[00:00:01] Speaker 01: And good morning, everyone. [00:00:02] Speaker 01: We shall start with an admission. [00:00:05] Speaker 01: Mr. Rowland, will you come forward? [00:00:08] Speaker 01: I'm going to ask Judge Shaw to move as he wishes. [00:00:13] Speaker 04: Judge Newman, thank you very much. [00:00:15] Speaker 04: I do have a motion, and it's one I'm very pleased to make. [00:00:20] Speaker 04: I move the admission of Daniel Francis Rowland, who is a member of the Bar and is in good standing with the highest courts of the District of Columbia and Maryland. [00:00:32] Speaker 04: I have knowledge of his credentials and am satisfied that he possesses the necessary qualifications. [00:00:39] Speaker 04: I would just add, parenthetically, these are sort of the magic words or the official words that have to be spoken. [00:00:46] Speaker 04: I would just add a tiny gloss by saying that Dan has been working with me as a clerk since October. [00:00:53] Speaker 04: He's done an excellent job, and I'm sure that he will be [00:00:58] Speaker 04: an excellent addition to the bar of the court, and I look forward to seeing him before us. [00:01:02] Speaker 01: Well, thank you for the motion. [00:01:04] Speaker 01: The panel will vote on the motion. [00:01:06] Speaker 01: Do you have a vote? [00:01:09] Speaker 01: And I also share the view. [00:01:12] Speaker 01: So the motion is granted, and welcome to the bar of this court. [00:01:19] Speaker 01: And will you be administering the oath, please? [00:01:23] Speaker 01: address the payment. [00:01:26] Speaker 03: Thank you. [00:01:41] Speaker 01: Welcome to the bar, Mr. Rowland. [00:01:46] Speaker 01: We proceed with the first argued case this morning. [00:01:50] Speaker 01: It's Aldridge against McDonald. [00:01:58] Speaker 00: May it please the court, Natalie Bennett on behalf of the veteran Marion Aldridge. [00:02:03] Speaker 00: The Supreme Court standard is whether extraordinary circumstances stood in the way of filing, not whether the circumstances stood in the way of doing all things. [00:02:13] Speaker 00: Here, the Veterans Court misapplied the Supreme Court's standard. [00:02:16] Speaker 00: The majority opinion offers no findings on whether the circumstances were extraordinary and no findings on whether the veteran was diligent. [00:02:26] Speaker 00: Veterans Court erred in finding that Mr. Aldridge's ability to do certain things extinguished the connection between the extraordinary circumstances and the late filing. [00:02:37] Speaker 00: The fact that the veteran could do certain things on autopilot after experiencing three family tragedies [00:02:43] Speaker 00: does not answer the question of whether the extraordinary circumstances prevented him from filing. [00:02:50] Speaker 00: Following the Supreme Court's recent decision in Menominee Tribes of Wisconsin versus United States, we'll agree for purposes of discussion today that it would be appropriate for a litigant to show a generalized connection or nexus between the extraordinary circumstances and the late filing. [00:03:08] Speaker 00: The only evidence in this record [00:03:12] Speaker 00: is that there was such a nexus between the three family tragedies, Mr. Aldridge's ensuing grief, and the late filing. [00:03:18] Speaker 00: There's nothing contrary. [00:03:20] Speaker 00: What the Veterans Court was looking for was full incapacitation. [00:03:25] Speaker 00: And short of that showing, it seems like nothing would have sufficed. [00:03:29] Speaker 04: Ms. [00:03:29] Speaker 04: Benz, I understand it. [00:03:31] Speaker 04: And please correct my fine. [00:03:34] Speaker 04: Excuse me. [00:03:36] Speaker 04: Your basic argument is that the [00:03:41] Speaker 04: Veterans Court applied what I think you refer to as kind of a hybrid test that asked whether the circumstances directly or indirectly prevented his appeal from being timely. [00:03:53] Speaker 04: I think that's what you said. [00:03:55] Speaker 04: And you take issue with that as imposing some kind of a causation requirement as opposed to the roadblock requirement. [00:04:06] Speaker 04: Do I have it right so far? [00:04:07] Speaker 00: I think that is correct. [00:04:08] Speaker 00: And I think that that accurately captures the focus of the opening brief, which was submitted prior to Menominee being issued by the Supreme Court. [00:04:15] Speaker 04: And that's what I'm saying. [00:04:16] Speaker 04: I mean, you've labored well here in representing your client. [00:04:21] Speaker 04: But I'm wondering if Menominee doesn't make it clear that causation is kind of the name of the game. [00:04:29] Speaker 00: I think that after Menominee, there were some additional clarifications, and that was one of them, that there should be some generalized showing between extraordinary circumstances and delayed filing. [00:04:44] Speaker 00: The issue that we have here is there were no findings as to whether the circumstances were extraordinary. [00:04:50] Speaker 00: The Veterans Court just jumped straight to the prevented from filing [00:04:55] Speaker 00: element, and I don't think that you can separate them. [00:04:58] Speaker 00: I think you have to first make a determination where the circumstance is extraordinary. [00:05:02] Speaker 00: If the answer is no, then the inquiry stops. [00:05:06] Speaker 00: But here we don't know whether the circumstances were extraordinary. [00:05:09] Speaker 00: To the extent we want to accept the generalized [00:05:16] Speaker 00: nexus or connection, I wouldn't agree that it has to be some sort of direct result or proximate causation. [00:05:22] Speaker 00: But we believe that that showing was made in the record. [00:05:25] Speaker 00: I think at A36 through A38, the veterans submitted quite a few statements about how his depression and his grief caused him to miss the deadline. [00:05:37] Speaker 00: And it looks like the Veterans Court just ignored that and wanted to look at what he did do or didn't do. [00:05:46] Speaker 00: This important, this point is important is maybe not. [00:05:49] Speaker 04: The court there was looking to see whether a causation element was met. [00:05:56] Speaker 04: Namely, if he did all these other things and functioned effectively in these other areas of his life, there was not a causal connection between the grief and the hardship of the loss of the three individuals. [00:06:13] Speaker 00: I believe that that is an error because another clarification... But you think that's what the court did. [00:06:17] Speaker 00: Yes. [00:06:19] Speaker 00: Menominee also clarifies that when you're looking at the extraordinary circumstances element, you're only looking at affairs outside of the litigants control, the external factors. [00:06:31] Speaker 00: That would not have been whether he could take care of his father or whether he was going to work. [00:06:36] Speaker 00: within his control, and Menominee says that matters within a litigant's control would properly be analyzed under the diligence prong. [00:06:45] Speaker 00: So in addition to skipping over the extraordinary circumstances analysis, there's a conflation between the two elements that I believe is a separate legal error that would warrant remand for [00:06:59] Speaker 00: the analysis to be done under the proper circumstances, and at the very least, a threshold determination that whether the circumstances were extraordinary, because only when you know if they're extraordinary can you know if they're connected to the late filing. [00:07:14] Speaker 01: Well, just thinking about this, I don't think anybody can really argue that the death of your mother and your sister and your grandchild all in this period of time [00:07:27] Speaker 01: when the filing was supposed to be made was anything other than extraordinary. [00:07:33] Speaker 01: Wasn't the concern that the veteran showed that he was able to cope and to handle all of these extraordinary circumstances and therefore the delay in filing was something that can't be excused. [00:07:50] Speaker 01: Was there any argument before the Veterans Court that the standard for [00:07:58] Speaker 01: delay or extraordinary circumstances or whatever should be different when we're dealing with veterans, because it is the nation's policy to accommodate veterans' problems when they can be accommodated. [00:08:14] Speaker 01: All that we have here is a delay in filing. [00:08:19] Speaker 00: There were a couple of things you said in your question, Judge Newman, so I'm going to try and take them in tandem here. [00:08:24] Speaker 00: The first point that you made, I would agree with, [00:08:27] Speaker 00: the circumstances would be extraordinary. [00:08:29] Speaker 00: I think if you were to ask the VA, they're going to get up here and argue that this is garden variety excusable neglect. [00:08:35] Speaker 00: So I do think there is perhaps some dispute as to what the two parties positions on. [00:08:41] Speaker 01: But did they actually say that? [00:08:43] Speaker 01: I didn't think that they disputed that it was extraordinary. [00:08:47] Speaker 01: And I don't think that they came down on a standard of neglect. [00:08:53] Speaker 01: Their standard was that because the veteran was able [00:08:57] Speaker 01: to handle all of these circumstances, he should also have been able to handle the six-month filing period. [00:09:04] Speaker 00: That is the argument. [00:09:05] Speaker 00: I think what the veteran can handle, what he could do, what he couldn't do, might fit within the diligence prong, which is [00:09:16] Speaker 00: specifically looking at things within the litigants' control, whereas the extraordinary circumstances and prevented from filing is focused on external factors, things that the universe puts in your path and that you have to grapple with. [00:09:31] Speaker 00: I don't dispute your characterization of what the Veterans Court found here in terms of the argument about whether a veteran should have [00:09:44] Speaker 00: I think the case law or the legislative history says, when in doubt, the tie should go to the veteran, when it's a reasonably close situation that their service to their country and their sacrifice for the life and liberty of us all does weigh in favor of letting the tie go to the veteran. [00:10:03] Speaker 00: So that argument was made below. [00:10:05] Speaker 00: It's made here. [00:10:07] Speaker 00: I think it's unclear in this court's precedent how much [00:10:12] Speaker 00: weight that is given. [00:10:14] Speaker 00: And I think the Veterans Court, at least the majority opinion, didn't focus on whether veterans should be treated in accordance with their special circumstance because it is a non-adversarial way of pursuing the claim. [00:10:30] Speaker 05: Can I ask you a record question? [00:10:31] Speaker 05: Is there something in the record that indicates why June 30th was the date that you identified as the date at which the [00:10:40] Speaker 05: I forget what the phrase was, but that the depression began to fade or something like that. [00:10:47] Speaker 00: Right. [00:10:47] Speaker 00: There is not an explanation of that in the record. [00:10:51] Speaker 00: I can tell you that Mr. Aldridge has a very difficult time with dates and kind of keeping track of when things happen. [00:11:00] Speaker 05: No, but I mean, you understand that the reason for the question is that it happens to be 119 days before the filing. [00:11:06] Speaker 00: Right. [00:11:06] Speaker 05: And if it had been June 28, [00:11:08] Speaker 05: And even your argument about 120 days wouldn't have made a difference. [00:11:12] Speaker 05: It seems fortuitous that June 30th was the date identified. [00:11:17] Speaker 05: And I wondered if there was a medical report or something that indicated June 30th as distinct from June 28th. [00:11:23] Speaker 00: There is nothing that makes no medical report or anything to that extent. [00:11:31] Speaker 00: Veteran's statement is that in the summer is when things kind of started coming back together for him. [00:11:37] Speaker 00: And he's sworn that June 30 is the date where he would approximate. [00:11:42] Speaker 00: He started to feel like he was no longer in a period of extraordinary circumstances. [00:11:54] Speaker 05: Actually, can you maybe help on the following [00:11:57] Speaker 05: doctrinal point which at least to my mind is a little bit confusing. [00:12:02] Speaker 05: What do you understand to be the scope of our statutory authority to discuss, think about, rule on questions about whether particular facts amount to [00:12:19] Speaker 05: satisfying equitable tolling either as a matter of law or arguably or what I'm a little confused about the meaning of the Bailey language and as then or most recently I guess applied in Sneed. [00:12:33] Speaker 00: Both Sneed cases, both Sneed v. Shinseki and Sneed v. McDonald talk about the scope of this court's jurisdiction and most recently in Sneed v. McDonald the court acknowledged that there would be [00:12:46] Speaker 00: some application of law to fact, and that this court would be authorized to review it when there are no material facts in dispute, and the outcome would turn on the application of the correct legal standard. [00:13:01] Speaker 00: I think Sneed v. Shinseki is significant because there's discussion there about the Federal Circuit. [00:13:08] Speaker 00: Their review was really focused on even if [00:13:14] Speaker 00: The standard was not in dispute. [00:13:16] Speaker 00: Was it applied too narrowly? [00:13:18] Speaker 00: And that was really the thrust of the analysis. [00:13:20] Speaker 00: And Snead is that they found that the Veterans Court was too narrow in going through the analysis and that they were going to send it back for a more broad overview. [00:13:30] Speaker 05: And just to be, I guess this seems right. [00:13:34] Speaker 05: Your brief asks us to conclude that if you look at these facts as a matter of law, they compel. [00:13:43] Speaker 05: finding of equitable tolling and that Would come within I think the narrowest possible meaning of Bailey so broader questions about Sort of remanding to figure out the application if the standard were corrected. [00:13:59] Speaker 05: That's not really what you're arguing here [00:14:02] Speaker 00: I think this court has the discretion to look at the record and is just as well positioned as the Veterans Court to do so and to apply it and to make a legal conclusion or determination. [00:14:14] Speaker 05: But I also recognize... But that assumes that it's a legal conclusion. [00:14:18] Speaker 05: Being well positioned is not the same thing as being statutorily authorized. [00:14:23] Speaker 05: We are, as you know, our jurisdiction in veterans cases is not the normal judicial view of agency action. [00:14:30] Speaker 05: We're a second tier. [00:14:31] Speaker 05: court limited in quite constrained ways. [00:14:38] Speaker 00: I would agree that this court [00:14:41] Speaker 00: could render a judgment. [00:14:42] Speaker 00: But given that there have been no findings on the diligence prong, I think it would make sense to send it back to the Veterans Court to make findings as to whether the circumstances were extraordinary. [00:14:55] Speaker 00: And if they were extraordinary and stood in the way in filing, then they would have to do a diligence analysis in the first instance. [00:15:01] Speaker 00: I see. [00:15:01] Speaker 05: So you would read Bailey as at least [00:15:03] Speaker 05: as allowing us or requiring us to conclude that one of two components as a matter of law is satisfied? [00:15:13] Speaker 00: Yes. [00:15:13] Speaker 00: I think either whether it's this court or the Veterans Court, I think there are determinations to be made. [00:15:23] Speaker 00: I think this court has some discretion. [00:15:25] Speaker 00: And I think that the normal practice is typically to send it back to the Veterans Court. [00:15:31] Speaker 00: be asking for such relief. [00:15:33] Speaker 00: What I think is important is that there's a threshold determination under the Supreme Court's standard just simply stated. [00:15:42] Speaker 00: And that's really, I think, what we're asking for here. [00:15:45] Speaker 01: But on our very limited standard of review, I wonder whether the primary question for us is whether, as a matter of equity and discretion, rather than law [00:16:00] Speaker 01: We should restate the standard in terms of the amount of weight, extra weight on the side of an equitable issue favoring the veteran. [00:16:13] Speaker 00: That would absolutely be within the purview of this court and is what Mr. Aldridge is absolutely asking for that there [00:16:21] Speaker 00: does seem to be some tension within the case law and that this court is best positioned and really the only court that can flush out what the appropriate standard is, how to take into account the fact that this is a veteran and not a habeas case. [00:16:35] Speaker 00: And so we absolutely would ask that this court were to take on that analysis. [00:16:40] Speaker 01: OK, let's see what the government has to say. [00:16:43] Speaker 01: Thank you, Ben. [00:16:53] Speaker 01: Mr. Hoffman. [00:16:57] Speaker 02: Good morning, Your Honors, and may it please the Court. [00:16:58] Speaker 02: I'd like to pick up on the very limited jurisdictional scope of this Court's authority to review and reweigh facts and the application of law to facts. [00:17:09] Speaker 02: Our position is that, aside from cases where the Veterans Court sets per se, or very categorical legal rule, this Court is set totally limited from [00:17:22] Speaker 02: reweighing or reviewing the facts below. [00:17:24] Speaker 02: So in the Bailey case and that line of cases, the notices of appeal in those cases were timely filed. [00:17:31] Speaker 02: They were filed with the wrong court. [00:17:32] Speaker 02: And the Veterans Court held that such a notice could never qualify for equitable tolling. [00:17:39] Speaker 02: This court, I think, in several of those cases, including Bailey and Jacque, remanded and said, no, there's no [00:17:48] Speaker 02: these categorical rules are not proper in the arena of equitable tolling, and the Veterans Court can examine whether equitable tolling applies. [00:17:58] Speaker 02: That is not the case we have here. [00:18:00] Speaker 01: But it is, isn't it? [00:18:02] Speaker 01: Accepting that it's not for us to reweigh the facts. [00:18:06] Speaker 01: But if, in fact, the equitable standard should be that stated by the dissenting opinion in the Veterans Court, do you [00:18:17] Speaker 01: disagree that that's within our appellate jurisdiction. [00:18:24] Speaker 02: If the legal standard as applied by the court was incorrect, then yes, that is correct. [00:18:29] Speaker 01: The equitable standard. [00:18:30] Speaker 02: The equitable standard. [00:18:31] Speaker 02: But the majority opinion here stated the correct equitable standard for tolling and applied that standard. [00:18:40] Speaker 01: They didn't really say in the majority that there should be special deference to veterans [00:18:46] Speaker 01: a particular accommodation to extreme circumstances. [00:18:53] Speaker 02: Well, respectfully, Your Honor, I think the veteran's opinion did acknowledge the regrettable and sympathetic circumstances that Mr. Aldridge countered. [00:19:02] Speaker 02: And it looked at equitable tolling as a possible remedy. [00:19:07] Speaker 02: In other contexts, non-veterans in ordinary civil litigation would already [00:19:13] Speaker 02: face higher hurdles, they would have a much shorter period of time to file their notice of appeal. [00:19:18] Speaker 02: That notice of appeal, even filing a notice of appeal to this court, is not subject to equitable tolling because it is jurisdictional. [00:19:25] Speaker 02: Veterans do get a special solicitude in these matters, and they are entitled to try to show equitable tolling. [00:19:33] Speaker 02: The issue here is that the Veterans Court concluded, after weighing the conflicting facts in the record, that Mr. Aldridge's [00:19:43] Speaker 02: regrettable and sympathetic circumstances did not prevent him from filing a notice of appeal on time. [00:19:49] Speaker 01: What he said was that he put all of these family obligations first until they were sufficiently resolved for him to turn to his own circumstances. [00:20:01] Speaker 01: Now that's been raised perhaps as a matter of diligence, but I gather that those facts were not fully explored on the theory [00:20:13] Speaker 01: that having put all of these family obligations first showed an intellectual competence and a physical competence to handle things that needed to be handled, rather than whether, in fact, there was a generous view of taking the family obligations first. [00:20:40] Speaker 02: Your Honor, I think [00:20:41] Speaker 02: The court below acknowledged those circumstances. [00:20:45] Speaker 02: And it looked at Mr. Aldridge's depression and his claim that he lost sense of time and had difficulty carrying out routine tasks. [00:20:55] Speaker 02: But the court also considered the fact that he was able to administer the estates of two family members that he continued in his job. [00:21:03] Speaker 02: That he, even during the period of his depression, he was able to review law firm literature pertaining to his [00:21:10] Speaker 02: claim and to fill out a form and send it back to the law firm. [00:21:13] Speaker 02: And I think the court below held that, based on those circumstances, Mr. Aldridge's depression and the deaths that caused that depression did not prevent him from making those filings. [00:21:26] Speaker 02: I think that is a determination that that court makes in the first instance. [00:21:32] Speaker 02: And under 38 USC 7292, this court [00:21:39] Speaker 02: is precluded from reweighing those facts and giving them a different weight. [00:21:45] Speaker 04: What I understand you're saying is, Mr. Hellman, it's within our purview to determine whether it was correct for the Veterans Court to assess whether these factors caused him to be unable to file on time. [00:22:09] Speaker 04: to qualify for equitable tolling, in other words. [00:22:11] Speaker 04: But we can't. [00:22:12] Speaker 04: We can do that, you would say. [00:22:14] Speaker 04: But then you would say, we can't go in and second guess the way the court went about it and said, well, this properly didn't hold him up and so forth. [00:22:24] Speaker 04: Is that correct? [00:22:25] Speaker 02: That's correct, Judge Schell. [00:22:25] Speaker 02: Yes. [00:22:33] Speaker 02: And that causation standard is required by the Supreme Court and by [00:22:39] Speaker 02: this court's precedent, I think there's a little bit of a moving target because the opening brief said that there was no causation standard required. [00:22:47] Speaker 02: I think now they concede after the Menominee decision that used the actual word cause that there is a causation requirement. [00:22:55] Speaker 02: Here the Veterans Court used a fairly broad construction of causation. [00:23:01] Speaker 02: It quoted the Supreme Court language, which talks about an extraordinary circumstance standing in the way and preventing [00:23:08] Speaker 02: And it said that either directly or indirectly, these circumstances did not prevent the filing. [00:23:15] Speaker 05: I guess I'm a little puzzled why causation came into this appeal from the beginning. [00:23:23] Speaker 05: Tell me if I'm misremembering. [00:23:26] Speaker 05: I thought what the Veterans Court said was that Mr. Aldrich argued that the McCreery causation standard [00:23:38] Speaker 05: was no longer good law because equitable tolling had been interpreted by the Supreme Court in the habeas context in a way that didn't include it, and we should stop applying that standard. [00:23:49] Speaker 05: And the Veterans Court said, interesting argument, but it has no effect on this case. [00:23:56] Speaker 05: We're not applying the causation standard. [00:23:58] Speaker 05: We are applying the Holland prevention standard. [00:24:01] Speaker 05: Indeed, we're being slightly more generous in Holland because we're saying, [00:24:06] Speaker 05: He didn't even show indirect prevention, not just direct prevention, and so we just don't need to consider in this case whether causation under McCreary remains a requirement or not. [00:24:20] Speaker 05: Have I misunderstood that? [00:24:21] Speaker 02: That's correct. [00:24:22] Speaker 02: That's correct, Judge Stronto. [00:24:24] Speaker 02: The veteran below tried to argue that in light of Holland, the McCreary three-part test, which breaks causation out as a separate prong, is no longer valid. [00:24:33] Speaker 02: Causation has always been a part of [00:24:36] Speaker 02: equitable tolling, it has just been phrased differently as the extraordinary circumstances prevent the timely filing. [00:24:43] Speaker 02: That's essentially saying that the extraordinary circumstances cause the late filing. [00:24:48] Speaker 02: But the Menominee case clarified that and used the word causation so that this is just a semantic difference. [00:24:58] Speaker 02: There's not a substantive dispute as to what the standard should be. [00:25:06] Speaker 02: Our position is that the Veterans Court correctly chose to focus on the causation prong and does not need to examine at the outset whether the circumstances were extraordinary. [00:25:16] Speaker 05: I'm going to just try this again, because I guess the more you talk, the more confused I am. [00:25:20] Speaker 05: I thought that the Veterans Court said, we don't care in this case about causation. [00:25:25] Speaker 05: Completely irrelevant. [00:25:28] Speaker 05: We are deciding this case by applying Holland to say his circumstances, Mr. Aldridge's circumstances, [00:25:36] Speaker 05: did not directly or indirectly prevent him from filing a notice of appeal. [00:25:42] Speaker 05: Since we're applying the Holland standard, we have no occasion whatsoever in this case to consider how that standard relates or doesn't relate to McCreary's causation standard. [00:25:56] Speaker 05: So every time you say they focused on causation, [00:26:00] Speaker 05: I keep thinking, I thought they said at top of A3, we're not focusing on causation to the extent that word means anything different from the prevention language. [00:26:10] Speaker 02: I think that's exactly right, Your Honor, and I'm sorry to have confused the issue. [00:26:15] Speaker 02: They did not focus on the word causation to the extent that it means anything other than prevent, which is the test that the Supreme Court [00:26:24] Speaker 02: articulated in Holland. [00:26:25] Speaker 02: So the Veterans Court used the direct language of the Holland decision about whether the extraordinary circumstances prevented. [00:26:33] Speaker 05: And there was some discussion earlier. [00:26:35] Speaker 05: I didn't remember anything. [00:26:38] Speaker 05: Did the Veterans Court essentially assume that these circumstances are, in fact, extraordinary? [00:26:45] Speaker 05: Or did it say something to the contrary? [00:26:47] Speaker 02: That's correct, Your Honor. [00:26:48] Speaker 02: The Veterans Court did not make a definitive ruling as to whether or not these circumstances were extraordinary. [00:26:54] Speaker 02: Because it assumed that even if they were, they didn't have the requisite preventive effect. [00:26:59] Speaker 02: That's exactly correct. [00:27:01] Speaker 02: And our position is that that is permissible. [00:27:04] Speaker 02: But Veterans Court does not, in every case, need to make a determination that the circumstances were extraordinary before continuing on to the other prongs of equitable toning. [00:27:14] Speaker 02: The court, if it finds that the veteran was not duly diligent, can also [00:27:22] Speaker 02: declined to invoke equitable tolling without a case of record. [00:27:24] Speaker 05: Can I just ask you, do you know anything more about the record than I think Ms. [00:27:30] Speaker 05: Bennett described about where this June 30th date comes from? [00:27:35] Speaker 05: I don't, Your Honor. [00:27:36] Speaker 05: I mean, testimony from Mr. Aldridge or a declaration or something, or was there some real world event on June 30th that that date [00:27:50] Speaker 02: There's a declaration from Mr. Aldrich, and this is at 837, that he identified the end of June as the period of time when he was more capable of coping with his depression. [00:28:03] Speaker 02: Beyond that, I did not cross anything in the record. [00:28:10] Speaker 02: Another point I'd like to turn to is whether, you know, there's this question in the reply brief [00:28:19] Speaker 02: that Mr. Aldridge was not, that the Veterans Court misapplied the standard because it invoked the Barrett line of cases that are applicable to mental illness, and Mr. Aldridge was not claiming mental illness. [00:28:31] Speaker 02: The thing I'd like to note there is that the Barrett case talks about, that was a case that looked at whether equitable tolling would be applicable in cases of mental illness. [00:28:42] Speaker 02: But one of the cases that Barrett examined was a First Circuit case, and we'll cite this in our brief, Melendez Arroyo. [00:28:49] Speaker 02: And at 363 F. [00:28:52] Speaker 02: 3rd, 1321, the Barrett Court has a parenthetical talking about, again, it's talking in the context of mental illness preventing and timely filing. [00:29:04] Speaker 02: It says, it is clear that merely to establish a diagnosis such as severe depression is not enough. [00:29:09] Speaker 02: That diagnosis has to prevent the timely filing. [00:29:12] Speaker 02: But that is notable, though, because Barrett doesn't strictly talk about mental illness the way that [00:29:18] Speaker 02: Mr. Aldridge interprets it in his reply brief. [00:29:21] Speaker 02: It talks about other mental conditions, such as severe depression, which Mr. Aldridge claims is what he had during this time. [00:29:28] Speaker 02: So our position is that the Veterans Court correctly applied Barrett and cited to that very page for the proposition that even though [00:29:40] Speaker 02: It took Mr. Aldridge at his word that he had severe depression during that period. [00:29:45] Speaker 02: He did not show that the depression prevented him from filing the appeal on time. [00:29:53] Speaker 01: OK. [00:29:53] Speaker 01: Any more questions? [00:29:54] Speaker 01: Any more questions? [00:29:55] Speaker 01: Thank you, Mr. Holman. [00:29:56] Speaker 02: Thank you. [00:29:57] Speaker 02: We respectfully ask that you withdraw. [00:29:59] Speaker 01: Thank you. [00:30:00] Speaker 01: Mr. Bennett, you have two minutes for a rebuttal. [00:30:05] Speaker 00: I'll just briefly touch on the last point Mr. Hellman made about the Barrett case. [00:30:10] Speaker 00: The Barrett case talks about mental illness and mental incompetence. [00:30:14] Speaker 00: And I think that that is distinguishable from what we have here. [00:30:17] Speaker 00: Anyone in this courtroom could lose people that are important in their lives and be extremely sad about it. [00:30:23] Speaker 00: It doesn't make them mentally incompetent. [00:30:26] Speaker 00: It makes them overwhelmed with grief with some emotional limits that I would argue are very different from being mentally incompetent. [00:30:34] Speaker 00: I think at the beginning of the argument there were questions about whether this case was like Snead v. Shinseki and whether [00:30:42] Speaker 00: There was a requirement for an exclusive type parameter. [00:30:46] Speaker 00: I think that the reasoning that the Veterans Court, the majority applied here, was that short of being incapacitated, there was no showing that Mr. Aldridge could have made that would have convinced them that Will Tolling was available because he was still going to work and taking care of his family and doing things that people do on autopilot, even when they are experiencing extraordinary circumstances. [00:31:11] Speaker 00: Even if things were to have gotten a lot worse, I think the Veterans Court, based on the reasoning they applied, would have come to the same conclusion. [00:31:20] Speaker 00: And that is error because I don't think you can separate the first question about whether it's an extraordinary circumstances from the question of whether someone was prevented from fouling. [00:31:34] Speaker 00: Whether he was prevented from filing does not turn on what he could or could not have done. [00:31:39] Speaker 00: The standard is not, was it impossible for him to file? [00:31:41] Speaker 00: The standard was, did the circumstances stand in his way? [00:31:45] Speaker 00: And the undisputed record here shows that they did. [00:31:50] Speaker 01: Thank you. [00:31:51] Speaker 01: Thank you, Ms. [00:31:52] Speaker 01: Banner. [00:31:53] Speaker 01: The case is taken under submission.