[00:00:02] Speaker 01: We have one case this morning, which is number 171277, E-Banks v. Shulkin. [00:00:10] Speaker 01: Mr. Lipman. [00:00:11] Speaker 03: Thank you, Your Honor. [00:00:15] Speaker 03: Mark Lipman, hearing for the petitioner and the appellant, Elon E-Banks. [00:00:22] Speaker 03: I just wanted to ask if the Court wanted any feedback on the recent 28-J letter of the Secretary. [00:00:31] Speaker 01: Did the hearing take place on October 11th? [00:00:35] Speaker 01: Yes, it did. [00:00:38] Speaker 03: And so why isn't this case moved? [00:00:42] Speaker 03: For two reasons, Your Honor. [00:00:43] Speaker 03: The first one is that it's still a live controversy in the sense that if the court were to take the case and decide it in the appellant's favor, then it would go down and there's still the issue of whether the Veterans Court would issue interim benefits. [00:01:00] Speaker 03: In other words, there's still partial relief that's possible in the case. [00:01:05] Speaker 03: So that part makes it still a live controversy. [00:01:08] Speaker 01: And there's a- Interim benefits before the board renders its decision, you mean? [00:01:13] Speaker 01: Right. [00:01:16] Speaker 01: Yeah. [00:01:16] Speaker 01: You don't. [00:01:17] Speaker 05: Did you ask us to mandamus and order interim benefits? [00:01:21] Speaker 05: I thought you just asked for a hearing. [00:01:23] Speaker 03: No, no. [00:01:24] Speaker 03: What I asked you, [00:01:29] Speaker 03: was to get a proper standard. [00:01:31] Speaker 04: On whether a hearing was entitled. [00:01:35] Speaker 04: No, I mean, he's entitled to a hearing. [00:01:37] Speaker 04: Yeah, I'm sorry. [00:01:38] Speaker 04: On whether the hearing should be ordered immediately. [00:01:42] Speaker 03: Right. [00:01:43] Speaker 03: But the court, as part of its action in deciding whether it's an unreasonable delay or not, can award interim benefits. [00:01:49] Speaker 04: I don't see where you preserve that for us. [00:01:53] Speaker 03: It's in the reply brief, Your Honor. [00:01:55] Speaker 04: Well, that doesn't preserve anything. [00:01:57] Speaker 03: What's the other theory? [00:01:59] Speaker 03: The other theory is it's capable of repetition but evading review. [00:02:04] Speaker 03: In other words, would you mind if I could do supplemental briefing on this, if the court is serious about the mootness issue? [00:02:13] Speaker 01: Because I haven't. [00:02:16] Speaker 01: I think you can file a letter on that. [00:02:19] Speaker 01: But first, under the Kingdome case and earlier Supreme Court cases, [00:02:25] Speaker 01: In order to satisfy capable of repetition yet evading review, the individual plaintiff in a non-class action situation has to show the likelihood of repetition with respect to him individually. [00:02:39] Speaker 01: This was not a class action case. [00:02:41] Speaker 01: How is this likely to reoccur with respect to your client? [00:02:45] Speaker 03: Because he could, let's say the board remands the case again, he can ask for another hearing and be subject to the same delay. [00:02:54] Speaker 04: It's not the same delay, it's a different delay. [00:02:58] Speaker 04: It's the same practice, same policy. [00:03:00] Speaker 04: Yeah, but if that's the case, if you don't get relief from the board now and you get a delay later, you can ask for mandamus again. [00:03:11] Speaker 03: And let it moot out once again and then do it again and again? [00:03:16] Speaker 03: I think that's the very concept of capable repetition. [00:03:18] Speaker 00: It would not necessarily mood out. [00:03:20] Speaker 00: I mean, if you raise the issue, if it happens again, you can raise the issue. [00:03:24] Speaker 00: You may very well get a hearing here before you get a hearing before the board. [00:03:30] Speaker 03: Right. [00:03:31] Speaker 03: But I'm saying that the hearing has been unreasonably delayed. [00:03:34] Speaker 01: This is his only case, right? [00:03:36] Speaker 01: Yes. [00:03:36] Speaker 01: There's no possibility that this would arise in another case involving this individual. [00:03:41] Speaker 01: Yes, it will have a possibility of arising again. [00:03:44] Speaker 01: In other words, [00:03:45] Speaker 01: No, no, but I'm sorry. [00:03:46] Speaker 01: I'm trying to take this one step at a time. [00:03:49] Speaker 01: Put this case to one side and put to one side the possibility of a remand and a delay as a result of the remand. [00:03:57] Speaker 01: This is the only case he has in the system, right? [00:04:01] Speaker 01: Correct. [00:04:02] Speaker 01: And there's no likelihood he's going to have another case. [00:04:09] Speaker 03: I don't know. [00:04:09] Speaker 03: I mean, another case. [00:04:12] Speaker 03: You can always file another case. [00:04:14] Speaker 03: I mean, there's no limit to when he could file a case. [00:04:16] Speaker 01: I'm not sure I understand. [00:04:18] Speaker 01: There's no other disability or something like that that might lead to another case, right? [00:04:29] Speaker 01: I guess not. [00:04:29] Speaker 01: I just don't see how that's relevant. [00:04:32] Speaker 01: OK, but the answer is you guess not. [00:04:34] Speaker 01: But so in order to find capable repetition yet evading review, we'd have to find that there was, I guess, a likelihood [00:04:43] Speaker 01: that on the remand of this case, that the same delay would occur again. [00:04:48] Speaker 01: Why is that likely? [00:04:51] Speaker 03: Because if the board remands, he's going to ask for another hearing. [00:04:57] Speaker 03: And he's entitled to another hearing. [00:04:58] Speaker 03: And so if he's entitled, we have to go through the same drill. [00:05:01] Speaker 04: Well, that presumes the board doesn't award benefits. [00:05:04] Speaker 03: I'm sorry? [00:05:05] Speaker 04: That presumes the board doesn't award benefits. [00:05:08] Speaker 03: It usually doesn't, right? [00:05:10] Speaker 04: But we don't know. [00:05:10] Speaker 04: It does sometimes. [00:05:13] Speaker 03: It's less likely that the statistics say no, that they usually don't grant benefits. [00:05:17] Speaker 03: They remand the great majority. [00:05:19] Speaker 04: But even if they remand, the RO could award benefits. [00:05:24] Speaker 03: Could. [00:05:25] Speaker 04: You don't get another hearing, do you? [00:05:27] Speaker 04: You get a hearing now if they order a remand. [00:05:30] Speaker 04: Do you get another hearing? [00:05:31] Speaker 03: I'd like to brief that. [00:05:33] Speaker 03: Where? [00:05:33] Speaker 04: At the RO? [00:05:36] Speaker 03: At the BVA. [00:05:37] Speaker 03: It says it is entitled to a hearing on any appeal. [00:05:42] Speaker 01: I'm not following that. [00:05:44] Speaker 01: He's had his hearing on this appeal and if there's a remand, if the board agrees that this claim should be further adjudicated, it would go back to the RO, right? [00:05:59] Speaker 03: If they remand, right? [00:06:00] Speaker 03: I mean, sometimes they'll keep it and they'll have additional, they'll do development on their own through the [00:06:07] Speaker 03: separate entity, but usually they'll remand it to the RO if they do. [00:06:10] Speaker 01: But they don't order another hearing immediately before the board, right? [00:06:15] Speaker 03: Right. [00:06:17] Speaker 03: So what we are talking about... So let's take the scenario. [00:06:20] Speaker 03: They remand it to the regional office. [00:06:22] Speaker 03: The regional office denies it. [00:06:26] Speaker 03: It goes back to the board for another appeal, and we're entitled to a hearing. [00:06:31] Speaker 03: That's the language. [00:06:32] Speaker 03: Any appeal, we're entitled to a hearing. [00:06:35] Speaker 04: Of course you're entitled to a hearing if it gets denied again on remand, but that's a chain of events that we don't know whether it's going to happen or not. [00:06:44] Speaker 04: The RRO could certainly award benefits if you get a remand. [00:06:48] Speaker 04: The DBA could award benefits. [00:06:51] Speaker 01: I think it might be useful, and most of my colleagues disagree, for you to submit a letter exploring this [00:06:59] Speaker 01: that there has to be some likelihood that this individual would have the same issue arise in his case in the future. [00:07:10] Speaker 01: And the question is, you know, under the case law, is the scenario that you hypothesize sufficient to bring him within the capable of repetition doctrine? [00:07:28] Speaker 03: also argue the first point that I mentioned, that it's still a live controversy, that there's still partial relief that could be granted. [00:07:38] Speaker 04: I just don't see how you preserved that. [00:07:40] Speaker 04: To me, it wasn't. [00:07:43] Speaker 04: I don't know why. [00:07:43] Speaker 04: Well, you have to preserve issues for appeal. [00:07:46] Speaker 04: You're asking us to order the Veterans Court to reconsider its refusal to order a hearing based on a new standard. [00:07:55] Speaker 04: There's no reason for us to do that because the Veterans Court won't order a hearing that's already been given. [00:08:03] Speaker 04: I mean, we can change the standard, but that's an advisory opinion because you've already gotten your hearing here. [00:08:10] Speaker 04: You can shake your head at me all you want. [00:08:12] Speaker 04: Well, I disagree, Your Honor. [00:08:14] Speaker 04: It's not particularly appropriate, even if you disagree, to shake your head at the judges. [00:08:17] Speaker 04: I apologize, Your Honor. [00:08:18] Speaker 04: But it's an advisory opinion. [00:08:20] Speaker 04: You've gotten a hearing. [00:08:23] Speaker 04: And so we can correct the standard going forward, but it's not going to apply to this particular hearing. [00:08:29] Speaker 01: Why don't you limit the supplemental briefing to the capable repetition issue? [00:08:37] Speaker 01: OK. [00:08:37] Speaker 01: And we'll give you how long do you need? [00:08:40] Speaker 01: Is 10 days enough? [00:08:44] Speaker 01: Sure. [00:08:44] Speaker 01: 10 days is enough. [00:08:46] Speaker 01: So why don't you file a letter brief not exceed five pages? [00:08:51] Speaker 01: within ten days and then we'll give the government ten days to respond to that. [00:08:58] Speaker 01: And the response will be limited to five pages also, and just addressing the capable repetition issue. [00:09:06] Speaker 01: So why don't we, unless my colleagues have other questions on the bootness, why don't we move on to the merits of the issue. [00:09:15] Speaker 03: Fair enough. [00:09:18] Speaker 03: I'm here today to ask the court to adopt what the Federal Circuit set forth in a case called TRAC, as opposed to the Costanza standard, the Arbitrary Refusal to Act. [00:09:33] Speaker 03: The Arbitrary Refusal to Act is really no standard at all. [00:09:37] Speaker 03: It's more irrebuttable presumption in favor of the agency. [00:09:42] Speaker 03: As long as the agency can show uniformity [00:09:46] Speaker 03: and non-discrimination in its scheduling, it passes Costanza. [00:09:53] Speaker 01: Let's back up a little. [00:09:54] Speaker 01: What is the problem here? [00:09:56] Speaker 01: I've taken a look at the annual report of the VA about this process. [00:10:03] Speaker 01: We've had previous cases involving this, including the Monk case. [00:10:10] Speaker 01: What's the issue here? [00:10:12] Speaker 01: There seem to be substantial delays [00:10:15] Speaker 01: from the time that the veteran files his notice of disagreement until the statement of the case and then substantial delays between the filing of the statement of the case and adjudication by the board. [00:10:31] Speaker 01: What's the source of these problems? [00:10:34] Speaker 01: Some of these problems seem to originate at the regional office in terms of getting the statement of the case done and some seem to arise at the board. [00:10:43] Speaker 01: And I understand your [00:10:45] Speaker 01: complaining only about a limited period of delay in granting the hearing. [00:10:49] Speaker 01: But I think it would be helpful to us to have a broader perspective of what the problems are with the system. [00:10:59] Speaker 03: That's a good question, Your Honor. [00:11:00] Speaker 03: I believe that the VA lacks a solid central structure, that what's happening is you have [00:11:14] Speaker 03: a couple people and top management leaders trying to implement policy and then everyone else trying to implement it. [00:11:21] Speaker 03: And it's fragmented. [00:11:25] Speaker 03: The planning is flawed often. [00:11:27] Speaker 03: It's poorly executed. [00:11:29] Speaker 03: And if I were to do it, if I were to have, say, I would say that you need, I mean, we're talking about a mammoth, a mammoth bureaucracy. [00:11:38] Speaker 03: And when you need a, I would say a committee of maybe 20 [00:11:42] Speaker 03: Just outstanding, outstanding. [00:11:45] Speaker 01: That's not our job to do that. [00:11:48] Speaker 01: What I'm trying to understand is what is the source of the problems that cause the delay in this system? [00:11:55] Speaker 01: Is it lack of resources, lack of application of those resources to solve these problems? [00:12:03] Speaker 01: What's going on? [00:12:04] Speaker 01: Is it a problem at the regional office? [00:12:09] Speaker 01: is the real problem at the board level? [00:12:13] Speaker 01: What's the source of the problem on here? [00:12:17] Speaker 03: I don't work for the VA, so I can't tell you exactly. [00:12:20] Speaker 01: You do a lot of VA cases. [00:12:22] Speaker 03: You don't have a sense of this? [00:12:24] Speaker 03: I just think from my personal experience, there's just a lot of incompetence. [00:12:28] Speaker 03: I mean, you have people that, a lot of people that don't know what they're doing. [00:12:31] Speaker 03: There's not proper oversight. [00:12:33] Speaker 00: Well, is it a failure on the part of the VA to have enough [00:12:39] Speaker 00: Judges on the board is it a failure to have enough equipment to provide these video conferences? [00:12:48] Speaker 00: Which it seems to me if there is any agency yet that has the credibility to go to Congress and ask for more money. [00:12:54] Speaker 03: It's the VA I would think that you would need More judges that are available to do it that is more equipment How many they say they have enough equipment [00:13:08] Speaker 01: How many judges are there on the board? [00:13:10] Speaker 03: I'm going to guess, because I don't know the answer to that question. [00:13:14] Speaker 03: About 130? [00:13:16] Speaker 03: Wow. [00:13:17] Speaker 04: I have the statistics. [00:13:21] Speaker 04: If they've increased to that number, that's good. [00:13:24] Speaker 04: But at least the last report I have from 2015 shows 63. [00:13:28] Speaker 04: OK, I apologize. [00:13:31] Speaker 04: No, no. [00:13:33] Speaker 04: be on the record. [00:13:34] Speaker 04: I mean, I'm not criticizing for you, but I mean, if you think there are that many more, maybe they've done something in the last year to increase the numbers. [00:13:41] Speaker 04: I don't know why I, somewhere I read maybe, maybe the secretary will have some further information. [00:13:48] Speaker 00: In this case, Mr. E-Banks requested a video conference, didn't get an answer. [00:13:56] Speaker 00: Requested again didn't get an answer requested a third time and finally got an answer that took 17 months In your experience Is that normal it's typical that's what that's how long it takes for the for the VA to simply inform the veteran in this case that well your [00:14:22] Speaker 00: You know, we hear these things on a first-come, first-served basis, and we can't really estimate when you might have a hearing. [00:14:29] Speaker 00: It seems to me that kind of a response should be something the VA could generate in 20 days, 30 days. [00:14:37] Speaker 03: I would agree with that. [00:14:38] Speaker 00: Why does it take 17 months? [00:14:42] Speaker 00: But you think that's typical? [00:14:47] Speaker 03: Yeah. [00:14:48] Speaker 03: Yeah. [00:14:50] Speaker 03: What's also happening here, and the reason we're here today is that, and this is an issue that was discussed in Monk, the one that dealt with the class action. [00:15:00] Speaker 01: Were you the counsel in Monk? [00:15:02] Speaker 03: No. [00:15:02] Speaker 03: Wow. [00:15:06] Speaker 03: Is that typically, and what we've done is we file a petition, there's an order to show cause, and then somebody in [00:15:15] Speaker 03: general counsel picks up the phone and calls someone at the regional office, and they get it taken care of. [00:15:21] Speaker 03: And so the writ becomes moot, because the relief sod has been granted. [00:15:27] Speaker 03: They've decided not to do that now. [00:15:28] Speaker 03: They're going to insist upon first come, first serve. [00:15:32] Speaker 03: And so that's why we're here, and that's why I have several other cases that have been stayed, pending the outcome of this case. [00:15:42] Speaker 01: OK. [00:15:43] Speaker 01: Any further questions? [00:15:43] Speaker 01: We'll give you two minutes for a bottle. [00:15:51] Speaker 01: Mr. Grimaldi. [00:16:01] Speaker 06: Good morning, Your Honor. [00:16:02] Speaker 06: Before I begin, I just wanted to thank the Court as well as Mr. E. Banks and his counsel for agreeing to postpone the matter earlier in September. [00:16:11] Speaker 06: I appreciate that greatly. [00:16:13] Speaker 04: Does the PGA have a plan? [00:16:15] Speaker 04: Because this delay is getting [00:16:17] Speaker 04: really, really long. [00:16:19] Speaker 04: I mean, I know this is beyond the record, but you have the board's statistics. [00:16:23] Speaker 04: I looked them up. [00:16:24] Speaker 04: The number of cases appealed to the board has almost doubled in four years. [00:16:28] Speaker 04: The time for a hearing has gone from 2.5 to almost four years. [00:16:32] Speaker 04: At some point, even if it's not out of the ordinary, mandamus becomes appropriate. [00:16:38] Speaker 04: Does it not? [00:16:40] Speaker 04: Certainly, at some point, mandamus can be inappropriate. [00:16:42] Speaker 04: When is it? [00:16:42] Speaker 04: Is it four years? [00:16:44] Speaker 04: Is it five years? [00:16:45] Speaker 04: Is it 10 years? [00:16:46] Speaker 04: I mean, it's certainly 10 years, right? [00:16:48] Speaker 04: If you're taking 10 years to give a veteran who's seeking benefits 10 years, then the court's going to step in. [00:16:56] Speaker 06: I think that would be a lot easier situation for the court to find that under Costanza that there has been unreasonable delay. [00:17:02] Speaker 01: Has there ever been a writ of mandamus issued to the VA with respect to the hearing time? [00:17:13] Speaker 06: The pure length of delay, Your Honor, is that what you're asking about? [00:17:16] Speaker 06: Because I'm aware of the Roboto case where a writ was granted because the VA had decided to stay all pending board hearings for the outcome of the Haas case. [00:17:31] Speaker 01: No, no, let's skip that. [00:17:34] Speaker 01: Based on delay, has the Veterans Court ever issued a writ of mandamus directing the VA to act promptly? [00:17:44] Speaker 06: I'm not sure one was cited by the parties your honor. [00:17:48] Speaker 06: So I don't think I'm aware of that We are aware of that for Costanza has been not only is when you submit your Letter on the mootness issue. [00:17:59] Speaker 01: Would you please include in that? [00:18:02] Speaker 01: information on that point whether the VA has Whether the CABC has ever [00:18:09] Speaker 01: issued a writ of mandamus because of delay and don't confine yourself just to the hearing question, but to delay generally in the, in the adjudication process. [00:18:17] Speaker 06: As you're asking about pure timeliness of the... Pure timeliness. [00:18:21] Speaker 01: But it would appear from your comment, if this has never happened, that the standard that the Veterans Court is applying is a very restrictive standard, which basically means there's never going to be relief under these circumstances. [00:18:38] Speaker 06: Well, Your Honor, I think a lot of what is going on with the timing, and to go back to the questions Your Honor was asking, what is the cause of the delays? [00:18:47] Speaker 06: What's going on? [00:18:48] Speaker 06: Why is the Department of Veterans Affairs different than the other agencies that the DC Circuit is evaluating administrative action underneath? [00:18:57] Speaker 06: Is that there is a lack of resources at the VA right now. [00:19:00] Speaker 01: But there's testimony cited in the briefs that there's no resources problem. [00:19:05] Speaker 06: Actually, there's newer testimony now that I'm going to point to, Your Honors, because I'm sure Your Honors are aware of the Veterans Appeals Improvements Modernization Act that was just passed by Congress. [00:19:17] Speaker 06: And there's a very helpful House report. [00:19:19] Speaker 06: This is House Report 115-135 from this year. [00:19:25] Speaker 06: Basically, what we have had in the past was a backlog of claims before the RROs. [00:19:31] Speaker 06: The Department of Veterans Affairs took steps to alleviate that backlog and push them forward. [00:19:38] Speaker 06: What that backlog has caused now is a backlog of board appeals because a lot of those RO decisions have been appealed. [00:19:46] Speaker 06: The House report notes that the increase of appeals is now at 470,000 appeals as of March 31st, 2017. [00:19:58] Speaker 06: Along with this House report that I think is very helpful, [00:20:01] Speaker 06: There is a GAO report discussing the implementation of the changes that will be made in the Modernization Act. [00:20:07] Speaker 06: And that is from March 23rd, 2017. [00:20:09] Speaker 06: And if Your Honors would like me to attach the GAO report and this House report to the back of our submission, we can do that as an appendix. [00:20:18] Speaker 01: Why don't you do that? [00:20:19] Speaker 01: But what is the solution to this problem that is being implemented? [00:20:26] Speaker 06: So what the Modernization Act is, and I would just like to point out that [00:20:31] Speaker 06: What's going on with Modernization Act is that Congress has stepped in and is trying to resolve this issue. [00:20:36] Speaker 06: We do believe that Mr. E. Banks is trying to make policy through a writ of mandamus, which this court has found to be inappropriate. [00:20:42] Speaker 01: I don't think you're making policy when you're saying that there's undue delay. [00:20:47] Speaker 01: There's a right to have the thing. [00:20:49] Speaker 01: No, of course not. [00:20:51] Speaker 01: Of course not. [00:20:52] Speaker 01: Absolutely, Your Honor. [00:20:53] Speaker 01: That's not our policy. [00:20:54] Speaker 01: That's the policy inherent in the statute and the administrative procedure. [00:20:58] Speaker 06: Within Mr. E. Banks' arguments against the incompetence and utter indifference of the VA, he does have a cognizable claim to foot its quarter. [00:21:06] Speaker 00: At some point, the delay can get to the point where it's presumptively unreasonable, even under the Costanza test. [00:21:15] Speaker 06: But yeah, so a delay can certainly be unreasonable under the Costanza test, Your Honors. [00:21:18] Speaker 04: Yes. [00:21:19] Speaker 04: But what is the answer to solving it? [00:21:21] Speaker 04: Is the VA asking for more resources? [00:21:23] Speaker 04: Are they getting more board judges? [00:21:25] Speaker 04: Are they doing something to streamline procedures so that it doesn't take four years to get a hearing? [00:21:30] Speaker 04: Is it in that statute? [00:21:31] Speaker 06: What's going on is that at the RO level, an individual is going to have three different options as to how to proceed once they get a decision that is not in their favor. [00:21:41] Speaker 06: One would be to jump straight to the board. [00:21:44] Speaker 06: Another one would be to go through the normal process of having a higher level RO person take a look at the claim. [00:21:52] Speaker 06: Another one would be to submit a supplemental claim with new evidence to support your actual previous claim. [00:21:59] Speaker 06: Congress hopes, and this will be implemented over time. [00:22:02] Speaker 01: How's that going to help speed things up at the board level? [00:22:06] Speaker 01: Let's say from the time that there's a statement of the case to the time the board resolves the claim. [00:22:14] Speaker 06: Well, Your Honor, hopefully it will resolve more cases at the RO level so less will be going up to the board to begin with. [00:22:23] Speaker 06: That's one of the possibilities. [00:22:24] Speaker 06: But it's not going to do anything for the cases that are already at the board. [00:22:30] Speaker 04: No. [00:22:31] Speaker 04: The VA, why isn't the VA asking for more board judges? [00:22:37] Speaker 04: That is not on the record. [00:22:38] Speaker 06: I'm not aware of that, Your Honor. [00:22:39] Speaker 01: How many are there now? [00:22:41] Speaker 06: I'm not aware of any more than the 63 that your honor mentioned. [00:22:45] Speaker 06: And how many cases are there pending at the board? [00:22:48] Speaker 06: There are 470,000 appeals as of March 31st, 2017 that's listed in the House report. [00:22:55] Speaker 04: I mean, how can the board leadership think it can confidently do its job when there are 400,000 cases for 60 judges? [00:23:04] Speaker 04: How many decisions a year does that mean they have to get through? [00:23:08] Speaker 06: I'm not sure of the actual number. [00:23:11] Speaker 06: That would be more math than I can do in my head, Your Honor. [00:23:14] Speaker 06: But certainly this is a monumental task to clear the backlog of the board. [00:23:20] Speaker 01: Well, it sounds as though from the statistics that you yourself are quoting that the delays that exist are not going to be less in the future. [00:23:28] Speaker 01: They're going to be more because the caseload for the board has increased. [00:23:33] Speaker 06: Well, the caseload is increased because of the clearing of the backlog at the regional offices, Your Honor. [00:23:38] Speaker 06: So hopefully, with the implementation of the Veterans Appeals Improvement Modernization Act, we'll have less cases actually going from the RO to the board, because they'll be resolved in a manner that the veteran is pleased with at the RO. [00:23:53] Speaker 06: So we'll have less appeals, and then we'll have less of a backlog in the future, because less cases will be going up. [00:23:59] Speaker 01: There's a matter of statistics, even assuming that there are no further appeals to the board, none. [00:24:07] Speaker 01: How long would it take the board to resolve the cases, the 400,000 cases that it now has before? [00:24:13] Speaker 06: Well, I mean, that's a difficult question. [00:24:15] Speaker 06: A long time, Your Honor, and I can't really come up with an estimate because each case... Years, right? [00:24:20] Speaker 06: Yeah, it would take years. [00:24:21] Speaker 06: Each case has its own unique fact patterns, and some might require remand. [00:24:26] Speaker 06: The board might take a look at it and say, this needs to go back. [00:24:28] Speaker 06: Now, that might be considered to be resolving it, but that case would still technically be alive. [00:24:33] Speaker 06: So it will take time to clear this backlog. [00:24:35] Speaker 04: And there's no, I mean, do we have any hope that the four-year time to get a hearing is not going to go up? [00:24:42] Speaker 04: It's going to come down in the near future? [00:24:44] Speaker 04: Well, it is. [00:24:44] Speaker 04: It seems to me it's going to go up. [00:24:46] Speaker 06: That's a possibility that it could go up, Your Honor. [00:24:48] Speaker 06: It's not four years right now. [00:24:49] Speaker 06: Mr. E. Banks asked in 2014, he received it. [00:24:52] Speaker 06: December 2014, received his in October of 2017. [00:24:55] Speaker 06: Three years, not great, Your Honor. [00:24:57] Speaker 06: I'm not sure I'm going to tell you [00:24:58] Speaker 06: three years is much better than four. [00:25:00] Speaker 04: So it has gone down then? [00:25:01] Speaker 04: I mean, again, I pulled statistics from the board things and it was close to four. [00:25:07] Speaker 06: Is it four years to resolve it or four years for the hearing? [00:25:09] Speaker 04: Four years to the hearing. [00:25:11] Speaker 06: Okay, yeah. [00:25:11] Speaker 04: No, I'm actually not aware of it. [00:25:12] Speaker 04: Well, I might be looking at... No, that's what my chart says. [00:25:14] Speaker 04: It could be wrong. [00:25:15] Speaker 04: You can give us all these statistics in your reply. [00:25:19] Speaker 04: I mean, the problem here is [00:25:22] Speaker 04: In a particular mandamus case, you're going to come in and argue, well, he's being treated the same as everybody else. [00:25:27] Speaker 04: But at some point, that treatment of everybody has to be subject to judicial review, doesn't it? [00:25:33] Speaker 04: Oh, absolutely, your honor. [00:25:34] Speaker 04: And who else? [00:25:37] Speaker 04: I mean, it's an odd posture for an appellate court to be doing that, but who else can do it? [00:25:41] Speaker 04: They filed cases in district court. [00:25:44] Speaker 04: They got granted a class action four or five years ago, I think in California or [00:25:49] Speaker 04: somewhere out west, and the secretary of the Department of Justice got that case quashed because it said the veterans court and our court were the only avenue for judicial review. [00:26:01] Speaker 06: Yes, Your Honor, and it's the secretary's position that Congress is in a perfect position to take care of the back... Sure. [00:26:09] Speaker 04: Yeah, absolutely. [00:26:10] Speaker 04: But there's a dividing line between [00:26:12] Speaker 04: policy questions, an unreasonable delay that is so long that the court has to take action. [00:26:17] Speaker 06: Correct. [00:26:18] Speaker 06: And it seems you're getting pretty close to that line. [00:26:22] Speaker 06: Duly noted, Your Honor, I think that at this point, what's interesting about the E-Banks case and what has happened with it is during the pendency of the E-Banks case, we did have a passing of this new modernization act. [00:26:33] Speaker 01: But if I understand correctly, [00:26:35] Speaker 01: that the new act does nothing to alleviate the problem of delay at the board other than reducing the number of cases coming from the RO. [00:26:45] Speaker 01: There's no provision for additional board judges, no provision for additional resources to the board. [00:26:51] Speaker 01: Am I correct about that? [00:26:52] Speaker 06: I think you are, Your Honor. [00:26:53] Speaker 06: I'm not aware of any. [00:26:54] Speaker 06: If there are, we certainly will point that out in our next submission. [00:26:58] Speaker 01: Why is it that the VA didn't ask for more resources at the board level? [00:27:04] Speaker 06: I'm not sure if VA asked or not, but I do not believe that they are in the act the way the Congress has framed it. [00:27:13] Speaker 06: The Congress has focused more on the initial claims of the individuals at the RO level and alleviating. [00:27:21] Speaker 06: If you look at it, it's a bubble, Your Honor. [00:27:23] Speaker 06: There's a bubble at the bottom, and it gets pushed because the backlog is clear. [00:27:26] Speaker 06: A bubble gets created in the middle where the board is. [00:27:30] Speaker 06: What Congress is trying to do is stop there from being a bubble at the beginning. [00:27:33] Speaker 06: So there's not pushed up and affects the board, the veterans court. [00:27:39] Speaker 01: I mean, you know, I understand that that's desirable, but that doesn't resolve the problem of delays. [00:27:46] Speaker 01: Even with the existing 400,000 cases at the board level, it does nothing to alleviate that problem, right? [00:27:53] Speaker 06: Chances are that those individuals will not directly benefit from, um, [00:27:59] Speaker 06: the Modernization Act, if they are successful and get remanded to the RO, perhaps then at that situation. [00:28:05] Speaker 06: But that's only after they've had the hearing, to be honest with you, Your Honor. [00:28:08] Speaker 00: I want to ask you about your interpretation of how the Costanza arbitrary refusal to act test is implemented. [00:28:19] Speaker 00: Is it your position that if the government says, if the board says, well, [00:28:27] Speaker 00: We'll get around to your appeal as soon as we can. [00:28:32] Speaker 00: We hear your cases on a first come first basis. [00:28:34] Speaker 00: We have a huge backlog. [00:28:36] Speaker 00: And we'll get around to it as soon as we can. [00:28:40] Speaker 00: That that satisfies the Costanza test. [00:28:44] Speaker 06: Well, that is what the board found here, Your Honor. [00:28:46] Speaker 00: Even if that means that there won't be a hearing for five years or 10 years? [00:28:53] Speaker 06: Well, Your Honor, I mean, that's certainly at a certain point. [00:28:56] Speaker 06: There can be difficulties with with withstanding the Costanza test if that first come first serve basis looks really like it just never comes. [00:29:04] Speaker 00: What's the relationship between this just first come first serve and any notion of reasonableness? [00:29:12] Speaker 06: Well, I mean, just waiting in line, Your Honor. [00:29:14] Speaker 06: I mean, that's pretty reasonable. [00:29:15] Speaker 06: Most things, the first person to file gets to hear how their case heard first and so on and so forth. [00:29:21] Speaker 00: I mean, you go back to basics. [00:29:23] Speaker 00: Justice delayed is justice denied. [00:29:26] Speaker 00: And at some point, the veteran is going to say, yeah, they first come first serve, but I can't wait 10 years. [00:29:35] Speaker 06: Absolutely. [00:29:35] Speaker 06: And hopefully, before we ever get to a point, there will be some sort of administrative [00:29:39] Speaker 01: or uh... congressional fixed any problem that was all speculative there's no plan right that's correct or but if we're looking at the cases before us right now we have was we have a three-year wait which is a long time honestly your honors but that that hearing has occurred so we're not talking about suppose we issued a writ of mandamus directing that uh... uh... these cases uh... either in this case or some other case that these these cases at the board level [00:30:09] Speaker 01: grant a hearing within six months after the filing of the statement of the case. [00:30:16] Speaker 01: What would the VA do? [00:30:18] Speaker 06: I think the VA would be overwhelmed. [00:30:20] Speaker 06: I don't think it has the resources to undertake such a monumental task, Your Honor. [00:30:24] Speaker 06: I mean, the three-year wait is not because the judges are sitting on their hands. [00:30:29] Speaker 06: They have a backlog that they're handling. [00:30:31] Speaker 04: I think that... No, I mean, we're not faulting the judges. [00:30:35] Speaker 04: Oh, absolutely. [00:30:36] Speaker 04: I mean, the judges do their job. [00:30:38] Speaker 04: They hear a lot of cases. [00:30:40] Speaker 04: But this low number of board judges has been around for years. [00:30:46] Speaker 04: And the VA has not sought to increase the board in any substantial way for a long time. [00:30:53] Speaker 04: And they know this problem. [00:30:54] Speaker 04: They've always known this problem. [00:30:57] Speaker 04: The delays at the board have been almost inexcusable for way too long. [00:31:03] Speaker 04: And yet, you're coming here [00:31:05] Speaker 04: And again, I'm not fooling you, but I'm frustrated that the VA has no plans to deal with the problems at the board now. [00:31:12] Speaker 04: Their plans are, let's solve the problem for future cases where they have this, as you say, a huge bubble at the board now. [00:31:19] Speaker 04: That bubble isn't going to get any better at the board, and it's going to pass on to the Veterans Court and to us eventually. [00:31:26] Speaker 06: Yes, Your Honor. [00:31:28] Speaker 06: I would categorize the VA's plan as a long game, trying to cut down on this. [00:31:33] Speaker 06: I think my time is up. [00:31:35] Speaker 06: If the court would like me to mention anything about mootness, I could have a quick statement. [00:31:39] Speaker 01: Yeah, I would. [00:31:40] Speaker 01: But let me ask one last question on what we've been talking about. [00:31:44] Speaker 01: What's the status of the monk case? [00:31:47] Speaker 01: Is the mandate issued in that? [00:31:48] Speaker 06: Honestly, Your Honor, I'm not aware of the status of monk case. [00:31:53] Speaker 06: I apologize. [00:31:54] Speaker 01: Could you put that in your supplemental filing also? [00:31:59] Speaker 01: And given the fact that we've expanded the scope of what you're supposed to address, we'll give each side 10 pages. [00:32:05] Speaker 06: Thank you. [00:32:05] Speaker 06: I was trying to get worried there, Your Honor. [00:32:08] Speaker 06: Speaking of Monk, Your Honor, Monk does address mootness, and I think it's applicable here. [00:32:15] Speaker 06: Monk said that if a veteran receives full relief, they no longer have a legally cognizable interest. [00:32:22] Speaker 01: What about Mr. Lippmann's argument that this is capable of repetition, yet evading review? [00:32:27] Speaker 01: because there is a possibility that Mr. Umich himself will face further delay as his case works through the system if there's a remand by the board and an adverse decision at the RO. [00:32:40] Speaker 06: Sure, Your Honor. [00:32:40] Speaker 06: I would say two things to that. [00:32:41] Speaker 06: First, that this Court has already addressed this issue. [00:32:44] Speaker 06: I'll be in an unpublished decision in 2007 called Jenkins. [00:32:48] Speaker 06: That's 216, Fed Appendix 989. [00:32:52] Speaker 06: That's a situation where the writ of mandamus was stating that the delays in processing the claim overall were taking too long. [00:33:00] Speaker 06: During the pendency of the appeal before this court, Mr. Jenkins did receive benefits, so his claim was processed. [00:33:08] Speaker 06: The secretary moved to dismiss the Stefan Muteness. [00:33:11] Speaker 06: Mr. Jenkins opposed it with a similar argument saying that he had disagreements with the benefits that he did receive, so he wanted to continue his case. [00:33:19] Speaker 06: This court found that the case would still move even though there was a possibility that he would be going to VA to deal further with his claim because there was regular appellate procedures to deal with that. [00:33:31] Speaker 01: And similarly along that line, perhaps it's all just one point, is that if Mr. Well, I'm not sure that that's an answer to this because the appellate procedure would be to seeking review on the undue delay theory. [00:33:45] Speaker 01: It would be the same issue. [00:33:48] Speaker 06: Right. [00:33:49] Speaker 06: And perhaps maybe I didn't use appellate wouldn't have been the right word to use. [00:33:54] Speaker 06: There are further procedures that he could follow if he disagreed with his VA. [00:33:58] Speaker 06: Such as? [00:33:59] Speaker 06: Well, such as, and I'll tie this into Mr. Ebanks' case, there are administrative procedures to accelerate your hearing date and accelerate the consideration of your claim, procedures that Mr. Ebanks didn't follow. [00:34:14] Speaker 06: That would be 38 CFR 20.900C. [00:34:18] Speaker 06: which allows a veteran to request advancement of their document based upon severe financial hardship, Mr. Support. [00:34:25] Speaker 00: He may not qualify. [00:34:27] Speaker 06: Well, Mr. E. Banks, he might not. [00:34:29] Speaker 06: We don't know. [00:34:29] Speaker 06: But Mr. E. Banks did allege that he was under dire financial hardship. [00:34:33] Speaker 06: So at least he believes that there is an argument there to make. [00:34:37] Speaker 06: We could speculate that he believes there's an argument there to be made. [00:34:40] Speaker 01: Well, putting that to one side, does the fact that he might get a remand [00:34:48] Speaker 01: might be delayed, might be an adverse decision by the RRO, might have to ask for a hearing at the Booker, is that sufficient to satisfy the capable of repetition standard? [00:35:00] Speaker 06: Well, it's highly speculative, so we would disagree, Your Honor, and also we would argue there would be a different appeal. [00:35:05] Speaker 01: Why don't you collect the cases on that, apart from the one non-precedential decision that you mentioned, particularly from the Supreme Court and other circuits that we [00:35:18] Speaker 01: have some sense of what has the law developed here generally? [00:35:22] Speaker 01: Of course, Your Honor. [00:35:24] Speaker 06: Thank you very much, Your Honor. [00:35:30] Speaker 03: OK, thank you. [00:35:30] Speaker 03: Mr. Ludman? [00:35:33] Speaker 03: If the court would just indulge me, quickly, yourself, judges, on the interim benefits, just that part, [00:35:44] Speaker 03: I don't believe that would be waived because it would have been premature to raise it. [00:35:48] Speaker 03: In other words, you don't get to those type of relief until you prove that there's been an unreasonable delay in the threshold. [00:35:56] Speaker 03: So if I just might, since there's 10 pages now allowed, if I could just maybe at the second half just address it. [00:36:05] Speaker 03: Because this case is so important. [00:36:09] Speaker 03: I just hate to see it go away on a mootness issue. [00:36:11] Speaker 03: I've got several cases. [00:36:14] Speaker 03: pending. [00:36:15] Speaker 03: And I'm sure that by the time if this case is mooted and by the time you lift the stay and then we go forward, we're looking at another six, seven months. [00:36:24] Speaker 03: They'll have hearings. [00:36:25] Speaker 03: And this is a big problem of these mootness going away. [00:36:30] Speaker 03: I mean, the time frame is just not suitable to get this case or this issue addressed. [00:36:40] Speaker 04: It doesn't matter to me. [00:36:42] Speaker 04: You can use your pages however you see fit, but it's not a particularly compelling argument in my view. [00:36:48] Speaker 01: You can address it if you want to, but I think you ought to be reading the tea leaves. [00:36:54] Speaker 00: Not a compelling argument from my perspective either. [00:36:58] Speaker 03: Your call. [00:36:58] Speaker 03: I appreciate your thoughts on that. [00:37:03] Speaker 03: Just one other thing. [00:37:05] Speaker 03: Council has mentioned that there's this new modernization act that's going to take some of the relief. [00:37:12] Speaker 03: I'm just wondering why that wasn't mentioned in the brief. [00:37:15] Speaker 03: If that feels that that's going to save the day. [00:37:17] Speaker 01: Well, I think they're not saying that it's going to solve the problem at the board level other than by reducing the number of cases in the future that come to the board. [00:37:27] Speaker 01: And they have pretty much admitted that it's not going to solve the [00:37:32] Speaker 01: tremendous backlog problem exists with respect to the 400,000 pending cases. [00:37:39] Speaker 00: In your experience, has this backlog problem been a long-standing issue or is it something that has sort of evolved over time? [00:37:51] Speaker 00: It's gotten worse. [00:37:52] Speaker 03: It's not something new. [00:37:54] Speaker 03: I've been filing writs for timeliness for a long time. [00:37:57] Speaker 01: Have you ever gotten one granted? [00:38:02] Speaker 03: And part of the reason is that it never gets decided that way because what's happening, again, and Monk talks about it, is that when you file a writ, up until now, what the VA has been doing is calling, you file the writ, the veterans... Taking out of turn. [00:38:24] Speaker 01: Pardon? [00:38:24] Speaker 01: Solving the problem in the individual case by taking that particular veteran out of turn. [00:38:29] Speaker 03: Right. [00:38:30] Speaker 03: And the court issues an order of cause. [00:38:33] Speaker 03: They call up the regional office. [00:38:35] Speaker 03: All of a sudden, miracles happen, and the case gets mooted. [00:38:39] Speaker 04: What do you think would happen to the board if this court ordered that all hearings had to be conducted within, I'm going to give them a year, not six months, and we gave them a year to reach that goal? [00:38:54] Speaker 04: They would do it. [00:38:56] Speaker 04: See, that's the way they've been operating. [00:38:57] Speaker 04: How do you think they can do it with 60 judges? [00:38:59] Speaker 01: Well, they immediately hire judges. [00:39:01] Speaker 01: Well, do they have the resources to do it? [00:39:03] Speaker 01: Can they achieve that through fund reprogramming? [00:39:08] Speaker 01: Do the resources exist? [00:39:10] Speaker 01: Those are relevant considerations under the mandamus standard in the D.C. [00:39:16] Speaker 01: Circuit, and we don't know what the facts are. [00:39:20] Speaker 03: When you say that's a good point, we don't know what the facts are. [00:39:22] Speaker 03: And I think the importance of track, as opposed to Costanza, is it gives some transparency in this analysis. [00:39:27] Speaker 03: In other words, it may well be that if you remand this case and the Veterans Court says, OK, let's go through some of the factors, you say you have limited resources, show me. [00:39:41] Speaker 03: Make it showing, saying we just can't do it, can't meet the standard. [00:39:45] Speaker 03: Maybe we had the funds to begin with, we squandered it. [00:39:49] Speaker 03: We're sorry, but humanly possible can't take it. [00:39:52] Speaker 03: We can't do anything about it. [00:39:53] Speaker 01: But I would just like to see... Isn't the VA restricted also in terms of employment slots? [00:40:04] Speaker 01: Isn't that fixed by Congress? [00:40:06] Speaker 03: They can go to Congress. [00:40:07] Speaker 03: I mean, I don't know the answer to that question, but they're not shy about asking for money and things from Congress. [00:40:11] Speaker 04: Well, I'm sure that the board judges are [00:40:14] Speaker 04: line items and appropriation and they're capped at some level. [00:40:17] Speaker 04: I don't think they can just reprogram money and double the size of the board. [00:40:21] Speaker 04: The other problem is if they have to double the size of the board in a year, [00:40:29] Speaker 04: are they going to find enough competent people to actually be good board judges? [00:40:34] Speaker 04: Or are you just creating another problem, which is you get a lot of faulty board decisions, which you then have to appeal to the Veterans Court, which doubles their workload, and they have to go out and get more judges? [00:40:46] Speaker 03: Fair enough argument. [00:40:47] Speaker 03: But those arguments, to me, should be made under the track [00:40:50] Speaker 03: the track analysis. [00:40:52] Speaker 04: I mean, the problem with it, and to me, the standard, I do find the standard that the defense court's applying a little bit restrictive, but it's not so much the standard, but it's an intractable problem, I can't say that word, of resource allocations and how the VA is doing this. [00:41:09] Speaker 04: And it's a hard line between us stepping in and exercising our judicial authority and us dictating how the secretary should run the department. [00:41:19] Speaker 03: Sure. [00:41:20] Speaker 03: There's a point where the judiciary crosses the line and is doing the executive's job. [00:41:25] Speaker 03: But it seems to me Congress has stated what the role is for the judiciary, and that is to shall compel agency action that's been unreasonably delayed. [00:41:40] Speaker 03: That's pretty strong language. [00:41:42] Speaker 03: It's not the Veterans Court may compel. [00:41:47] Speaker 03: It shall compel. [00:41:48] Speaker 01: Yeah, but the problem is there are quite a few cases suggesting that if the agency doesn't have the resources to comply, that you can't order them to do something that they're unable to do. [00:42:01] Speaker 03: Well, if it's humanly impossible, if they can't do it, I would like to at least have a showing. [00:42:08] Speaker 03: I mean, that's fair. [00:42:09] Speaker 03: I mean, that's what TRAC says. [00:42:10] Speaker 03: Fair, okay. [00:42:12] Speaker 03: You don't have the resources, maybe you use your resources unwisely, something to think, [00:42:18] Speaker 03: I would still like to see some transparency to their... Okay, well, I think we're out of time. [00:42:26] Speaker 01: Some of this can be addressed in the supplemental briefing. [00:42:28] Speaker 01: Thank both counsel and cases. [00:42:31] Speaker 01: That concludes our session for this morning. [00:42:48] Speaker 05: A lot of course is going from day to day.