
And yet the court in Wilson held that the statute is triggered before that time.

[00:27:46] Speaker 00:
So if this court were to hold that bail is determinative and breaks the causational link between incarceration and conviction, that would require a different outcome in Wilson.

[00:28:01] Speaker 00:
For these reasons, plus the reasons stated in the brief, we respectfully request that this court affirm the decision of the Veterans Court.

[00:28:08] Speaker 04:
Thank you, Ms.

[00:28:09] Speaker 04:
Bowens.

[00:28:17] Speaker 04:
Mr. West.

[00:28:22] Speaker 02:
Thank you, Your Honor.

[00:28:25] Speaker 02:
There were two issues that I wanted to briefly address in response to the government's argument.

[00:28:30] Speaker 02:
The first one was that there was a discussion regarding Mr. Mulder's arguments in his briefs about what happened after he had been convicted and the fact that there had been various actions taken by the appellate courts to vacate and reimpose or do other things to his sentence.

[00:28:50] Speaker 02:
The reason why those arguments are included in the brief

[00:28:53] Speaker 02:
It was for the purpose of pointing out that the government hadn't complied with discourse decision in Robinson to develop claims that were raised by the record.

[00:29:03] Speaker 02:
That's important here because the government has essentially taken the position that once a veteran is convicted, nothing else really matters.

[00:29:13] Speaker 02:
In this case, why that's significant is that we have no idea based on the record what happened

[00:29:19] Speaker 02:
to Mr. Mulder's case during all of those appeals and the vacating and reimposing.

[00:29:25] Speaker 03:
Well, it's undisputed that the conviction was never set aside.

[00:29:28] Speaker 02:
Correct, Your Honor, but the conviction is only one part of what's required by the statute.

[00:29:32] Speaker 02:
He's got to be sitting in a penal institution because of that conviction.

[00:29:38] Speaker 02:
And we don't know when he, based on the record at least, I can tell you now he is out because it's been so many years, but we don't know whether the court

[00:29:46] Speaker 02:
Keep in mind that sentencing doesn't just mean sending somebody to a penal institution for incarceration.

[00:29:53] Speaker 02:
Sentencing can also include things like work release.

[00:29:55] Speaker 02:
It can include things like probation.

[00:29:57] Speaker 02:
It can include things like finding an individual.

[00:30:02] Speaker 02:
Those arguments are set in the briefs in order to illustrate the fact that

[00:30:09] Speaker 02:
It is important to know why somebody is sitting in prison because that's what the statute requires.

[00:30:15] Speaker 03:
So are you arguing that in each instance in which his sentence was set aside, that during the period of time in which it was set aside and before it was reimposed, that he was supposed to get his benefits restarted?

[00:30:26] Speaker 02:
No, we're not arguing that, Your Honor.

[00:30:28] Speaker 02:
The reason why those instances were initially included within the briefing was because it was intended to show that there wasn't compliance with the duty to infer as set forth by this court in Robinson.

[00:30:38] Speaker 02:
They are also indicative of the fact that the VA and the lower court has taken a position that the sentencing component of the statute, not the sentencing component, but the but for the reason why he is sitting in prison is no longer significant.

[00:30:56] Speaker 04:
But none of those facts, such as work relief, apply here.

[00:31:00] Speaker 04:
What I hear you saying is that perhaps our ruling needs to be

[00:31:06] Speaker 04:
narrowly tailored or not overly broad to cover circumstances that aren't here.

[00:31:12] Speaker 04:
But as far as Mr. Mulder is concerned, none of this was present.

[00:31:18] Speaker 02:
The point being, Your Honor, is that we don't know whether they're here or not because the VA never complies with its obligation.

[00:31:22] Speaker 04:
We know he was incarcerated throughout this period.

[00:31:25] Speaker 04:
We know that he was incarcerated throughout this period.

[00:31:29] Speaker 04:
That's not disputed and so such

[00:31:33] Speaker 04:
exceptions such as work relief could not have been present.

[00:31:37] Speaker 02:
We know that he was incarcerated through 2008, Your Honor.

[00:31:39] Speaker 02:
The record is silent with respect to anything that happened after that.

[00:31:42] Speaker 04:
I would think that if he were not in a penal institution, there would have been an obligation on the part of one side or the other to tell us, either that the 61 days were it's a man or something else.

[00:31:56] Speaker 04:
I don't see any such

[00:31:58] Speaker 02:
We agree, Your Honor, that it would have been the obligation of a party to tell us, and the record shows, and it's cited in the brief, and the copies are included in the joint appendix, that Mr. Mulder attempted to tell the VA on at least 10 different occasions that there had been a modification to his sentence, and the VA didn't act as it should have under the Robinson Act.

[00:32:16] Speaker 04:
He never tried to say that he was not incarcerated in that period.

[00:32:22] Speaker 02:
I believe you're correct.

[00:32:24] Speaker 02:
I don't think that he got that specific, Your Honor.

[00:32:27] Speaker 04:
Okay.

[00:32:28] Speaker 04:
Any more questions?

[00:32:29] Speaker 04:
Any other questions?

[00:32:31] Speaker 04:
All right.

[00:32:31] Speaker 04:
Thank you both.

[00:32:32] Speaker 04:
The case is taken under submission.