[00:00:53] Speaker 03:
Okay, the next case is number 15-70-51, Dixon against McDonald.

[00:00:59] Speaker 03:
Mr. Sturridge, when you're ready.

[00:01:24] Speaker 01:
Good morning, Your Honors.

[00:01:25] Speaker 01:
May it please the Court.

[00:01:26] Speaker 01:
My name is Holly Starrett, and I represent the appellant, Karen Dixon, in this matter.

[00:01:33] Speaker 01:
The threshold question for this Court is whether the Veterans Court had the authority to bypass or override the Secretary's deliberate waiver in this case.

[00:01:46] Speaker 01:
Mrs. Dixon and the Secretary agree that the facts warranted an application of equitable tolling.

[00:01:54] Speaker 01:
Mrs. Dixon and the Secretary disagree, however, as to whether the Veterans Court got it right with respect to the waiver issue.

[00:02:05] Speaker 01:
We submit there's three reasons why the Veterans Court was wrong with respect to this waiver issue, three interrelated reasons.

[00:02:14] Speaker 01:
The first reason is controlling precedent from the United States Supreme Court in the Day versus Picdana and the Wood versus Millard decisions

[00:02:23] Speaker 01:
which discuss the issue of waiver.

[00:02:27] Speaker 01:
The second reason is the principle defined as principles of party presentation, which mean the ability of parties to raise the issues and defenses that they want the court to hear and to act as a neutral arbiter about.

[00:02:45] Speaker 01:
And the third reason is the very nature of the veterans benefit

[00:02:51] Speaker 01:
system itself, which this court and the Supreme Court has been very clear in describing as a pro-claimant, pro-veteran system.

[00:03:00] Speaker 01:
And it's for those three interrelated reasons that we believe the Veterans Court got it wrong when it said that it had the authority to bypass the Secretary's deliberate waiver.

[00:03:10] Speaker 01:
So I'll address each of those reasons in turn here.

[00:03:15] Speaker 01:
Let me begin with the controlling Supreme Court precedent.

[00:03:18] Speaker 01:
the Day decision from 2006 and the Wood decision from 2012.

[00:03:24] Speaker 04:
You see Day as a forfeiture case and Wood as a waiver case?

[00:03:28] Speaker 01:
That's exactly correct Judge Chen.

[00:03:30] Speaker 04:
So in Day... You were to do apples to apples to Veterans Courts inquiries about equitable tolling.

[00:03:36] Speaker 04:
Would you think that same distinction between forfeiture and waiver applies in the Veterans Court context?

[00:03:43] Speaker 01:
Well, yes.

[00:03:44] Speaker 01:
I think that result is frankly dictated by this Court's opinion in Checo, which said that the Veterans Court can sue Esponte raise an issue of timeliness.

[00:03:54] Speaker 01:
Similarly, in Day and Wood, in both those cases, the Supreme Court said, yes, the lower court, either the district court or the Court of Appeals, could sue Esponte raise

[00:04:06] Speaker 01:
the issue of timeliness.

[00:04:08] Speaker 01:
But in the Wood case, which directly addressed a deliberate waiver by the government, the Supreme Court there reiterated what was said in Dicta and Dei, which is the court is without authority to override, bypass, or ignore the deliberate waiver.

[00:04:28] Speaker 01:
And here I think there's no question that the secretary has deliberately waived equitable polling defense.

[00:04:35] Speaker 01:
The secretary made that clear in its briefing to the Veterans Court.

[00:04:43] Speaker 01:
And the government on appeal here has agreed that that's exactly what the secretary did below.

[00:04:50] Speaker 01:
So in the Day and Wood cases, I would say are incredibly instructive to this court, because this court has previously said in the Snead versus Shinseki case and in the Bailey versus West case that it's loathe

[00:05:06] Speaker 01:
treat less worthily, habeas petition, or treat with less solicitude veterans than it treats habeas petitioners.

[00:05:17] Speaker 01:
That it will treat veterans with at least as much solicitude as it treats habeas petitioners.

[00:05:26] Speaker 04:
Which case was that?

[00:05:27] Speaker 01:
The Snead versus Shinseki case from, I believe that was 2011 or thereabouts in the Bailey versus West 1998.

[00:05:35] Speaker 01:
And so I think for that reason, those day and what cases are frankly controlling on this court.

[00:05:46] Speaker 01:
The second reason I would contend that the Veterans Court got it wrong is this idea of the principle of party presentation.

[00:05:55] Speaker 01:
And as I was saying, that principle suggests that the parties, and in this case, the government,

[00:06:03] Speaker 01:
should know and is knowledgeable and is responsible for knowing what they're doing.

[00:06:10] Speaker 01:
They make choices to bring those issues and those defenses that they want the court to hear.

[00:06:17] Speaker 01:
And they are tasked with that responsibility and they, frankly, are the ones with the most knowledge about the case.

[00:06:29] Speaker 01:
I mean, here the secretary,

[00:06:31] Speaker 01:
has had this case, this appeal was brought as far back as 2008.

[00:06:34] Speaker 01:
So they've had a considerable length of time to consider the facts in this issue, and they made the choice, the strategic choice, to waive this issue.

[00:06:45] Speaker 01:
And that makes sense because what the Supreme Court has said in another case, Advantage Financial, is that administrative agencies are

[00:06:56] Speaker 01:
presumed to make their choices in good faith.

[00:06:59] Speaker 01:
They're presumed to make those choices fairly.

[00:07:03] Speaker 01:
They're presumed to do them correctly.

[00:07:05] Speaker 01:
And they're presumed to do them with knowledge of the law and the regulations.

[00:07:11] Speaker 04:
What about all the concerns that Chief Judge Kessel pointed to in his Boeve decision and in the underlying decision here?

[00:07:22] Speaker 01:
Your Honor, respectfully, I don't think any of those

[00:07:26] Speaker 01:
reasons warrant, one, ignoring the precedent from the Supreme Court, and two, I think, frankly, that they're without a strong basis.

[00:07:38] Speaker 01:
I mean, one of the reasons he raises, Judge Castle raises, in the order below and in the Boeve decision which he wrote is that the secretary would have unwarranted discretion.

[00:07:54] Speaker 01:
As far as I'm aware, waiver does not happen very often.

[00:08:01] Speaker 01:
But where it does, where the secretary has made a choice for the benefit of a veteran, I don't see a basis why we wouldn't want to grant that discretion to the secretary.

[00:08:17] Speaker 01:
Again, for all the reasons we've been discussing, it just doesn't make sense.

[00:08:24] Speaker 01:
And I think it also doesn't make sense in the context of the veterans benefit system.

[00:08:32] Speaker 01:
I mean, this court has been clear for a long time and the Supreme Court has been clear as recently as 2011 in the Henderson versus Shinseki decision that this is a very, the veterans benefit system is a very unique system.

[00:08:50] Speaker 01:
It's a pro-claimant system.

[00:08:52] Speaker 01:
It's a pro-veteran system.

[00:08:55] Speaker 01:
It's a system that reflects Congress's longstanding solicitude to veterans.

[00:09:05] Speaker 01:
And in fact, the Veterans Court was established as part of the Veterans Judicial Review Act, the VJRA.

[00:09:13] Speaker 01:
And that act was intended to, quote, place a thumb on the scale in favor of veterans.

[00:09:25] Speaker 01:
The Henderson decision of course is the decision that found or held that 7266, the statute at issue in this case, is a quintessential claims processing rule.

[00:09:43] Speaker 01:
It's not a jurisdictional rule.

[00:09:47] Speaker 01:
Quintessential claims processing rules like this one are generally subject to waiver and forfeiture.

[00:09:54] Speaker 01:
Jurisdictional rules are not.

[00:09:58] Speaker 01:
What has been done in this case by the Veterans Court is essentially attach the last piece in this puzzle to convert what the Supreme Court has already called the claims processing rule back into a jurisdictional rule.

[00:10:19] Speaker 01:
And there's no precedent, frankly,

[00:10:23] Speaker 01:
anywhere to support taking away the secretary's ability to waive this issue.

[00:10:35] Speaker 01:
Your Honor, what we're asking for here, and one last thing, what the Supreme Court said in Henderson, how they ended their opinion, was they saw no basis to attach the harsh jurisdictional tags

[00:10:53] Speaker 01:
to this Rule 7266.

[00:10:56] Speaker 01:
There's no basis, despite what Judge Kasold said in his order and in the Boeuf decision, to go ahead and do that.

[00:11:06] Speaker 01:
There's just no basis in the record.

[00:11:09] Speaker 01:
We explained in our briefing, and I can certainly touch on that more, but we explained in our briefing why each of the reasons that he raised in the Boeuf decision in this order just don't have any merit.

[00:11:23] Speaker 01:
So, Your Honors, what we're asking for this case, in this case, is fairly modest.

[00:11:31] Speaker 01:
We're not asking this Court to find that Mr. Dixon is entitled to his veterans' benefits and to award those veterans' benefits to him.

[00:11:45] Speaker 01:
We're asking that this Court simply order the Veterans Court to

[00:11:53] Speaker 01:
listen to the merits of Mr. Dixon's appeal, an appeal that he brought in 2008 nearly eight years ago.

[00:12:06] Speaker 01:
Your Honor, unless you have any other questions.

[00:12:09] Speaker 03:
I have a question.

[00:12:12] Speaker 03:
What we see sometimes here where the VA agreed to waive the matter of timeliness, but at the same time the appeal had been filed

[00:12:22] Speaker 03:
Was there any discussion, as we see sometimes, of remanding to the VA to take it up on the merits without going through the judicial process?

[00:12:34] Speaker 01:
Your Honor, just so I'm clear with your question, are you saying, did Judge Kessel ask us whether we were willing to go ahead and remand it back to the VA so they could look at the merits?

[00:12:47] Speaker 03:
Well, before it even got to that stage,

[00:12:52] Speaker 03:
Here we have the VA agreeing to waive the question of timeliness.

[00:12:57] Speaker 03:
At that stage, one would assume that the VA had looked at the merits of the case and thought that it was worth looking into.

[00:13:08] Speaker 03:
But that didn't happen, is that right?

[00:13:12] Speaker 01:
Well, as far as I'm aware, no.

[00:13:14] Speaker 01:
I mean, the procedural posture in this case is slightly more complicated because what happened is

[00:13:20] Speaker 01:
Mr. Dixon brought his appeal in 2008 prior to Henderson.

[00:13:26] Speaker 01:
He was found to be, the court said it was without jurisdiction because it was untimely.

[00:13:32] Speaker 01:
He brought it again in 2012 after Shinseki, the Bovin-Shinseki decisions and said, I have a basis for equitable tolling.

[00:13:42] Speaker 01:
And at that point, submitted a declaration from his treating VA psychiatrist,

[00:13:48] Speaker 01:
The secretary also submitted briefing at that point on equitable tolling.

[00:13:54] Speaker 01:
Actually, I'm not quite sure if they submitted briefing at that point.

[00:13:58] Speaker 01:
I'm pretty sure they did.

[00:13:59] Speaker 01:
And the court ruled that that declaration in Mr. Dixon's statement and medical records were not sufficient to warrant equitable tolling.

[00:14:11] Speaker 01:
And that case was brought up to this court because the secretary had denied Mr. Dixon

[00:14:18] Speaker 01:
the opportunity to present a clarifying declaration from his VA psychiatrist and had failed to extend the time so that they could get the claims file from the VA.

[00:14:30] Speaker 01:
And it's at that point when this court, and Dixon won in 2012, said, yes, you're absolutely entitled to a clarifying declaration from your treating psychiatrist and you should have been granted an extension of time.

[00:14:45] Speaker 01:
It was remanded back and at that point,

[00:14:48] Speaker 01:
the Judge Kesseld asked for further briefing from the parties and some evidence, further evidence.

[00:14:55] Speaker 03:
So the merits have never been looked at?

[00:14:57] Speaker 01:
That's correct, Your Honor.

[00:15:00] Speaker 01:
Unless the Secretary tells you differently, the merits have never been looked at that we've seen.

[00:15:06] Speaker 03:
Okay.

[00:15:07] Speaker 03:
Let's hear from the government.

[00:15:10] Speaker 03:
Thank you, Your Honors.

[00:15:15] Speaker 00:
Good morning, Your Honors.

[00:15:16] Speaker 00:
May it please the court?

[00:15:18] Speaker 00:
We sympathize with Miss Dixon in this case.

[00:15:21] Speaker 04:
We just cannot agree with her.

[00:15:23] Speaker 04:
And waive the equitable tolling defense.

[00:15:26] Speaker 00:
Absolutely, Your Honor.

[00:15:26] Speaker 04:
And you agree it's a non-jurisdictional timeliness defense?

[00:15:30] Speaker 00:
Yes, Your Honor.

[00:15:31] Speaker 00:
We do.

[00:15:32] Speaker 00:
The difference in our positions, I think, is the best.

[00:15:35] Speaker 04:
Are there examples of other courts that can sui sponte control and decide sui sponte non-jurisdictional timeliness defenses?

[00:15:47] Speaker 00:
Well, I think the Wood and Day decisions both go in that vein, but there's an important distinction.

[00:15:53] Speaker 00:
Did you cite Wood in your red brief?

[00:15:56] Speaker 00:
We did not, Your Honor.

[00:15:57] Speaker 00:
We did not respond to it because... Judge Castle didn't discuss Wood either.

[00:16:02] Speaker 00:
No.

[00:16:03] Speaker 00:
And the reason, Your Honor, is there's a very simple distinction between Wood and Day and what we have here and Cheko.

[00:16:09] Speaker 00:
And that distinction is the fact that Wood and Day both dealt with statutory time periods.

[00:16:14] Speaker 00:
And here, this is what we believe is the critical point of CHECO and the critical point that we make in our brief.

[00:16:22] Speaker 00:
The timeliness for filing an appeal to the Veterans Court is prescribed not only by 38 U.S.C.

[00:16:27] Speaker 00:
Section 7266, but also by Rule 4 of the Veterans Court's rules.

[00:16:32] Speaker 00:
And so what we're dealing with, as CHECO recognized, is a time limit that functions as a matter of court rules in addition to the statute.

[00:16:41] Speaker 00:
And it is the authority, it is the court's authority to enforce its own rules that makes this kind of, that makes raising the timeless issue, suesponte appropriate, and also makes deciding it on its own.

[00:16:55] Speaker 04:
Would the Veterans Court be the only court that you know of where it could discard the waiver by the opposing party of a non-jurisdictional timeliness question?

[00:17:10] Speaker 04:
and reach at the issue suesponte.

[00:17:14] Speaker 04:
Is there any other court that does that?

[00:17:15] Speaker 04:
Because we know in habeas petitions that's not the case.

[00:17:20] Speaker 00:
Your Honor, I have two answers to that.

[00:17:23] Speaker 00:
Is this a yes or no?

[00:17:24] Speaker 00:
I'm not aware of any case, however.

[00:17:27] Speaker 04:
So the Veterans Court would stand apart from every other court in every other context in the land in its ability to do this.

[00:17:36] Speaker 00:
Given the unique scheme and yes, I think it would stand apart.

[00:17:40] Speaker 00:
Given the unique scheme.

[00:17:42] Speaker 03:
What's the unique scheme?

[00:17:43] Speaker 03:
This is supposed to be a veterans friendly statute.

[00:17:47] Speaker 03:
So the secretary of the VA issues a veterans friendly, let's say discretionary.

[00:17:53] Speaker 03:
We know it's discretionary, it's not jurisdictional.

[00:17:57] Speaker 03:
And yes, this court does stand apart, but it seems to me that the government's position might be

[00:18:06] Speaker 03:
that it stands apart to favor the veteran, not the other way, to say, no, we're not going to hear what you've been trying to get us to hear for all these years.

[00:18:19] Speaker 00:
Respectfully, Your Honor, I think the framework, the way we see this case, the framework of this case is a little different.

[00:18:27] Speaker 00:
And it's true that this is a non-jurisdictional time limit.

[00:18:31] Speaker 00:
But it is also not a statute of limitations.

[00:18:33] Speaker 00:
The reason that this court stands apart,

[00:18:36] Speaker 00:
Back to your question, Your Honor.

[00:18:39] Speaker 00:
The Veterans Court would stand apart, but it would stand apart because this time period, as Henderson recognized, it's not jurisdictional, but it's also not like a statute of limitations.

[00:18:50] Speaker 00:
Henderson, in fact, distinguished the procedures in ordinary civil litigation from the procedures in the veterans context and explicitly called this time period an important procedural rule.

[00:19:02] Speaker 00:
It's an important procedural rule.

[00:19:04] Speaker 00:
And for that reason, I think the time period is much more analogous to something like rule 31 of- Is it basically a garden variety claim processing rule?

[00:19:14] Speaker 04:
A classic claim processing rule?

[00:19:16] Speaker 00:
I think it slots somewhere between a statute of limitations and an affirmative defense, which is owned by the parties and prescribed by statute, and a jurisdictional rule, which is a limit on the court's authority to hear cases.

[00:19:29] Speaker 00:
I think it stands somewhere in between.

[00:19:30] Speaker 04:
And I think Henderson- Where did it say that?

[00:19:33] Speaker 04:
Where did the Supreme Court in Henderson say that?

[00:19:36] Speaker 04:
I guess I was perceiving it as rather binary, and you're suggesting, no, it's really a spectrum.

[00:19:44] Speaker 04:
And now we have this interesting in-between hybrid between jurisdictional requirements and classic claim process.

[00:19:52] Speaker 03:
I think there are several places to... The theory that you're arguing is there's no precedent, is there?

[00:20:02] Speaker 03:
After Henderson, I think we all assume it's not jurisdictional.

[00:20:07] Speaker 03:
Proceed on the equities and on the merits.

[00:20:11] Speaker 03:
And so here we have the VA doing exactly the equitable thing that will listen to you.

[00:20:19] Speaker 03:
And the court says, no, you won't.

[00:20:22] Speaker 00:
Your Honor, if I may, I have two responses to that.

[00:20:25] Speaker 00:
I think the precedent is actually Checo.

[00:20:29] Speaker 00:
I think the language of Checo and the reasoning of Checo

[00:20:32] Speaker 00:
controls this case, as we explained in our briefs.

[00:20:36] Speaker 00:
And the reason is because Cecho recognized that this time period, one of the reasons that it can be raised to a sponte is that this is a time period that not only exists in the statute, but also exists in the rules and in the Veterans Court's rules.

[00:20:50] Speaker 00:
And Cecho itself explicitly stated that Congress, quote, gave the Veterans Court broad discretion to prescribe, interpret, and apply its own rules.

[00:20:58] Speaker 00:
And there's a line of cases from this court that recognize that.

[00:21:00] Speaker 04:
was pretty careful too because in the footnotes in Checo it said it doesn't have in front of it what we have in front of us now, which is an expressed waiver by the VA.

[00:21:12] Speaker 04:
And so therefore Checo never had any opportunity or reason and it actually carefully avoided addressing that question.

[00:21:20] Speaker 04:
And that's in front of us today.

[00:21:22] Speaker 00:
I think that's absolutely right, Your Honor, and that's why in our brief we characterized this case as an extension of Checo.

[00:21:27] Speaker 00:
Checo does not address this factual circumstance, but the reasoning of Checo.

[00:21:31] Speaker 00:
is what applies here.

[00:21:34] Speaker 02:
But doesn't Checo cite both wood and day, suggesting that Checo, at least, you know, there was no suggestion in Checo that wood and day wouldn't apply in a veteran's case?

[00:21:48] Speaker 00:
Your Honor, I believe it does.

[00:21:50] Speaker 00:
It certainly cites day.

[00:21:52] Speaker 00:
I don't fall off the top of my head whether it cites wood.

[00:21:56] Speaker 00:
But again, as I indicated, there's critical distinctions between

[00:22:01] Speaker 00:
this circumstance and the circumstance presented in the habeas context.

[00:22:06] Speaker 00:
In the habeas context, the time period is controlled by statute, the Anti-Terrorism and Effective Death Penalty Act.

[00:22:12] Speaker 00:
And so the time period to file an appeal is prescribed by statute.

[00:22:16] Speaker 00:
And generally speaking, statutory time periods are statute of limitations.

[00:22:22] Speaker 00:
They're affirmative defenses.

[00:22:23] Speaker 00:
They're owned by the parties.

[00:22:25] Speaker 00:
When something is in a court rule, the court has

[00:22:29] Speaker 00:
authority and has increased power to control its own docket.

[00:22:32] Speaker 00:
And that's why I analogize this case to an instance when a party files an untimely brief in a court.

[00:22:40] Speaker 00:
For example, this court's rule 31 prescribes the time period to file a brief.

[00:22:44] Speaker 00:
A party misses the time period, files a motion for leave to file its brief out of time with this court.

[00:22:51] Speaker 00:
I, as the government, say that I don't oppose.

[00:22:53] Speaker 00:
But that is not controlling on this court.

[00:22:55] Speaker 00:
It is the court's

[00:22:57] Speaker 00:
prerogative its inherent authority to manage the cases that are before it and to decide that a particular waiver of a time period is or is not appropriate.

[00:23:10] Speaker 00:
And I think the flip side of what Ms.

[00:23:14] Speaker 00:
Dixon is advocating is that the secretary could unilaterally require the Veterans Court to hear a case that under the Veterans Court's rules is untimely.

[00:23:26] Speaker 02:
I think another thing that's important to remember here is what... Aren't the court's rules just implementing the statute?

[00:23:32] Speaker 00:
They absolutely echo the statute, Your Honor.

[00:23:35] Speaker 00:
That is true.

[00:23:36] Speaker 00:
Rule four parallels the language of section 7266.

[00:23:40] Speaker 00:
But I think the fact that the court went through the process of incorporating that language, pursuant to the authority granted to it by Congress, pursuant to authority granted to it in 38 U.S.C.

[00:23:53] Speaker 00:
section 7264A,

[00:23:55] Speaker 00:
demonstrates that in doing so the court makes that time period part of its own, essentially something that it owns and it should administer.

[00:24:10] Speaker 04:
So would that be true for any court or other administrative tribunal where it takes a claim processing limit from a statute and incorporates it into some kind of regulation?

[00:24:22] Speaker 04:
Now that court or tribunal owns

[00:24:26] Speaker 04:
That statutory time limit in a way that it can now discard waivers of non-jurisdictional timeliness provisions?

[00:24:36] Speaker 00:
I think in theory, yes, Your Honor.

[00:24:37] Speaker 00:
The reason it wouldn't come up in practice, though, it wouldn't come up in practice.

[00:24:41] Speaker 00:
And the reason it wouldn't come up in practice is there's several.

[00:24:45] Speaker 00:
One is that most tribunals hear more than one type of case.

[00:24:49] Speaker 00:
And so statute of limitations differ depending on the substance of the case that's presented.

[00:24:53] Speaker 00:
Two, the Supreme Court has made clear that generally the time periods to appeal from a district court to a circuit court is jurisdictional.

[00:25:01] Speaker 00:
So in a way, the veteran scheme is unique and not repeated in other contexts because everywhere else, the time to appeal a district court's decision is jurisdictional and the court can't waive it.

[00:25:16] Speaker 00:
So in a sense, it's actually not that different.

[00:25:20] Speaker 00:
That's why I say that Henderson

[00:25:23] Speaker 00:
treads this middle ground between the kind of waiver that happens under the federal rules of civil procedure and the jurisdictional timelines that the court in Henderson flatly rejected.

[00:25:39] Speaker 04:
Can you show me where Henderson had said that?

[00:25:43] Speaker 04:
Because I was picking up the same signals as Judge Newman, which was the theme that O.R.

[00:25:49] Speaker 04:
veterans great solicitude.

[00:25:52] Speaker 04:
when it comes to these disability benefits claims?

[00:25:57] Speaker 00:
And I think that is absolutely the gestalt of Henderson.

[00:26:02] Speaker 00:
The language on which I rely and which I'm referring to here begins on page, if I may beg the court's indulgence.

[00:26:15] Speaker 03:
Show us the language that says that the VA cannot waive equitably to all the statutes.

[00:26:23] Speaker 00:
I'm sorry, Your Honor, I didn't quite understand the question.

[00:26:27] Speaker 03:
If you're relying on Henderson, I certainly don't remember Henderson saying that the VA is prohibited from equitably tolling the statute of limitations, the timeliness requirement.

[00:26:42] Speaker 00:
There's certainly not that kind of language in Henderson.

[00:26:45] Speaker 00:
And I'm not suggesting that there is, Your Honor.

[00:26:47] Speaker 03:
What I'm suggesting is that... But isn't that what this case is about?

[00:26:50] Speaker 03:
The secretary?

[00:26:52] Speaker 03:
makes a decision that it's entitled to make, clearly entitled to make, that favors the veteran.

[00:26:58] Speaker 03:
It says, all right, we'll hear your claim.

[00:27:01] Speaker 03:
The court comes in and says, you can't do that.

[00:27:05] Speaker 03:
And I need to understand we give great respect to the Veterans Court.

[00:27:10] Speaker 03:
They're extremely competent.

[00:27:13] Speaker 03:
But this seems very strange to me.

[00:27:17] Speaker 03:
And particularly in the context, which is also in all the statutes,

[00:27:22] Speaker 03:
that these are supposed to be veterans friendly provisions throughout.

[00:27:29] Speaker 03:
And yet to reverse the secretary and say you are prohibited from hearing this veteran's claim just seems extraordinary to me.

[00:27:43] Speaker 00:
Your Honor, respectfully, may I just respond to that because I think there's a slight

[00:27:50] Speaker 00:
I think there may be a way that I can clarify the framework.

[00:27:53] Speaker 00:
What Ms.

[00:27:53] Speaker 00:
Dixon is seeking is not to have the VA hear its case, it's to have the Veterans Court hear its case.

[00:27:59] Speaker 00:
And so what happens is Ms.

[00:28:00] Speaker 00:
Dixon comes to the Veterans Court and says, please give me the benefit of equitable tolling.

[00:28:04] Speaker 00:
The secretary, a party in this litigation says, we do not oppose that request.

[00:28:14] Speaker 00:
It is up to you to determine whether you will hear it.

[00:28:17] Speaker 03:
And the court then... Why is it up to the court?

[00:28:19] Speaker 03:
Why doesn't that end it?

[00:28:22] Speaker 03:
Shouldn't there have been some request for dismissal or remand or whatever to consider the merits?

[00:28:31] Speaker 00:
Your Honor, actually, I don't believe that a remand would be appropriate.

[00:28:34] Speaker 00:
And the reason is because the right that Miss Dixon is asserting is essentially a procedural right to have

[00:28:40] Speaker 00:
her claim heard.

[00:28:41] Speaker 00:
There was already a decision at the board.

[00:28:43] Speaker 00:
What she is seeking is a procedural right to have the Veterans Court review that decision.

[00:28:48] Speaker 00:
The Secretary of Veterans Affairs never said the initial decision of the board was wrong or we need to reconsider that or anything of that nature.

[00:28:57] Speaker 00:
What the Secretary said was, based upon your circumstances, you should have another tribunal look at this.

[00:29:05] Speaker 00:
But the Secretary can't look at it again, and the Secretary can't

[00:29:09] Speaker 00:
force the court to look at it again.

[00:29:11] Speaker 03:
Why can't the secretary look at it again?

[00:29:14] Speaker 03:
We have seen quite often requests for voluntary dismissal, even by the time it gets here on appeal, so that the secretary can look at it again.

[00:29:24] Speaker 03:
Perhaps there's been something in the briefs that hadn't been flagged before, had been inadequately presented, or perhaps other considerations.

[00:29:36] Speaker 00:
I apologize, I think I was imprecise.

[00:29:40] Speaker 00:
The secretary can ask to have something heard again to reconsider something, but in this case, it did not believe that the board's decision was wrong.

[00:29:49] Speaker 00:
So there was no reason for the secretary to voluntarily go out and say, please, we want to reconsider this.

[00:29:55] Speaker 00:
What the secretary was trying to provide and assist the veteran in obtaining is a further level of review to which the veteran would be entitled if

[00:30:05] Speaker 00:
he or she could demonstrate that the timing requirements have been met.

[00:30:09] Speaker 03:
That's not unreasonable.

[00:30:11] Speaker 03:
Now we have the court saying, no, you can't do that.

[00:30:15] Speaker 03:
We won't look at it.

[00:30:18] Speaker 03:
I'm trying to understand the combination of where the equities are, because this was equitable tolling, the policy with respect to veterans and the complexities of the regional offices and the boards and the secretary and the court

[00:30:36] Speaker 03:
special court and all the rest of it to try and get it straight for the future?

[00:30:42] Speaker 00:
Certainly.

[00:30:44] Speaker 00:
The short answer, Your Honor, is that as we read Cheko and as we read the Veterans Court's rules, it appears to us that Cheko's language gives the Veteran Court the discretion to manage its cases by not only raising but also analyzing the questions of timeliness and

[00:31:06] Speaker 00:
That is what the court did in this case.

[00:31:08] Speaker 00:
It was acting pursuant to rule four.

[00:31:12] Speaker 03:
You can't be telling us that the veteran system runs for the benefit of the court.

[00:31:17] Speaker 00:
I'm not suggesting that the veteran system runs for the benefit of the court, but I think it's also important to... We haven't seen this anywhere except in this case.

[00:31:25] Speaker 03:
I mean, it's curious when one party waives a decision or a position that's in its favor for the court to say you can't waive.

[00:31:35] Speaker 00:
Your Honor, I think our position succinctly stated is that the Veterans Court is unique in some ways, but also has the attributes of other courts of primary jurisdiction and other courts of appeal in that it is a court that has the powers of law and equity and it has inherent authority to manage its cases.

[00:31:59] Speaker 03:
Both courts have that, but not on the backs of

[00:32:05] Speaker 03:
complainants who the courts are supposed to favor?

[00:32:11] Speaker 00:
Your Honor, I, again, I recognize that we certainly recognize that Henderson and the whole line of cases establish a very pro-veteran regime in the substantive area of benefits.

[00:32:26] Speaker 00:
In this case, however, does not strike us as a case of, if this were

[00:32:35] Speaker 00:
a case of benefits strictly presented, if this were a case of whether a certain presumption should attach, I think that characterization could have power.

[00:32:52] Speaker 00:
But because we're dealing essentially with a procedural rule of the court, the question starkly presented is whether the court should have authority

[00:33:04] Speaker 00:
to manage its cases in this particular way.

[00:33:07] Speaker 04:
Spurlock, you were going to give me a quotable quote from Henderson that you felt like gave us all a hint that maybe this court, this veterans court, could do what no other court can do in reaction in the face of a waived equitable defense.

[00:33:26] Speaker 04:
What is that quote?

[00:33:27] Speaker 00:
Yes, Your Honor.

[00:33:28] Speaker 00:
I have located it.

[00:33:29] Speaker 00:
So at page 562 US 440.

[00:33:34] Speaker 00:
There is a discussion about the distinction between veterans litigation and ordinary civil litigation.

[00:33:42] Speaker 00:
And the court is discussing it to distinguish waiver, I'm sorry, not waiver, to distinguish periods of appeal in ordinary civil litigation from the periods of appeal at issue here.

[00:33:59] Speaker 00:
And so there's a paragraph

[00:34:03] Speaker 00:
where the court talks about the contrast between ordinary civil litigation, which provided the context of our decision in bowls, setting the jurisdictional limit for appeal, and the system that Congress created for the adjudication of veterans' benefits.

[00:34:15] Speaker 00:
One of the things that the court mentions is that these cases are really not subject to the federal rules of civil procedure.

[00:34:21] Speaker 00:
There's an entirely different procedural.

[00:34:24] Speaker 04:
Where's the quote?

[00:34:24] Speaker 04:
I'm looking.

[00:34:26] Speaker 00:
Your Honor, I was not suggesting that there is a particular sentence.

[00:34:30] Speaker 00:
What I was suggesting is that this discussion

[00:34:33] Speaker 00:
distinguishing veterans cases from ordinary civil litigation, which is the kinds of claim rules on which Miss Dixon relies in arguing that not accepting waiver was improper.

[00:34:46] Speaker 00:
That sets part of the parameter.

[00:34:48] Speaker 00:
And then the second part is the court stating that the, quote, the 120-day limit is nevertheless an important procedural rule.

[00:34:58] Speaker 00:
It's a procedural rule, and procedural rules

[00:35:01] Speaker 00:
can be something that are prescribed by the court and administered by the court and are not just owned by the parties.

[00:35:07] Speaker 00:
In other words, what the court, what Henderson did is it distinguished this time period from an affirmative defense.

[00:35:13] Speaker 00:
It said this is not like an affirmative defense.

[00:35:14] Speaker 00:
An affirmative defense functions under the federal rules of civil procedure.

[00:35:18] Speaker 00:
CHECO itself recognized that these cases are not subject to the federal rules of civil procedure.

[00:35:25] Speaker 00:
Waiver in, under those

[00:35:29] Speaker 00:
claim rules is not appropriate.

[00:35:32] Speaker 00:
It's something else.

[00:35:33] Speaker 00:
It's some sort of in-between system.

[00:35:34] Speaker 00:
And I think the way that we look at the veteran court's opinion, Henderson, and this court's decision in Checo is that if this case were like any other case,

[00:35:50] Speaker 00:
any other appeal brought to an appellate court, there would be a hard jurisdictional cutoff on 120 days, and equitable toy wouldn't even be possible.

[00:35:58] Speaker 02:
How often does a situation like this arise?

[00:36:01] Speaker 02:
In other words, it seems to me it wouldn't be very frequent that the secretary would waive the timeliness issue.

[00:36:08] Speaker 00:
It's not very frequent, Your Honor.

[00:36:09] Speaker 02:
Can you give us a little bit more detail?

[00:36:11] Speaker 00:
Your Honor, I'm not aware of other examples where this has happened.

[00:36:17] Speaker 00:
I'll step back.

[00:36:18] Speaker 00:
It happened in both.

[00:36:19] Speaker 00:
Both analyzed a set of cases which ran the gamut between waiver and non-waver.

[00:36:27] Speaker 00:
And that's why both initially brought up this issue that the time period is not waivable.

[00:36:32] Speaker 00:
So it occurred there.

[00:36:35] Speaker 00:
It does not occur very often, certainly.

[00:36:36] Speaker 04:
One last question.

[00:36:37] Speaker 04:
As a general matter, is it correct that the Veterans Court or a clerk of the Veterans Court

[00:36:45] Speaker 04:
scours all of the appeals for possible untimeliness issues, and then issues in order to both parties or just the veteran on questions of equitable tolling.

[00:37:00] Speaker 04:
Can you explain how that process works?

[00:37:03] Speaker 00:
Certainly, Your Honor.

[00:37:04] Speaker 00:
The process is described in Cheko.

[00:37:06] Speaker 00:
And my understanding of the process is that the court looks at the filed petitions

[00:37:14] Speaker 00:
for appeal and identifies any that are untimely and then gives the parties, the parties are presented an opportunity to either raise equitable tolling issues or the case is simply dismissed.

[00:37:29] Speaker 04:
That would be the time where the VA, if it wanted to, could elect to waive the defense.

[00:37:36] Speaker 04:
Yes.

[00:37:37] Speaker 00:
Yes, that could be the time.

[00:37:40] Speaker 03:
Okay.

[00:37:40] Speaker 03:
Okay.

[00:37:42] Speaker 03:
Thank you.

[00:37:42] Speaker 03:
Thank you, Your Honors.

[00:37:50] Speaker 01:
Your Honor, my colleague here had a number of points about the difference between the statute that controls 7266 and the rule that controls, I think he was saying, rule four.

[00:38:08] Speaker 01:
There can't be any daylight between that statute and the rule.

[00:38:11] Speaker 01:
The Veterans Court certainly can't say, oh, the statute says 120 days, but we're only giving you 60 days.

[00:38:19] Speaker 01:
Like you said, Judge Stoltz,

[00:38:20] Speaker 01:
They can maybe interpret that rule to allow equitable tolling, but they certainly can't interpret that rule to make it more difficult for the veteran to bring his notice of appeal.

[00:38:34] Speaker 01:
And in fact, the court has another rule.

[00:38:40] Speaker 01:
Actually, the Veterans Court, there's another statute that governs it that actually limits what the Veterans Court can hear.

[00:38:50] Speaker 01:
7261A says the Veterans Court can hear issues when presented.

[00:38:59] Speaker 01:
When the Secretary waived this equitable tolling issue, that issue was no longer presented to the Veterans Court.

[00:39:09] Speaker 01:
There was no basis at that point for a number of reasons, but also for the reasons stated in 7261A, for it to continue on and to assess

[00:39:20] Speaker 01:
that question independently.

[00:39:24] Speaker 01:
And respectfully, as you were saying, Judge Newman and Judge Chen, and I think you as well, Judge Tolte, there's no ambivalence whatsoever in the Henderson decision.

[00:39:35] Speaker 01:
I don't think the Henderson decision left anything up to chance.

[00:39:40] Speaker 01:
Yes, it's an important procedural rule, but it is also a quintessential claims processing rule.

[00:39:47] Speaker 01:
And it is not to carry the harsh jurist

[00:39:50] Speaker 01:
jurisdictional attributes as a jurisdictional rule.

[00:39:55] Speaker 01:
All that the Veterans Court has done is attach those harsh jurisdictional attributes to this statute that Henderson has already said cannot be applied.

[00:40:08] Speaker 04:
Well, to be fair, the Veterans Court's not treating this as a jurisdictional rule.

[00:40:13] Speaker 04:
It's obviously considering the possibility of equitable tolling.

[00:40:18] Speaker 01:
Yes, that's correct, Your Honor.

[00:40:20] Speaker 01:
With a jurisdictional rule, you cannot waive or forfeit a defense.

[00:40:30] Speaker 01:
But with a claims processing rule, you can.

[00:40:33] Speaker 01:
And what I think we've learned from Day and Wood and from other opinions, like Eberhardt and Kontrick, is a party has every opportunity and every right to decide the issues that they want to bring forward, and a waiver especially.

[00:40:49] Speaker 04:
We agree with you.

[00:40:51] Speaker 04:
Are we going to have to accept late-filed briefs if the other side doesn't oppose?

[00:40:57] Speaker 01:
Well, if there's a distinction, I believe that we discussed Judge Chen between waiver and forfeiture.

[00:41:05] Speaker 01:
And I think my colleague's right that typically the Veterans Court will raise the timeliness issue to a sponte, ask the parties to weigh in.

[00:41:15] Speaker 01:
If the secretary said nothing,

[00:41:18] Speaker 04:
I'm talking about the fact that Mr. Sverdlov pointed out that there are times where people don't file their briefs to this court on time.

[00:41:28] Speaker 04:
And then maybe the opposing party says, you know, we certainly don't oppose the fact that they filed their, you know, gray brief 90 days late.

[00:41:40] Speaker 04:
And then under the same reasoning that you have,

[00:41:44] Speaker 04:
Wouldn't that mean that we would just have to accept that gray brief?

[00:41:48] Speaker 01:
Well, Judge Shen, if you're talking about appeal to this court.

[00:41:52] Speaker 04:
Or a brief.

[00:41:53] Speaker 04:
We're just talking about briefs and timelines and deadlines for filing briefs.

[00:41:58] Speaker 01:
Apologies.

[00:41:58] Speaker 01:
So if we're just talking a motion for extension of time, no.

[00:42:02] Speaker 01:
I think there is a very clear difference between the rule governing equitable tolling and a motion for extension of time, a motion as to word limits.

[00:42:15] Speaker 01:
issues, extension of time, word limits, that's all about the court running its own docket.

[00:42:23] Speaker 01:
A notice of appeal, a timeliness defense, is a dispositive issue.

[00:42:28] Speaker 01:
If you lose on that issue, that's the end of it.

[00:42:34] Speaker 01:
You can't have your appeal heard.

[00:42:36] Speaker 01:
If you have, for example, gone over the word limits, okay, that's not a dispositive issue.

[00:42:43] Speaker 01:
So one is truly just

[00:42:45] Speaker 01:
the court rolling with its own docket versus another, which is a dispositive issue, which is a right of the party to do with what they see fit.

[00:42:55] Speaker 01:
If they don't want to present that issue, they don't have to present that issue.

[00:43:00] Speaker 03:
Any more questions?

[00:43:01] Speaker 03:
Any more questions?

[00:43:03] Speaker 03:
Thank you both.

[00:43:04] Speaker 03:
The case is taken under submission.

[00:43:05] Speaker 03:
Thank you.