[00:00:00] Speaker 07:
versus Wilkie, and the second case is 171762, Rose versus Wilkie.

[00:00:06] Speaker 07:
Unless you have some strong reason to oppose this, the panel has discussed it, and thinks that we really should just combine these arguments, allowing 30 minutes on each side, because there is clearly an overlap between the issues, and the parties are the same.

[00:00:19] Speaker 07:
So we're going to proceed with a 30-minute calendar of 30 minutes, and combine the argument on the two cases.

[00:00:26] Speaker 07:
Correct?

[00:00:27] Speaker 07:
Good?

[00:00:28] Speaker 07:
All right.

[00:00:28] Speaker 07:
Mr. Chandler, whenever you're ready.

[00:00:33] Speaker 02:
Thank you, Your Honor.

[00:00:35] Speaker 02:
My name is John Chandler.

[00:00:41] Speaker 02:
And may it please the Court, the veterans we represent who were injured while serving our country have run into an insurmountable enemy.

[00:00:54] Speaker 02:
They have already experienced two and a half to seven years

[00:01:02] Speaker 02:
in the appeals from their denials of veteran benefits.

[00:01:08] Speaker 02:
That's time already spent in the process.

[00:01:12] Speaker 02:
This is the 30th anniversary of this Court's jurisdiction over the Veterans Court.

[00:01:21] Speaker 07:
Well, do you agree that if they've already achieved the relief that they sought, I understand that necessarily when we've got a mandamus petition that has to go through the system, there's necessarily a delay.

[00:01:32] Speaker 07:
But as you know well, in the interim, it appears, at least from the submissions of the parties, that some of the appellants have received the relief requested.

[00:01:42] Speaker 07:
And therefore, why aren't those moved?

[00:01:47] Speaker 02:
Your Honor, we started with 17 petitioners.

[00:01:54] Speaker 02:
The secretary gave full relief to four of them.

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

[00:02:00] Speaker 02:
And they didn't appeal.

[00:02:01] Speaker 02:
And they did not appeal.

[00:02:08] Speaker 02:
Four of our veterans have died while we're in this appellate process.

[00:02:13] Speaker 02:
And of course, their cases are gone because they don't have spouses.

[00:02:22] Speaker 02:
None of the rest of the veterans have gotten what they asked for.

[00:02:28] Speaker 02:
The closest, Your Honor,

[00:02:31] Speaker 02:
is Miss Cyphers.

[00:02:34] Speaker 02:
Miss Cyphers, who had been in the appellate process for a number of years, asked for benefits going back to 2002.

[00:02:49] Speaker 02:
She got them going back, and I may be wrong on the date, to 2012.

[00:02:54] Speaker 07:
But isn't there a difference between whether she

[00:02:57] Speaker 07:
I mean, this mandamus petition is based on the unreasonable delays of seeking relief, not the merits question of whether or not she got the relief that she sought.

[00:03:07] Speaker 02:
Absolutely.

[00:03:07] Speaker 02:
We are not challenging.

[00:03:08] Speaker 07:
So she's had her claim adjudicated.

[00:03:11] Speaker 02:
Her claim is not adjudicated because the secretary sent her back to the beginning of the line when she got those benefits.

[00:03:22] Speaker 02:
She has now filed a notice of disagreement with respect to those.

[00:03:27] Speaker 02:
And this 78-year-old woman is facing seven more years.

[00:03:32] Speaker 02:
They gave her one quarter of what she asked for, seven more years to get to three quarters.

[00:03:38] Speaker 07:
That is why.

[00:03:38] Speaker 07:
I understand that you understand my point that that's sort of different than what you're alleging.

[00:03:43] Speaker 07:
I mean, they have now processed her claim.

[00:03:46] Speaker 07:
And now, yes, because she didn't achieve the relief she sought, she's got to try to re-adjudicate that.

[00:03:53] Speaker 07:
But that's a little different than what she was alleging in the first instance, right?

[00:03:56] Speaker 07:
I mean, I don't want to spend too much time on any particular person, but do you understand the point?

[00:04:01] Speaker 02:
Yes, Your Honor.

[00:04:01] Speaker 02:
Understood.

[00:04:02] Speaker 02:
And I hope I'm answering your question.

[00:04:04] Speaker 02:
She is in the appellate process.

[00:04:06] Speaker 02:
She has filed a notice of disagreement with what happened.

[00:04:10] Speaker 07:
And how long has that been pending?

[00:04:12] Speaker 02:
That has, that was filed in the last few weeks.

[00:04:16] Speaker 07:
Well, I actually thought she filed hers.

[00:04:19] Speaker 07:
My notes indicated she filed her notice of disagreement in November 2017, but she has received a statement of the case, and now she's filed her Form 9.

[00:04:29] Speaker 07:
So she's in the system, not on a disagreement, but on certification to the BBA, that her claim has been processed that far.

[00:04:36] Speaker 02:
Your Honor, my hearing is not good.

[00:04:39] Speaker 02:
I'm very sorry.

[00:04:40] Speaker 02:
I was in the artillery.

[00:04:42] Speaker 07:
Forget it.

[00:04:43] Speaker 07:
That's way into the weeds.

[00:04:44] Speaker 07:
Why don't you proceed with your argument?

[00:04:46] Speaker 02:
Okay.

[00:04:47] Speaker 06:
Can I ask you for some specific information?

[00:04:49] Speaker 06:
Yes, Your Honor.

[00:04:51] Speaker 06:
So, I am looking in particular at the supplemental material that we asked you to submit.

[00:04:56] Speaker 06:
Do you have that handy so you can look at it at the same time?

[00:04:59] Speaker 02:
I have it right here.

[00:05:01] Speaker 06:
I sure do.

[00:05:01] Speaker 06:
Okay.

[00:05:02] Speaker 06:
So, let's take Mr. Martin, for example.

[00:05:06] Speaker 06:
Yes, Your Honor.

[00:05:08] Speaker 06:
I'm looking at page three of that table.

[00:05:10] Speaker 06:
I've got it.

[00:05:11] Speaker 06:
So he filed his Notice of Disagreement in December of 2013, and he got his Statement of the Case, which is a resolution of his Notice of Agreement, in December of 2015, correct?

[00:05:24] Speaker 06:
That's correct.

[00:05:25] Speaker 06:
Then he filed his Form 9 appeal.

[00:05:30] Speaker 06:
Now, form.

[00:05:30] Speaker 06:
Now, my understanding is this is just the form the veteran files saying, I want to appeal.

[00:05:36] Speaker 06:
and on average it takes veterans 39 days to do that they have up to 60 days in order to file such a notice of appeal.

[00:05:43] Speaker 02:
That's correct Your Honor.

[00:05:44] Speaker 06:
Okay so the same month as he gets his answer he says no I want to appeal here's my appeal.

[00:05:49] Speaker 06:
Then it looks to me like his appeal was certified to the board within three months of when it was filed

[00:06:02] Speaker 06:
And that seems quite anomalous, because the statistics that you submitted suggest that the average time to certify is 537 days.

[00:06:12] Speaker 06:
Is that correct?

[00:06:14] Speaker 02:
That's correct.

[00:06:15] Speaker 06:
OK.

[00:06:15] Speaker 06:
So you're not, for example, in Mr. Martin's case, you're not saying the VA failed to promptly certify, because in his, they certified it like this, right?

[00:06:28] Speaker 06:
Yes, Your Honor.

[00:06:29] Speaker ?:
OK.

[00:06:30] Speaker 06:
Let me keep going.

[00:06:31] Speaker 02:
Keep going.

[00:06:32] Speaker 06:
So then he files, then nothing happens.

[00:06:35] Speaker 06:
So the next step is this certified appeal, which as I understand it is nothing more than you take the document that's already been generated, the statement of the case.

[00:06:47] Speaker 06:
You take the document that has already been generated, the notice of appeal by the veteran.

[00:06:52] Speaker 06:
And you fill out a couple of pages, which takes about two hours to fill out at maximum.

[00:06:59] Speaker 06:
that's all that's involved for certification is that correct that is correct okay so that occur then it's my understanding that he felt a mandamus petition september twenty six of two thousand sixteen which is seven months after it was certified

[00:07:15] Speaker 06:
But it looks to me like his appeal still has not even been docketed.

[00:07:21] Speaker 06:
Now, here in our court, docketing, it takes a matter of minutes.

[00:07:24] Speaker 06:
And so I don't know what docketing means for the board.

[00:07:27] Speaker 06:
And I'm hoping you're going to explain it to me.

[00:07:29] Speaker 06:
Because here at our court, we get a notice of appeal.

[00:07:31] Speaker 06:
And that appeal is docketed on the very same day.

[00:07:33] Speaker 06:
Because all it really amounts to is entering it into the electronic system.

[00:07:37] Speaker 06:
Here is an appeal.

[00:07:39] Speaker 06:
Here is the docketing.

[00:07:40] Speaker 06:
And then in short order, some briefing schedule will come out thereafter.

[00:07:45] Speaker 06:
So what is it that docketing an appeal to the BBA is?

[00:07:50] Speaker 06:
And how does it differ once the appeal's been certified?

[00:07:52] Speaker 06:
What does the government have to do to docket it?

[00:07:57] Speaker 02:
Let me answer that discrete question and then jump back just a little bit.

[00:08:03] Speaker 02:
That two-page form is a form A that the veteran doesn't even get.

[00:08:11] Speaker 02:
That goes with those

[00:08:14] Speaker 02:
already prepared things to.

[00:08:18] Speaker 06:
For me, this is possibly the most outrageous thing.

[00:08:21] Speaker 06:
It's something that should take two hours.

[00:08:23] Speaker 06:
It's documents that already exist and one two-page cover form that gets filled out, and it takes on average 537 days.

[00:08:30] Speaker 06:
Now, it didn't take that for Mr. Martin's case, so he can't personally complain about that.

[00:08:36] Speaker 06:
But I do want to know

[00:08:37] Speaker 06:
Go back to my question.

[00:08:39] Speaker 06:
What does it mean to be docketed?

[00:08:41] Speaker 06:
Why has his appeal not been docketed?

[00:08:43] Speaker 06:
So what does the board have to do to, quote, docket it?

[00:08:45] Speaker 02:
It's certified to the board.

[00:08:47] Speaker 06:
Yes.

[00:08:48] Speaker 02:
When the board gets around to it and the board is the final decision of the secretary, it is part of the VA.

[00:08:57] Speaker 02:
It is the second step of the process.

[00:09:00] Speaker 02:
The Board of Veterans' Appeals has to say, OK, now we're ready.

[00:09:06] Speaker 02:
to put it on our docket, which will then start a process of 321 days before we distribute it for decision to our judges.

[00:09:24] Speaker 02:
There is nothing in this record, nothing, that explains why it takes the secretary that long

[00:09:33] Speaker 02:
On average.

[00:09:34] Speaker 06:
I think I must still not understand, because let's just take Mr. Martin's case.

[00:09:39] Speaker 06:
Mr. Martin's case was certified to the board in February of 2016.

[00:09:44] Speaker 06:
Yes, Your Honor.

[00:09:46] Speaker 06:
He filed a mandamus petition saying, wake up people, nothing's happening with my case.

[00:09:51] Speaker 06:
In September of 2016, you would have thought that would have spurred the government into action, wouldn't you?

[00:09:56] Speaker 06:
A mandamus petition saying, you have my entire appeal.

[00:10:00] Speaker 06:
It's been certified to you.

[00:10:02] Speaker 06:
Seven months have gone by, and you haven't even so much as docketed it.

[00:10:07] Speaker 06:
I'm flabbergasted because I just am failing even to understand your answer.

[00:10:11] Speaker 06:
There must be something really complex involved in docketing.

[00:10:14] Speaker 02:
There's nothing complex.

[00:10:16] Speaker 06:
Because we are now, if I understand it, this is April 30th of 2018.

[00:10:21] Speaker 06:
So we're looking at two years and two months between when the appeal was certified, and yet despite a mandamus petition that was filed almost two years ago, it still hasn't been, quote, docketed.

[00:10:32] Speaker 06:
What am I missing?

[00:10:33] Speaker 07:
Can I just ask you a clarification?

[00:10:36] Speaker 02:
I couldn't agree with you more.

[00:10:37] Speaker 07:
Just so I understand where Judge Moore was a few minutes ago, like what is happening at each of these two steps?

[00:10:42] Speaker 07:
Am I correct that certification to the BVA, that box, that's kind of in control of the Veterans Administration, right?

[00:10:49] Speaker 07:
They're the ones, the actors in that.

[00:10:53] Speaker 07:
And let me just finish my question and then you can tell me.

[00:10:55] Speaker 07:
My understanding is that docketed by the BVA is what the BVA then does with it.

[00:11:01] Speaker 07:
Does that comport with your understanding of what's going on in these two?

[00:11:04] Speaker 02:
That is correct with one minor point.

[00:11:10] Speaker 02:
And that minor point is that the BVA is the secretary also.

[00:11:15] Speaker 02:
The Board of Veterans' Appeals

[00:11:17] Speaker 02:
makes the final decision for the secretary.

[00:11:20] Speaker 07:
Yeah, yeah, but it's a different entity on paper.

[00:11:22] Speaker 02:
Yes, it is.

[00:11:23] Speaker 02:
They have a different office over on I Street.

[00:11:25] Speaker 06:
Let me ask you their own.

[00:11:26] Speaker 06:
So I'm still trying to figure out what this document thing means.

[00:11:30] Speaker 06:
So does that mean literally typing into the electronic system, oh, we have this case now?

[00:11:35] Speaker 06:
Does it mean distributing it to particular judges who are going to decide it?

[00:11:39] Speaker 06:
What does it mean, and why is it taking so long?

[00:11:41] Speaker 02:
It's already at the Board of Veterans' Appeals

[00:11:46] Speaker 02:
It is already what you and I would call docketed at the Board of Veterans' Appeals.

[00:11:53] Speaker 06:
Is this the thing that, by the way, in the study from 2015, which appears at page 1408 of the Rose appendix, is this the thing that takes 222 days?

[00:12:02] Speaker 06:
It says 537 days to certify.

[00:12:06] Speaker 06:
Then it says 222 days for receipt of the certified appeal.

[00:12:11] Speaker 06:
That's the docket.

[00:12:12] Speaker 06:
That's the docket it?

[00:12:13] Speaker 02:
Yes, that's how you put it together to get 773 days.

[00:12:16] Speaker 06:
So on average, it takes 537 days to fill out a form.

[00:12:20] Speaker 06:
It takes two hours to fill out.

[00:12:22] Speaker 06:
And then it takes 222 days to then docket it, which takes our clerk's office, what, Ms.

[00:12:28] Speaker 06:
Jeffries, 30 minutes?

[00:12:30] Speaker 02:
30 minutes?

[00:12:36] Speaker 02:
I can only agree with you, but, Your Honor, it's already at the Board of Veterans' Appeals.

[00:12:41] Speaker 02:
The Board of Veterans' Appeals

[00:12:43] Speaker 02:
And this is not in the record, but I happen to know they send it out to American Legion, to the VFWS, hey, do you want to put anything in this before it comes back?

[00:12:54] Speaker 04:
Well, then they must have a team of people that hand copies it with a pen and paper, page by page, because what else could explain the 222 days it takes?

[00:13:01] Speaker 02:
Your Honor, you have put your finger right on the point

[00:13:08] Speaker 02:
that we have made continually, which is that this two-year delay from the time.

[00:13:15] Speaker 02:
This is a two-step appeal process, OK?

[00:13:19] Speaker 02:
Two-step appeal.

[00:13:21] Speaker 02:
You get a rating decision that's bad.

[00:13:24] Speaker 02:
You get a statement of a case that's still bad.

[00:13:26] Speaker 02:
And that takes about 500 days.

[00:13:28] Speaker 06:
Yeah, but time out.

[00:13:30] Speaker 06:
See, that's different.

[00:13:31] Speaker 06:
That's different because sometimes new evidence could be submitted.

[00:13:35] Speaker 06:
Sometimes there's a need for a medical examination.

[00:13:37] Speaker 06:
Absolutely.

[00:13:39] Speaker 06:
I can't look at an average for development of a case and resolution of that case.

[00:13:47] Speaker 06:
Because let me tell you, as appellate judges, we have some cases that take us no time at all to decide.

[00:13:52] Speaker 06:
And other cases, and we're not even building a record.

[00:13:54] Speaker 06:
We're accepting the record.

[00:13:55] Speaker 06:
Other cases that can take quite a long time

[00:13:58] Speaker 06:
for us to fully resolve.

[00:14:00] Speaker 06:
So I am sympathetic to the idea that not every case is the same from its initiation to a statement of the case.

[00:14:06] Speaker 06:
And evidence is developed and a duty to assist.

[00:14:09] Speaker 06:
So you don't actually have me at all if you focus on that aspect of this case.

[00:14:15] Speaker 02:
So I would suggest you don't.

[00:14:16] Speaker 02:
I was only going to contrast it, Your Honor.

[00:14:19] Speaker 02:
That first part, on average, takes 500 days.

[00:14:22] Speaker 02:
The rest of it, which is a year and a quarter,

[00:14:26] Speaker 02:
The rest of it, according to the Secretary now, takes five and a half years.

[00:14:32] Speaker 02:
Two of those years are made up of trying to get this form, this two-page form, to board.

[00:14:39] Speaker 07:
Let me move you along.

[00:14:40] Speaker 07:
I'm sure it will query the government on this.

[00:14:43] Speaker 07:
But one of the general issues presented in this case is whether the two standards, the different standards, the track standard and the standard standards.

[00:14:52] Speaker 07:
So I understand your position is that there's something

[00:14:55] Speaker 07:
significant distinction between the two standards.

[00:14:59] Speaker 07:
Do we have any examples with respect to these appellants or anyone else where the board has really articulated where that aspect of the standard which troubles you, and you may have a good point to the extent it's different than track and it arguably requires some intent and refusal, et cetera.

[00:15:18] Speaker 07:
But I couldn't find any cases where the board really applied

[00:15:23] Speaker 07:
or the CAVC, I'm sorry, applied that factor.

[00:15:27] Speaker 07:
In fact, I mean, there's one case.

[00:15:29] Speaker 07:
I know it's an older one.

[00:15:30] Speaker 07:
It precedes Costanz.

[00:15:32] Speaker 07:
But in that case, in that particular opinion, they applied the track stamp.

[00:15:36] Speaker 02:
Breyer, they did.

[00:15:37] Speaker 02:
Yes.

[00:15:37] Speaker 07:
So do you have an example, either any of these appellants?

[00:15:41] Speaker 07:
I know each of the CAV opinions, we've got one for each of these cases, and they're all sort of different.

[00:15:48] Speaker 07:
But is there any

[00:15:49] Speaker 07:
way that we could satisfy ourselves that in this particular circumstance, the CAVC applied the wrong standard because it's the difference, that aspect which differentiates the track standard from the Costanza standards is what the CAVC relied on in resolving the writ?

[00:16:05] Speaker 02:
Yes, Your Honor.

[00:16:07] Speaker 02:
In five of our, six of our cases, I should have that number in front of me, but I don't.

[00:16:13] Speaker 02:
Costanza is actually cited, and Costanza

[00:16:17] Speaker 02:
says, because you have not shown that the secretary has refused to act.

[00:16:27] Speaker 02:
And as soon as you file a mandamus petition, the secretary, except in Martin's case, moves you forward a little bit just to show that he's not refusing to act.

[00:16:38] Speaker 02:
And they say, that's the end of the story.

[00:16:41] Speaker 02:
I don't care if you want to argue that this violates due process, that

[00:16:47] Speaker 02:
All the cases that say that two, three, four years is too long, Costanza won't let you get there.

[00:16:56] Speaker 02:
They use it to block consideration of the due process argument because they say, well, that's mandamus, and that's our standard.

[00:17:07] Speaker 07:
Well, what about TRAC?

[00:17:08] Speaker 07:
Wouldn't it be the same?

[00:17:09] Speaker 07:
Let's assume the board, the CABC, use the TRAC standard.

[00:17:13] Speaker 02:
It would not be the same.

[00:17:16] Speaker 02:
And it would not be the same because Costanza takes in consideration only the interests of the secretary.

[00:17:25] Speaker 02:
When you get into track, two of the factors are, is this health and welfare type issue for your veteran?

[00:17:33] Speaker 02:
That's a good point for him or her.

[00:17:38] Speaker 02:
What is the nature of the claim?

[00:17:40] Speaker 02:
So Costanza just says to the secretary,

[00:17:44] Speaker 02:
You must be busy.

[00:17:46] Speaker 02:
Doesn't that pay any attention to what's going on with the veterans?

[00:17:50] Speaker 07:
Well, that factor certainly inners to the benefit of the veteran in every single case.

[00:17:54] Speaker 07:
So why can't we assume that that's just a background factor that exists in all these cases, right?

[00:18:00] Speaker 02:
Because it's never suggested, it's never used, it's never used

[00:18:04] Speaker 02:
In any way, except in the Spalmer, the 1990 case.

[00:18:07] Speaker 06:
Kagan It's your point, as I understand it.

[00:18:08] Speaker 06:
If the track factors were the ones used, it would be a factor considered, whereas under the Costanza factor, it's not a factor considered.

[00:18:16] Speaker 02:
That's right, Your Honor.

[00:18:17] Speaker 02:
If you put the Matthews factors on what is a violation of the Due Process Clause and the track factors together, they're virtually identical.

[00:18:26] Speaker 02:
They're virtually identical.

[00:18:27] Speaker 02:
Track is six factors.

[00:18:29] Speaker 02:
Matthews is three.

[00:18:32] Speaker 02:
But with Costanza, they never get there.

[00:18:34] Speaker 02:
Because they say the Secretary hadn't refused to die.

[00:18:37] Speaker 06:
Can I ask you another question, which is?

[00:18:38] Speaker 06:
Yes, ma'am.

[00:18:40] Speaker 06:
The four veterans who died during this whole process, so veterans' benefits are often medical-related, but other times they're disability payments, which are basically what the veteran needs to survive, to buy food, to put gas in the car.

[00:19:00] Speaker 06:
Yes.

[00:19:01] Speaker 06:
Is it correct?

[00:19:02] Speaker 06:
It's my understanding.

[00:19:03] Speaker 06:
that when a veteran dies, if his or her spouse has predeceased her, and if they have no minor children remaining, that even if they have a completely legitimate claim that pending for seven years before final resolution, they never get the relief.

[00:19:21] Speaker 06:
They get the medical.

[00:19:23] Speaker 06:
If there's out-of-pocket medical, but they will never get the disability payments, which amount to basically their living, their funds necessary for living.

[00:19:32] Speaker 06:
Is that correct?

[00:19:33] Speaker 02:
That is correct.

[00:19:34] Speaker 02:
And if they die without a spouse or minor children, it is gone.

[00:19:38] Speaker 06:
Now, not the medical.

[00:19:39] Speaker 06:
If somebody had to put out the medical, do they get the medical back?

[00:19:44] Speaker 07:
The disability claims here don't go to medical expenses, right?

[00:19:48] Speaker 07:
They go to compensation for the disability.

[00:19:50] Speaker 02:
They go to compensation.

[00:19:51] Speaker 07:
Yeah, VA medical system is different.

[00:19:53] Speaker 07:
They're on the VA medical system.

[00:19:55] Speaker 02:
That is a different issue if they're over enrolled in the VA hospital system.

[00:20:01] Speaker 06:
Let me give you a for example.

[00:20:02] Speaker 06:
Suppose that I had a veteran in my family who had a claim for disability and they couldn't work.

[00:20:09] Speaker 06:
They were totally disabled.

[00:20:11] Speaker 06:
And in, you know, for the years, the seven years while their claim is pending, I'm paying the rent for them because otherwise they'd be on the streets.

[00:20:19] Speaker 06:
So I'm paying their rent for them.

[00:20:21] Speaker 06:
And it's taking seven years to process the claim.

[00:20:23] Speaker 06:
And in the end, the government says, well, it looks like you have a valid claim.

[00:20:27] Speaker 06:
We're probably going to award it, yada, yada, yada.

[00:20:30] Speaker 06:
And then that veteran dies.

[00:20:31] Speaker 06:
And I happen to be 26 years old.

[00:20:33] Speaker 06:
But I've been paying for my veteran in my family for the last seven years while he or she has been waiting to receive the benefits owed to them because they were injured in the service of our country.

[00:20:43] Speaker 06:
So that person, I can't step in.

[00:20:47] Speaker 06:
and say, well, wait a minute.

[00:20:49] Speaker 06:
During the last seven years, I had to pay $27,000.

[00:20:51] Speaker 06:
I went into debt paying my grandma's rent or my granddad's rent or whatever.

[00:20:56] Speaker 06:
That money's just gone.

[00:20:57] Speaker 02:
You're out of luck.

[00:20:59] Speaker 06:
So if I take care of a disabled veteran who has a valid claim.

[00:21:03] Speaker 02:
And you're not that veteran's spouse.

[00:21:08] Speaker 02:
You're out of luck.

[00:21:10] Speaker 07:
And I ask you not to push back, because I associate myself with Judge Moore's question.

[00:21:17] Speaker 07:
But just the other side of that coin, which just represents reality, is that this seems to be, and I hate this expression, but a zero-sum game.

[00:21:26] Speaker 07:
The VA has the same budget, and we as a different branch of government don't have anything to do with the resources that Congress decides the VA should have.

[00:21:36] Speaker 07:
So assuming that it were just a question of inadequate resources that led to all of this delay in the system,

[00:21:47] Speaker 07:
There's one point, which is there's a finite amount of resources.

[00:21:52] Speaker 07:
So even if we were to say you have to do this more quickly, maybe the money then has to come out of medical care for veterans.

[00:21:59] Speaker 07:
And the other point of this, which has been made in another of our opinions, is this is a zero-sum game because people file mandamus.

[00:22:07] Speaker 07:
And as you say, more often than not, except for Mr. Martin, the VA steps in and says, I'm going to get rid of this case.

[00:22:13] Speaker 07:
I'm going to take you.

[00:22:14] Speaker 07:
And all that means, I mean, that maybe

[00:22:17] Speaker 07:
good for the people involved, but all that means that another veteran who hasn't sought mandamus is going to be pushed to the back of the line or further behind in the line.

[00:22:27] Speaker 07:
So what are we to do with all of that?

[00:22:29] Speaker 02:
Let me answer your second question first, if I might.

[00:22:34] Speaker 06:
Do you just counsel veterans to file mandamus in every case?

[00:22:37] Speaker 06:
You probably should.

[00:22:38] Speaker 06:
Shouldn't you be counseling veterans to file mandamus in every case?

[00:22:43] Speaker 02:
I would suggest to you the answer to that is yes, but.

[00:22:47] Speaker 02:
The line that our veterans all got jumped in, except for Mr. Martin, is a line that should not exist under the Due Process Clause.

[00:22:58] Speaker 02:
This problem can be fixed.

[00:23:01] Speaker 02:
There is no statute, no statute that causes this 756-day delay.

[00:23:10] Speaker 07:
We don't know, and we're not in a position to know, but as happens in this case, which is highly unusual for the kind of cases we see, they did act.

[00:23:19] Speaker 07:
Congress did act.

[00:23:21] Speaker 07:
And we've got a new statute.

[00:23:22] Speaker 07:
Now, I don't know the details of that.

[00:23:23] Speaker 07:
They're not part of our record.

[00:23:25] Speaker 07:
But one would hope and surmise that people recognize the problem that you see and we see and act it to reasonably.

[00:23:33] Speaker 07:
And I know that doesn't apply prospectively, but there is this ramp program now

[00:23:38] Speaker 07:
that arguably allows it to affect and hopefully benefit veterans who have cases of long standing.

[00:23:46] Speaker 02:
Your Honor, it is in your record.

[00:23:47] Speaker 02:
It was filed, just in case you want to find it.

[00:23:50] Speaker 02:
But it doesn't do these veterans any good at all.

[00:23:52] Speaker 02:
This is a program in which, if they participated, the secretary says, well, we'll get you your first level decision in 125 days rather than 500 days.

[00:24:05] Speaker 02:
Great.

[00:24:06] Speaker 02:
That's wonderful.

[00:24:07] Speaker 02:
And then you've got a five and a half year delay to get to the Board of Veterans' Appeals.

[00:24:11] Speaker 02:
It doesn't touch that in any way.

[00:24:15] Speaker 02:
And our folks would be nuts to say, oh, dismiss your appeal.

[00:24:19] Speaker 02:
Trust me.

[00:24:20] Speaker 02:
Trust me.

[00:24:21] Speaker 07:
We're going to make you dismiss.

[00:24:22] Speaker 07:
So what would Congress have done?

[00:24:23] Speaker 07:
Say, OK, looking forward, you're not disputing that looking forward for new claims that are filed after the date that the system may approve.

[00:24:33] Speaker 02:
It may be good for them.

[00:24:35] Speaker 07:
So what should have been done?

[00:24:36] Speaker 07:
And everybody else whose claims were already pending, you're suggesting that Congress should have stepped in and said, OK, you have to devote all your resources to cleaning up your backlog.

[00:24:47] Speaker 07:
I mean, what are we supposed to do with that?

[00:24:49] Speaker 07:
We're Article III.

[00:24:50] Speaker 02:
The VA gets more money and more people any time it asks.

[00:24:57] Speaker 02:
What Congress should do if I were in Congress,

[00:25:02] Speaker 02:
Let's hold a hearing and find out, as Judge Moore asked, why does this take this long?

[00:25:09] Speaker 02:
What this court should do, in my view, is that when this Veterans Judicial Act was passed in 1988, part of it was to see to it that there was not unreasonable delay by the secretary.

[00:25:31] Speaker 02:
There's a reason that Congress put the Veterans Court and you here.

[00:25:36] Speaker 02:
It said that the Veterans Court is supposed to see that there is no unreasonable delay.

[00:25:43] Speaker 02:
And the Veterans Court has not done it.

[00:25:45] Speaker 06:
OK, stop.

[00:25:45] Speaker 06:
You're just grandstanding now, so stop.

[00:25:47] Speaker 06:
Part of my problem with your case is you run me into a separation of powers issue.

[00:25:55] Speaker 06:
I don't understand the precise relief you seek.

[00:25:58] Speaker 06:
When we get a mandamus petition, it is because in an individual case like Mr. Martin's, there is a legitimate problem and we need to correct what's going on in that individual case.

[00:26:12] Speaker 06:
But it feels, I just accused you of grandstanding, it feels like in your brief you're doing a little bit of the same thing.

[00:26:19] Speaker 06:
Do you operate under some sort of illusion that as

[00:26:24] Speaker 06:
a judiciary, we can order the secretary to adopt regs and process things at a certain time, or that we could order Congress to give more money to the VA so they have more people to process these things.

[00:26:36] Speaker 06:
A lot of what's in your brief goes to a broken system.

[00:26:42] Speaker 06:
I get it.

[00:26:43] Speaker 06:
The VA's own reports scream that, and they don't disagree with it.

[00:26:48] Speaker 06:
But what is it you think we can do other than

[00:26:51] Speaker 06:
order individual relief in the individual cases you have brought.

[00:26:57] Speaker 02:
Here's what we ask you to do.

[00:27:02] Speaker 02:
We ask you to order that a writ of mandamus issue requiring the secretary to take the discrete statutorily required step

[00:27:19] Speaker 02:
of issuing a final decision in the cases of our veterans who have waited too long.

[00:27:26] Speaker 02:
You can do that.

[00:27:27] Speaker 03:
No, we can't.

[00:27:29] Speaker 02:
You can do that.

[00:27:30] Speaker 02:
Excuse me.

[00:27:31] Speaker 03:
You say in the cases of the veterans who have waited too long.

[00:27:35] Speaker 03:
You confining that, I assume, to just these veterans before us.

[00:27:39] Speaker 03:
That's right.

[00:27:41] Speaker 03:
Just these veterans before us.

[00:27:42] Speaker 02:
When you say veterans who have waited too long, that would be... Judge, my time's running out.

[00:27:48] Speaker 02:
I was shortcutting it.

[00:27:49] Speaker 02:
I only mean these veterans.

[00:27:51] Speaker 02:
But if you hold that these delays violate the due process clause, it has an effect elsewhere.

[00:28:00] Speaker 02:
But that's not what we're here to ask for.

[00:28:01] Speaker 03:
That's what I wanted to, one of the things I wanted to ask you about was how exactly your due process, I had a little problem understanding exactly how the due process argument factors into the case.

[00:28:14] Speaker 03:
I understand you're challenging, you say that the

[00:28:19] Speaker 03:
CAVC used the wrong standard, the Costanza standard, in assessing the mandamus petitions should be tracked.

[00:28:28] Speaker 03:
It seems to me that if you lose on that, you're out of luck.

[00:28:32] Speaker 03:
If you win on that, that's the end of it.

[00:28:35] Speaker 03:
Why?

[00:28:35] Speaker 03:
How does the due process factor in?

[00:28:38] Speaker 02:
Thank you.

[00:28:38] Speaker 02:
We have two totally separate rights, totally separate.

[00:28:43] Speaker 02:
One is a right under Al Ritzack to argue about Costanza v.

[00:28:49] Speaker 02:
versus track.

[00:28:51] Speaker 02:
An absolutely independent right is to say that procedural due process, which you found attaches when somebody applies for disability benefits, procedural due process prevents the government from taking seven years to make a decision.

[00:29:14] Speaker 02:
We are being deprived of our due process.

[00:29:16] Speaker 07:
Well, it seems to me, so tell me if I'm wrong.

[00:29:19] Speaker 07:
In your amended complaint, your prayer for relief, the only reference makes two references to due process.

[00:29:25] Speaker 07:
One of them is that this court hold unconstitutional under the due process clause any statute regulation or practice that interferes with prompt and speedy appeals.

[00:29:38] Speaker 02:
We're not asking for that at this point.

[00:29:40] Speaker 02:
We thought that perhaps the secretary would come to us and say, you know, this regulation is in the way.

[00:29:46] Speaker 02:
What would you think about challenging that and ask the court to throw it out?

[00:29:50] Speaker 02:
But what we're asking for now is for you to enter an order of mandamus requiring the secretary to solve the constitutional problem, to issue a final decision.

[00:30:06] Speaker 02:
Under Norton, that's what you can do.

[00:30:08] Speaker 02:
That's what's required.

[00:30:10] Speaker 02:
He has a statutory requirement.

[00:30:13] Speaker 02:
Can I save 30 seconds?

[00:30:15] Speaker 07:
No, don't worry about your time.

[00:30:16] Speaker 07:
We'll reschedule you somebody.

[00:30:17] Speaker 07:
Can I ask you a question?

[00:30:19] Speaker 07:
Let me ask you a quick thing.

[00:30:22] Speaker 07:
Don't you have any apprehension at all that there's an easy answer to your relief?

[00:30:29] Speaker 07:
I mean, even putting in a one-year time frame or whatever.

[00:30:34] Speaker 07:
The VA can just, or the CAVC or the BVA, they can just say no and reject the claim.

[00:30:40] Speaker 07:
So you understand it's a double-edged sword.

[00:30:44] Speaker 07:
And if they think the only way they can comply, given their caseload and given their resources, is, OK, we'll just have to give short shrift to the merits of these cases.

[00:30:55] Speaker 07:
We can't allow more medical opinions.

[00:30:57] Speaker 07:
We're not going to give them the chance to respond to new documents.

[00:31:01] Speaker 07:
We're not going to look for all of these historical records, which is sometimes difficult to do with respect to a veteran's service.

[00:31:07] Speaker 07:
Isn't that a potential problem?

[00:31:10] Speaker 02:
We're well aware of that issue.

[00:31:11] Speaker 02:
We are all way past the time of the secretary helping us.

[00:31:16] Speaker 02:
That was in the first 500 days or so.

[00:31:18] Speaker 02:
We are now at the Board of Veterans' Appeals.

[00:31:21] Speaker 02:
Yes.

[00:31:22] Speaker 02:
Yes, we've talked to our veterans.

[00:31:24] Speaker 02:
They may just say, the judge said 60 days.

[00:31:27] Speaker 02:
Here it is in five days.

[00:31:28] Speaker 02:
You lose.

[00:31:30] Speaker 02:
If they do, we will appeal to the Court of Appeals for Veterans' Claims.

[00:31:33] Speaker 02:
And I believe we'll get a fair hearing.

[00:31:35] Speaker 03:
And let me ask you, would you want us to, assuming the court would agree with your argument with respect to the Costanza slash VCB, the track standard, would you want us to send this case back to the Veterans Court and say, consider it under the track standard?

[00:31:52] Speaker 03:
Consider the mandamus petitions not under the Costanza standard, but under the track standard.

[00:31:58] Speaker 02:
The answer to that has to be yes, but.

[00:32:01] Speaker 02:
There is a due process.

[00:32:04] Speaker 02:
deprivation that's going along with it, whether you decide it or not.

[00:32:10] Speaker 02:
And if it goes back like that, I would ask the court to hold that it also violates the due process clause.

[00:32:19] Speaker 02:
Now, go back and figure out.

[00:32:22] Speaker 07:
What violates the due process clause?

[00:32:23] Speaker 02:
The delay.

[00:32:24] Speaker 02:
The delay in each of these cases?

[00:32:27] Speaker 02:
We've got a dozen cases that say two-year delays.

[00:32:32] Speaker 02:
There's a second circuit case where a landlord had to wait two years to get money back from the city for participating in a program.

[00:32:43] Speaker 07:
Of course, it violates due process.

[00:32:45] Speaker 07:
And what about the cases you acknowledge that some of them are mooted?

[00:32:50] Speaker 02:
The cases that are mooted are moot.

[00:32:52] Speaker 02:
We have nine, 10 live veterans.

[00:32:58] Speaker 07:
Even for those veterans that have already received the relief, the problem that you identified in the relief that you sought in the first instance?

[00:33:08] Speaker 02:
These 10 have not received a final decision from the Board of Veterans' Appeals, which is what we seek.

[00:33:15] Speaker 03:
Well, what if it's documented before the Board of Veterans' Appeals?

[00:33:18] Speaker 02:
It's documented, but that's two years away from the decision.

[00:33:22] Speaker 07:
Well, what you sought in your relief is, as I mentioned before, you have one reference to due process.

[00:33:28] Speaker 07:
one that you sort of walk back.

[00:33:31] Speaker 07:
The second is that this court issue a writ of mandamus directing the secretary to prepare necessary appellate documents in a fashion that does not deprive the veteran of their due process rights.

[00:33:44] Speaker 07:
I don't understand what necessary appellate documents.

[00:33:48] Speaker 07:
Was that the statement of the case?

[00:33:51] Speaker 02:
We should have been more specific, and that's my fault that we weren't.

[00:33:56] Speaker 02:
That is a final decision.

[00:33:58] Speaker 02:
by the Board of Veterans' Appeals saying, you win or you lose?

[00:34:04] Speaker 02:
And this has never been a question raised by the CAVC with us.

[00:34:10] Speaker 07:
All right.

[00:34:10] Speaker 07:
Well, we'll restore some time for rebuttal, a few minutes.

[00:34:12] Speaker 07:
But why don't we hear from the government?

[00:34:14] Speaker 02:
Thank you very much, Your Honor.

[00:34:20] Speaker 00:
Good morning, and may it please the Court.

[00:34:22] Speaker 00:
The appellants are asking the Court to use its mandamus power to

[00:34:26] Speaker 00:
essentially inject itself into questions that are reserved for the political branches.

[00:34:32] Speaker 00:
The appellants are, through a writ of mandamus, inviting the court to really

[00:34:37] Speaker 00:
get into questions that not only are properly reserved to Congress and the VA.

[00:34:41] Speaker 07:
Wait a minute.

[00:34:41] Speaker 07:
We've got the track standard.

[00:34:43] Speaker 07:
That applies all over the place under numerous statutes where unreasonable delay is the standard.

[00:34:49] Speaker 07:
And it has to be a level of egregiousness in terms of the writ of mandamus.

[00:34:54] Speaker 07:
But that's what courts do all the time, right?

[00:34:56] Speaker 00:
Absolutely, Your Honor.

[00:34:57] Speaker 00:
Courts entertain writs of mandamus.

[00:35:00] Speaker 00:
And in this particular context, just to emphasize at the outset, the courts

[00:35:05] Speaker 00:
standard of review, it's an abusive discretion standard.

[00:35:07] Speaker 00:
So you're looking at whether or not the Veterans Court, in this particular instance, abused its discretion in denying the petition to remain damaged.

[00:35:13] Speaker 06:
Yes, but if the Veterans Court used the wrong legal standard for evaluating a petition, wouldn't that be an abuse of discretion?

[00:35:19] Speaker 00:
Yes, Your Honor, it would.

[00:35:21] Speaker 00:
And in our view, the court properly applied the right standard, the Costanza standard.

[00:35:26] Speaker 07:
Is your view of the Costanza standard, I mean, there's that one phrase, right, arbitrary refusal.

[00:35:33] Speaker 07:
Do you construe refusal to be an affirmative refusal?

[00:35:36] Speaker 07:
I thought I couldn't understand from your brief, frankly.

[00:35:38] Speaker 07:
You seem to be defending the standard, but then kind of reinterpreting it and suggesting that maybe it's not really all that different than track.

[00:35:45] Speaker 07:
So why don't you tell us what your view is.

[00:35:47] Speaker 00:
Sure, Your Honor.

[00:35:47] Speaker 00:
And the full language in Costanza, which became the basis for subsequent non-public decisions used by the Veterans Court

[00:35:59] Speaker 00:
And on Banque, in particular, and Ribaudot, the Veterans Court also applied the same sort of standard.

[00:36:04] Speaker 00:
But what it's asking about is not just whether or not there was an arbitrary refusal to act.

[00:36:08] Speaker 00:
It's asking whether or not there is a delay that is so extraordinary, taking into account the burdens on the Secretary, that it amounts to an arbitrary refusal to act.

[00:36:17] Speaker 00:
And I think the point that we tried to make in our brief is that on its face, that standard does not require any affirmative

[00:36:24] Speaker 07:
refusal to act in a given case, what it does take into account... Well, it's really hard, you know, to take a statement where the words are arbitrary refusal to act, and to hear you say, does it mean a refusal to act?

[00:36:39] Speaker 07:
Isn't that what you just said?

[00:36:40] Speaker 00:
Well, Your Honor, I think what I was focusing on is the concept of amounting to an arbitrary refusal to act, because what the court, the case law recognizes, and I think that the, as we said in our brief,

[00:36:50] Speaker 00:
The Costanza standard is really consistent with a long line of case law going back to... Well, how in your view is it different than the TRAC standard?

[00:36:58] Speaker 00:
Well, in many ways, it's very similar to the TRAC standard.

[00:37:00] Speaker 07:
Okay, so how is it different?

[00:37:01] Speaker 00:
It's different in the sense that the TRAC standard sets up this sort of six multifactor

[00:37:06] Speaker 07:
Right, none of which are compelling and which the DC Circuit recognized.

[00:37:10] Speaker 07:
The preface to that is, this is an abridged rule and there might be other factors, yada da.

[00:37:15] Speaker 07:
So what's wrong with that?

[00:37:16] Speaker 07:
What's the difference between that?

[00:37:18] Speaker 00:
Well, I think it's not so much as what's wrong with TRAC, as there isn't anything wrong.

[00:37:23] Speaker 00:
In fact, there's a lot right with what the Costanza standard does.

[00:37:26] Speaker 07:
So what's the difference?

[00:37:27] Speaker 00:
Well, I think the Costanza standard, the Veterans Court has adopted that formulation in the context of the VA.

[00:37:33] Speaker 00:
The track standard was adopted by the VA circuit, excuse me, the DC circuit to apply it.

[00:37:38] Speaker 07:
You're still not answering my question about what the difference is between the two standards.

[00:37:42] Speaker 00:
Well, the track standard takes a multiple sort of multi-factor test.

[00:37:48] Speaker 00:
Some of those aspects in the track formulation do not appear in Costanza.

[00:37:53] Speaker 00:
But ultimately, they're both going to the same question in a delay context and asking whether a delay is so extraordinary in the context of a writ of mandamus.

[00:38:02] Speaker 00:
that it meets that high burden on a mandamus position.

[00:38:04] Speaker 07:
Is there a difference then?

[00:38:05] Speaker 07:
I'm still trying to see what the difference is.

[00:38:06] Speaker 07:
You're right.

[00:38:07] Speaker 07:
They have the standard of viewing this in the context of a factor being whether or not the health or the welfare of an individual is at stake.

[00:38:16] Speaker 07:
Are you telling me that the CAVC

[00:38:20] Speaker 07:
couldn't or doesn't sort of consider that as the backdrop?

[00:38:24] Speaker 07:
Would that be problematic if it did?

[00:38:26] Speaker 00:
I think the case law shows that under the Costanza standard, the court is not, contrary to what was said earlier, under Costanza, the Veterans Court is taking into account the circumstances facing the individual veteran.

[00:38:37] Speaker 00:
It's not just considering.

[00:38:38] Speaker 07:
OK, so that factor's OK.

[00:38:40] Speaker 07:
What other factors in track do you think?

[00:38:43] Speaker 07:
Is there a difference between that?

[00:38:44] Speaker 07:
I have a two-part question.

[00:38:46] Speaker 07:
One, what is the difference?

[00:38:48] Speaker 07:
And if there's a difference,

[00:38:50] Speaker 07:
what the problem is with the track standard.

[00:38:52] Speaker 00:
Your Honor, my answer to that is, you know, the track standard cites a number of things that are clearly not expressly reflected in the Costanza standard.

[00:39:02] Speaker 00:
For example, the delays, whether a delay might be reasonable for economic regulation is less or could be less tolerable for

[00:39:10] Speaker 07:
Well, that's the health and welfare thing, which you already, I thought you just told me two minutes ago that, of course, they consider it in the context of health and welfare.

[00:39:17] Speaker 00:
Well, I think they do.

[00:39:18] Speaker 00:
But I think if your question is what is the difference between the two standards, all I can really point to is the fact that you've got a very long and complex, what the Decent Circuit has acknowledged as a vague standard, and the track standard that is different on its face from the Costanza standard.

[00:39:34] Speaker 00:
The Costanza standard does use this arbitrary refusal to act language.

[00:39:37] Speaker 06:
I think our position is simply that that's what... But what would make a difference on its face?

[00:39:41] Speaker 06:
I feel like you're evading, and maybe it's because you don't have a good answer, but you're evading the Chief Judge's question, which is, what are the precise differences?

[00:39:50] Speaker 06:
Let me help you.

[00:39:50] Speaker 06:
Number five, under track, is the Court should also take into account the nature and extent of the interest prejudiced by the delay.

[00:39:58] Speaker 06:
Is there anything you believe in the arbitrary refusal to act language that would take into account, as you understand it, how the veterans' interests are being prejudiced, like these veterans who died, for example, right, during this process.

[00:40:13] Speaker 06:
They can't get their benefits.

[00:40:15] Speaker 06:
Their sons and daughters can't get their benefits if they're over the age of 18.

[00:40:21] Speaker 06:
So is there anything inherent in the Costanza stanza, because I've read

[00:40:25] Speaker 06:
All six just now, as I sat here, that cite Costanza, and all they say is nothing that rises to the level of arbitrary refusal to act.

[00:40:33] Speaker 06:
So do you see, in any of these Costanza cases, any analysis that takes these kinds of factors into account?

[00:40:40] Speaker 00:
I think, Your Honor, in the language that says in Costanza about whether a delay is so extraordinary, taking into account the burdens on the Secretary, such that it amounts to an arbitrary refusal to act, that extraordinary concept is really inherent in

[00:40:54] Speaker 00:
a mandamus petition.

[00:40:56] Speaker 00:
You have to demonstrate a clear and indisputable right to relief, and you have to show that there are no adequate alternative means of obtaining a relief.

[00:41:03] Speaker 00:
That extraordinary concept is embedded in the standard.

[00:41:06] Speaker 00:
It allows the court to consider multiple other factors.

[00:41:07] Speaker 06:
So then just out of curiosity, do you think when the DC Circuit came up with TRAC and when 263 district court and regional circuit opinions throughout the country have followed it and used these six factors, it was just entirely superfluous because it really reflects nothing more than the mandamus standard?

[00:41:24] Speaker 06:
It seems odd that all of those courts would think they should go through these six factors because it's not 600 cases like the blue brief claims.

[00:41:33] Speaker 06:
It's 263 because I went through actually my law clerk up there went through all of them.

[00:41:37] Speaker 06:
So it's 263 cases and in many different district court and regional circuits that went through those six factors in addition to laying out the mandamus standards.

[00:41:47] Speaker 06:
So they seem to disagree with you.

[00:41:50] Speaker 06:
Well it is inherently

[00:41:51] Speaker 06:
captured within the mandamus.

[00:41:53] Speaker 06:
Or maybe they're just into redundancy.

[00:41:56] Speaker 00:
Well, they're dealing with different contexts.

[00:41:57] Speaker 00:
I don't think that those district courts are really evaluating the differences between the standards.

[00:42:01] Speaker 06:
And the five original circuits.

[00:42:01] Speaker 06:
Let's not forget them.

[00:42:02] Speaker 00:
Let's not forget them.

[00:42:03] Speaker 00:
I agree, Your Honor.

[00:42:04] Speaker 00:
And we're not taking issue with the fact that the track standard has been applied in multiple different contexts by the courts.

[00:42:09] Speaker 00:
It's been found to be an appropriate balancing test.

[00:42:11] Speaker 00:
So it's a question.

[00:42:12] Speaker 06:
So what more?

[00:42:12] Speaker 06:
Veterans, usually, the Supreme Court has said, and I'll be honest, I've never understood this thumb on the scale thing.

[00:42:18] Speaker 06:
I don't even know what that means.

[00:42:20] Speaker 06:
I'm a plain language kind of gal.

[00:42:22] Speaker 06:
I don't get what thumb on the scale means.

[00:42:24] Speaker 06:
I know you know what I'm referring to, right?

[00:42:25] Speaker 06:
But the Supreme Court said, you know, we're always to be more favorable in interpretation to veterans, not less.

[00:42:32] Speaker 06:
We have two different standards.

[00:42:33] Speaker 06:
We have the Costanza standard, articulated by the Court of Veterans Claims in exactly one and a half pages of no analysis.

[00:42:40] Speaker 06:
It comes up with this arbitrary refusal to act language, which is then repeatedly applied.

[00:42:45] Speaker 06:
We have a DC Circuit opinion that articulates six factors, several of which seem like they'd be more favorable to veterans under these mandamus circumstances.

[00:42:54] Speaker 06:
Do you think there's anything to that Supreme Court language that says some on the scale for veterans when you're choosing to interpret regulations, you should choose the interpretation that's more favorable to the veteran?

[00:43:04] Speaker 06:
Could that maybe be the kind of thing that tells us in this case, for goodness sakes, you probably ought to apply the same standard that five regional circuits and 94 district courts have applied?

[00:43:13] Speaker 06:
and not the one you chose instead in one and a half pages of no analysis, which is more difficult to prove?

[00:43:18] Speaker 00:
Well, Your Honor, in terms of being more difficult to prove, I think that what this Court has in a number of non-published decisions has affirmed the Veterans Court's application of the Costanza formulation.

[00:43:30] Speaker 07:
And so with respect to that, I think that- Do you foresee that if we were to adopt or require that the CABC applied the TRAC standard,

[00:43:40] Speaker 07:
Is that a difference with the distinction?

[00:43:42] Speaker 07:
Do you think the result would be different?

[00:43:43] Speaker 07:
Do you think this arbitrary refusal to act is a more stringent standard than the one you come up with if you apply track?

[00:43:51] Speaker 00:
No, Your Honor.

[00:43:51] Speaker 00:
In this particular case, I don't think it would make a difference in the outcome, precisely because the track standard, number one, takes into account this notion of a rule of reason.

[00:44:00] Speaker 00:
And the second prong in the track analysis is taking into account what it would take into account whether Congress and the political branches have done anything to act.

[00:44:08] Speaker 00:
Those factors, I think, weigh heavily against the issuance of mandamus in this case.

[00:44:12] Speaker 00:
If you were to do a TRAC analysis, there's really been no showing that you would come up with a different outcome.

[00:44:17] Speaker 07:
So can you come up with any kind of hypothetical where there would be a difference, a different result based on the distinction?

[00:44:25] Speaker 07:
I still can't get over not understanding what the government's position is to what the distinction is.

[00:44:31] Speaker 07:
Obviously, TRAC has a lot more words and brings in other kinds of policy concepts.

[00:44:35] Speaker 07:
But at bottom, I'm trying to think

[00:44:37] Speaker 07:
see if the government thinks that there's any circumstance in which applying the two different standards would lead to a different result.

[00:44:43] Speaker 00:
Your Honor, I'm not sure that I can't come up with a situation that would lead to a different result offhand.

[00:44:47] Speaker 00:
But our position is really that you have settled case law with which the Costanza formulation is consistent.

[00:44:54] Speaker 00:
You have the fact that it's been repeatedly applied for almost 19 years by the Veterans Court.

[00:44:58] Speaker 00:
And it's worked.

[00:44:59] Speaker 07:
Well, am I wrong here?

[00:45:00] Speaker 07:
Because we've got a lot of individual cases.

[00:45:02] Speaker 07:
And the CABC, as I said earlier, issued different opinion with respect to each of these.

[00:45:07] Speaker 07:
didn't cite Costanza in very many of those.

[00:45:11] Speaker 07:
It didn't articulate or analyze the standard except for citing it in the other one.

[00:45:16] Speaker 07:
So I don't know where that hasn't been particularly illuminating for me, at least.

[00:45:20] Speaker 00:
Well, that raises an important point, which is, again, on a writ of mandamus, I think the Veterans Court has reached the question that was presented before it, which is on a mandamus petition under the Cheney standard, as reflected in the Supreme Court's decision in Kerr, you need to prove really three things.

[00:45:37] Speaker 00:
a clear and indisputable right to relief, a lack of adequate alternative means of obtaining it, and the district court, or the veterans court in this case, has to be convinced that a mandamus petition should issue.

[00:45:48] Speaker 00:
And that last one is significant, too, because you were looking at this on abusive discretion standard and asking whether or not the veterans court abused its discretion.

[00:45:56] Speaker 07:
Under that three-pronged formula, we think that- Because I want to segue into the mootness question, because there are a lot of mootness questions that are near to the details here.

[00:46:05] Speaker 07:
But frankly, let's look at Mr. Martin, then.

[00:46:07] Speaker 07:
Sure.

[00:46:07] Speaker 07:
Because he's the only one, at least, as Judge Moore pointed out earlier, where subsequent to the filing of the mandamus petition in each of these individual cases, I think his case is the only one in which there's been no action.

[00:46:21] Speaker 07:
Now, we don't know whether the action was taken as a result of mandamus or not.

[00:46:24] Speaker 07:
But his, it hasn't.

[00:46:26] Speaker 07:
There's been no action.

[00:46:28] Speaker 00:
Am I right?

[00:46:29] Speaker 00:
I wouldn't necessarily agree there's been no action.

[00:46:31] Speaker 00:
But let me try to.

[00:46:33] Speaker 06:
Well, we asked you to supplement us and let us know any action that's taking place.

[00:46:38] Speaker 06:
And you reported no action.

[00:46:40] Speaker 06:
So what am I missing?

[00:46:41] Speaker 00:
Well, I think our supplement characterized the status as it stands.

[00:46:45] Speaker 07:
And I would just say, in terms of... Yeah, but you're really walking into it.

[00:46:49] Speaker 07:
Because there's been no action, and we'll get into it, I'm sure, between what Judge Moore talked about earlier, certification and then the docketing.

[00:46:59] Speaker 07:
That's the step we're on now.

[00:47:01] Speaker 07:
We're not in the statement of the case.

[00:47:03] Speaker 07:
We're not on something substantive, right?

[00:47:05] Speaker 00:
So the docketing is to get back to some of the colloquy earlier about what is the docking.

[00:47:09] Speaker 00:
My understanding is the docketing is when the board is essentially receiving the cases ready to hear it.

[00:47:14] Speaker 00:
It's different from simply sort of listing it on an electronic database or what have you.

[00:47:18] Speaker 00:
But it's actually when the board is ready to hear it.

[00:47:20] Speaker 00:
The number of days that it's taken between the certification stage

[00:47:24] Speaker 00:
and the docking stage has been, to date, extremely long.

[00:47:28] Speaker 00:
And that is a big problem.

[00:47:29] Speaker 06:
222 days.

[00:47:30] Speaker 00:
That is the statistic that was in the record.

[00:47:32] Speaker 06:
In the 2015 report.

[00:47:33] Speaker 00:
Correct, Your Honor.

[00:47:34] Speaker 00:
I think that's the statistic that the appellants have focused on.

[00:47:37] Speaker 07:
Because I don't understand what you mean when you say, when they're ready to hear it, that's when they've docked it.

[00:47:42] Speaker 07:
So that date that we see and docked it is the date of the hearing?

[00:47:47] Speaker 07:
No, not the hearing, Your Honor.

[00:47:48] Speaker 00:
I think it's the distribution of the case to the board for decision.

[00:47:53] Speaker 07:
Okay, well, this is really odd, because in Ms.

[00:47:56] Speaker 07:
Sarah Aktepe, the date and time from the certification was from February 2017 to June.

[00:48:04] Speaker 07:
So that took four months.

[00:48:06] Speaker 07:
We got another case where it was the same day.

[00:48:09] Speaker 07:
Mr. Myers is deceased, but it was the same day.

[00:48:13] Speaker 07:
It's only six months for Mr. Messinger.

[00:48:21] Speaker 07:
But you're clear right that that's what it is.

[00:48:23] Speaker 07:
It's when they're ready to hear it.

[00:48:24] Speaker 07:
So how come other people get their cases ready to hear in a matter of months?

[00:48:29] Speaker 07:
And Mr. Martin...

[00:48:31] Speaker 07:
It's now well over two years, and it hasn't been docketed by the FBI.

[00:48:35] Speaker 00:
I don't know why it took Mr. Martin's situation longer.

[00:48:37] Speaker 00:
I do know that with respect to Mr. Martin.

[00:48:39] Speaker 07:
Well, yeah, and we have no idea, because it hasn't happened yet.

[00:48:42] Speaker 07:
We don't know when it's going to happen.

[00:48:44] Speaker 00:
Well, that's right.

[00:48:44] Speaker 00:
We don't know.

[00:48:45] Speaker 00:
But with respect to Mr. Martin, Mr. Martin, I believe, is requesting a hearing before the board.

[00:48:49] Speaker 00:
And in some cases, at least, and I don't know the specifics with respect to his case, there can be situations where, after the so-called Form 9 substantive appeal is filed and the certification stage,

[00:49:01] Speaker 00:
There can be new evidence submitted.

[00:49:02] Speaker 00:
And Mr. Martin has also requested a hearing, which can result in sort of a difference with other veterans if you're requesting a hearing.

[00:49:09] Speaker 07:
Oh, God.

[00:49:10] Speaker 07:
I hope you're telling veterans that if you request a hearing, you're going to sit on this for another two years.

[00:49:14] Speaker 07:
Is that what you're saying?

[00:49:15] Speaker 07:
I mean, so they have two tracks.

[00:49:16] Speaker 07:
If you request a hearing, you get into one bucket.

[00:49:18] Speaker 07:
And if you don't, you're in another bucket.

[00:49:19] Speaker 00:
Well, Your Honor, I'm actually not sure what veterans are notified.

[00:49:22] Speaker 00:
They are given, if they're requested a hearing, they are given information with respect to that.

[00:49:27] Speaker 00:
I do want to be careful here in terms of describing the state of play

[00:49:31] Speaker 00:
in the appellate system, there is a big difference between where we are today and where we are historically in the record of this case versus under the new modernization act.

[00:49:40] Speaker 06:
But the new modernization act doesn't apply to Mr. Martin.

[00:49:43] Speaker 06:
And just like you'd like me to take into account which cases are mooted by subsequent action that has actually occurred in them post the petition, I can't imagine what might happen to someone other than Mr. Martin in the future.

[00:49:55] Speaker 06:
I am limited much to his chagrin.

[00:49:58] Speaker 06:
to decide whether in an individual case, it individually warrants a petition for mandamus.

[00:50:05] Speaker 06:
I view my job as quite narrow, which you should very much appreciate in this case.

[00:50:10] Speaker 06:
So don't tell me what might benefit some future veteran post February 2019.

[00:50:16] Speaker 06:
Mr. Martin has filed his certification, or the certification was filed in February of 2016.

[00:50:25] Speaker 06:
He filed a petition of mandamus seven months later,

[00:50:27] Speaker 06:
Why wasn't it granted at that point in time?

[00:50:29] Speaker 06:
I think it's an abuse of discretion for it not to have been granted under any standard you could make up, which is pretty much what I think the Costanza is, a made-up standard.

[00:50:38] Speaker 06:
But in any event, let's just focus on it.

[00:50:42] Speaker 06:
Why shouldn't I say it's an abuse of discretion, either because the Costanza standard was wrong as a matter of law, or because just under the facts of this case, you've said nothing that convinces me that it warrants

[00:50:57] Speaker 06:
two years to move from a certification to a docking, which is not even a resolution.

[00:51:03] Speaker 06:
It's just passing the case on to the judges who are going to hear it.

[00:51:06] Speaker 06:
It's not like there's briefing in between that leads up to it.

[00:51:09] Speaker 06:
No more evidence is being taken in Mr. Martin's case.

[00:51:13] Speaker 06:
Why isn't that warranting mandamus?

[00:51:16] Speaker 06:
Forget about every other case.

[00:51:17] Speaker 06:
This one

[00:51:18] Speaker 06:
Why doesn't it warrant mandamus?

[00:51:20] Speaker 00:
Well, first of all, a couple responses, Your Honor.

[00:51:22] Speaker 00:
One is that this new modernization act is not going to affect until February of 2019.

[00:51:27] Speaker 00:
However, the VA, as reflected in our supplemental appendix, is in the process of issuing invitations to veterans who have these so-called legacy appeals.

[00:51:35] Speaker 00:
And that includes people like Mr. Martin, who would have the ability to opt in to these new procedures.

[00:51:39] Speaker 00:
I know.

[00:51:40] Speaker 06:
And you know what?

[00:51:40] Speaker 06:
I spent some time reading it.

[00:51:41] Speaker 06:
I have it tapped right here.

[00:51:43] Speaker 06:
His ramp letter, right here.

[00:51:45] Speaker 06:
Do you know it would be of no benefit to him because the ramp process expedites the portion of the appeal that has already occurred for him.

[00:51:51] Speaker 06:
Isn't that interesting?

[00:51:53] Speaker 06:
It would expedite his time to get a statement of the case.

[00:51:55] Speaker 06:
Guess what?

[00:51:56] Speaker 06:
He's got one of those.

[00:51:57] Speaker 06:
That has nothing to do with the petition he's asking for.

[00:51:59] Speaker 06:
He's asking for a BVA decision.

[00:52:01] Speaker 06:
The ramp letter you offered him gives him nothing that would expedite his BVA decision from the period of time when it has been certified to the period of time when there will be a decision.

[00:52:11] Speaker 06:
So I'm not sure.

[00:52:13] Speaker 06:
how that really helps him and how it answers the question of why he doesn't deserve mandates.

[00:52:18] Speaker 06:
Am I missing something?

[00:52:19] Speaker 00:
Well, Your Honor, my understanding is that Mr. Martin, who was given one of these invitations, would have the opportunity to invoke these procedures and that they would help him.

[00:52:26] Speaker 06:
How would they help him?

[00:52:28] Speaker 00:
Well, if he wanted to receive a faster decision on his... On his appeal?

[00:52:33] Speaker 00:
On his appeal.

[00:52:34] Speaker 00:
The way that the RAMP program.

[00:52:35] Speaker 07:
Appeal to the CAVC or to the BVA?

[00:52:37] Speaker 00:
On to the BVA.

[00:52:38] Speaker 00:
There's no CVAC appeal with respect to that.

[00:52:40] Speaker 07:
What does the new statute do with respect to the RAMP?

[00:52:42] Speaker 00:
Well, the RAMP program is basically a pilot program.

[00:52:45] Speaker 00:
And what it does is the VA is extending this out to some 350,000 veterans, prioritizing the ones who have been waiting the longest.

[00:52:53] Speaker 00:
And the idea is that they have the ability, if they want to take advantage of that program now, to basically

[00:53:00] Speaker 00:
invoke the faster review processes.

[00:53:03] Speaker 00:
So he could, with respect, instead of waiting for a board decision, he could then go back for a higher level review before the regional office, or if he wanted to supplement his evidence.

[00:53:14] Speaker 06:
Just to make sure I'm not misunderstanding something, this is the letter you sent to him, and it says, compensation-related appeals certified to the board through formal placement on the board's docket are excluded and will remain pending in the current appeals process.

[00:53:27] Speaker 06:
That seems like where he is.

[00:53:29] Speaker 06:
His has been certified.

[00:53:31] Speaker 00:
Your Honor.

[00:53:32] Speaker 06:
So it seems like it benefits you.

[00:53:34] Speaker 06:
One of the things I think RAMP meant to take care of is this ridiculous 537-day delay.

[00:53:40] Speaker 06:
But he already has been through that.

[00:53:44] Speaker 06:
And it says in the letter you sent him that his case is not really eligible for kind of fast tracking, because it's up to and through the certification period, it seems.

[00:53:54] Speaker 00:
Your Honor, I'm not sure about the language in the letter, but I do.

[00:53:56] Speaker 06:
That's the letter that went to him.

[00:53:57] Speaker 00:
I understand that.

[00:53:58] Speaker 00:
But my understanding of the RAMP program in terms of who is eligible

[00:54:01] Speaker 00:
are that the people whose cases before the boards have been so-called activated, meaning that the board is actively looking at it, those people are not going to be able to participate in the ramps to avoid the duplication.

[00:54:13] Speaker 00:
So I'm not sure if that applies to Mr. Martin now that you read that to me or not.

[00:54:17] Speaker 00:
I do want to make a couple of other observations, though, because our focus, our argument is not simply that ramp renders all of these appeals moot, but these are important policy questions that the Congress

[00:54:28] Speaker 00:
has recently been grappling with, there is a real separation of powers concern in the way that this bill has been framed.

[00:54:32] Speaker 06:
What does that have to do with Mr. Martin?

[00:54:35] Speaker 00:
Well, Your Honor, I think it does.

[00:54:36] Speaker 00:
Not only, I mean, the council has reformulated the request for relief.

[00:54:40] Speaker 06:
Wait, so I shouldn't consider relief for someone who is subject to an unreasonable delay because Congress is considering fixing the problem as may be applied to other individuals?

[00:54:51] Speaker 06:
Well, Your Honor, the- Mandamus is narrow, sir.

[00:54:54] Speaker 06:
I'm not looking to change policy for the secretary or rewrite the laws, no matter how much people would like me to do that based on the briefing in this case.

[00:55:02] Speaker 06:
I'm looking to figure out whether these individual veterans have suffered unreasonable delays, and if so, what ought to be done about it.

[00:55:09] Speaker 06:
So I just don't see how Congress taking future action matters at all to Mr. Martin.

[00:55:14] Speaker 06:
If you were here, do you think it would matter to you if Mr. Martin were out there?

[00:55:18] Speaker 06:
Does it matter to you?

[00:55:19] Speaker 06:
Your Honor, I think that the point I'm trying to make is... Maybe it matters to him because he's glad that future veterans won't have to suffer the way he has, but I think he's still great.

[00:55:27] Speaker 00:
Your Honor, I think my point with respect to the Modernization Act is that Congress in setting up this system really made a trade-off between timeliness of these appeals on the one hand and other objectives.

[00:55:37] Speaker 00:
A lot of the problem with the delays historically has been

[00:55:40] Speaker 00:
a lot of procedure, a lot of process, much of which is for the benefit of the veteran.

[00:55:44] Speaker 00:
You have the duty to assist by statute.

[00:55:47] Speaker 07:
Let me move back to, oh, go ahead, Judge Shaw.

[00:55:52] Speaker 03:
I wanted to get back, because there's this question about the certification.

[00:55:56] Speaker 03:
And you were discussing that in response to questions from both the chief judge and Judge Moore.

[00:56:02] Speaker 03:
As I understand it from what you're saying, please correct me if I'm wrong, it gets certified to the board.

[00:56:10] Speaker 03:
then it's sitting there before the board.

[00:56:14] Speaker 03:
But the board does not officially docket it until it decides it has space for it in line with all of the other cases it already has.

[00:56:27] Speaker 03:
Is that what you're saying?

[00:56:28] Speaker 00:
That is what I'm suggesting, Your Honor.

[00:56:30] Speaker 00:
I am not sure exactly what transpires between the certification and that sort of decision that it is ready to be docketed.

[00:56:38] Speaker 00:
What I can tell you is that

[00:56:39] Speaker 00:
The the the board the here that the status of a hearing if a hearing is going to be requested is taken into account in that process that can sometimes.

[00:56:48] Speaker 03:
For example Judge Moore was saying in earlier she was pointing out which is correct obviously that the appeal gets filed here it's docked either that day or the next day and then it gets on a track scheduling order is issued but what I hear you saying and what I got the sense of from some of the

[00:57:07] Speaker 03:
affidavits that were mentioned or declarations that were mentioned in the record that what happens is appeal goes, certification gets filed with the board, but the board doesn't take what we would think of as a common docketing action until it determines that it's in a position where it can start adjudicating the case in some way.

[00:57:32] Speaker 03:
Is that

[00:57:33] Speaker 03:
I think that's right, your honor.

[00:57:34] Speaker 03:
I think that's correct.

[00:57:35] Speaker 03:
So there's kind of this stop period.

[00:57:37] Speaker 03:
Even though it's at the board, the board doesn't do anything until it feels it can do something.

[00:57:43] Speaker 00:
Yes, your honor.

[00:57:44] Speaker 00:
Well, a couple of points.

[00:57:45] Speaker 00:
One is I think that's consistent with my understanding, your honor.

[00:57:49] Speaker 00:
But I think the way this appeal is really framed, we are not focusing on just the docketing versus the statement of the case versus the certification.

[00:57:57] Speaker 00:
And again, getting back to the request for relief and how problematic it is, asking the court to

[00:58:02] Speaker 03:
But the issue, the way the issue appears to sit now, given the supplemental certifications we've got, is that the whole issue is the certification docketing board action phase.

[00:58:19] Speaker 03:
Where could one find exactly how the board operates in this?

[00:58:24] Speaker 03:
Would there be specific board rules?

[00:58:27] Speaker 00:
With respect to the docketing versus the certification stage?

[00:58:30] Speaker 03:
With respect to this, we have the certification, now we dock it.

[00:58:34] Speaker 00:
Your Honor, I suspect, and I'd be glad to provide a supplemental brief if the Court is interested in terms of, I believe that there are regulations that clarify what that process is.

[00:58:42] Speaker 00:
I do, in the Board's statistics, there are a number of important pieces of information that we think are in there that we just filed in the supplemental appendix related to the Board's processes that I do believe touch on this process of the docketing.

[00:58:55] Speaker 00:
But that really is,

[00:58:56] Speaker 00:
In terms of what your characterization of where the case stands is now, I would beg to differ with an aspect of that in that what the Veterans Court was considering was whether, on the record before it at the time, now that was late 2016, is whether mandamus would issue.

[00:59:11] Speaker 00:
The fact that it was appropriate, the fact that a number of these things have occurred since then, in our view, really reinforces the fact that there has not been an unreasonable delay and that

[00:59:23] Speaker 00:
Getting back to the standard, clear and indisputable right that that has not been met.

[00:59:26] Speaker 07:
Well, let's assume hypothetically that we were to conclude that to the extent there's daylight between Costanza and track, we think there is.

[00:59:34] Speaker 07:
And we think the correct standard ought to have been track.

[00:59:39] Speaker 07:
We're left with Mr. Martin, whose case has not been mooted out by subsequent action.

[00:59:44] Speaker 07:
And I presume the government's argument.

[00:59:47] Speaker 07:
And then there's some special circumstance for Ms.

[00:59:49] Speaker 07:
Seifert's.

[00:59:50] Speaker 07:
But aside from that, is it the government's position that even if we were to conclude that the wrong standard was applied, the cases have been mooted out by subsequent action, and therefore they're all done?

[01:00:03] Speaker 00:
No, Your Honor, not as a whole.

[01:00:06] Speaker 00:
So the cases that, in the Secretary's view, are moot are Ms.

[01:00:09] Speaker 00:
Skiver's.

[01:00:10] Speaker 00:
Her appeal is moot because she got a favorable decision.

[01:00:14] Speaker 00:
Right.

[01:00:14] Speaker 00:
Notwithstanding the fact that she's challenging the effectiveness date, our position is that that doesn't fall into a new misconception.

[01:00:20] Speaker 00:
It's a new claim.

[01:00:22] Speaker 00:
I believe council suggested that there had been four veterans who died.

[01:00:25] Speaker 00:
My understanding is I think there were two.

[01:00:28] Speaker 00:
It's Myers, and in the other case, Myers, and then I believe Mr. Miller had deceased during the pendency of the claim.

[01:00:35] Speaker 00:
But Ms.

[01:00:37] Speaker 00:
Agtepe is another claimant.

[01:00:39] Speaker 00:
She had a board decision that was issued just a few days ago on April 17, 2018.

[01:00:44] Speaker 00:
In our view, that renders that claim moot as well.

[01:00:47] Speaker 00:
The fact that there have been these subsequent steps, the certification steps, in our position is not that that renders them moot.

[01:00:55] Speaker 00:
It just demonstrates, it reaffirms, that the courts below got the right results.

[01:00:58] Speaker 03:
So you're saying that in terms of the people listed on the Martin supplemental submission, you're saying that Actepe, Myers, and Skifers are moot.

[01:01:14] Speaker 03:
That's correct, Your Honor.

[01:01:15] Speaker 03:
And how about on the Rose?

[01:01:17] Speaker 03:
It looked like in Rose, everybody might be out.

[01:01:24] Speaker 00:
So, Your Honor, with respect to Rose, it is Mr. Daniels is the one who has now been given a decision, which is essentially the relief requested.

[01:01:38] Speaker 00:
If they're alleging a delay in the board decision.

[01:01:40] Speaker 07:
Well, let me ask you about that.

[01:01:41] Speaker 07:
I'm just really confused now, because I thought it was the government's position that where people like Mr. Jean, Mr. Matthews, these were the appellants that were seeking a statement of the case.

[01:01:58] Speaker 07:
And subsequent to the filing of the mandamus, a statement of the case was issued.

[01:02:02] Speaker 07:
If I'm correct about that, then the government is not arguing that those appeals are therefore

[01:02:08] Speaker 00:
Well, Your Honor, I'm not sure that, with respect to Mr. Gene, I think all of these appellants are not necessarily focused on just the issuance of the statement of the case.

[01:02:17] Speaker 07:
As I understand their argument, and it is for- So these cases are not moot, and therefore, if we change the standard, why would we not, with the exception of the two or three that you've discussed with Judge Hall, why don't we have to send vacate and send those back if these are different cases?

[01:02:32] Speaker 00:
Your Honor, because I think, again, the question before this Court is, on abusive discretion, you're looking at whether or not a writ amendamus was properly denied.

[01:02:39] Speaker 00:
And on that basis, whether or not you apply this track standard

[01:02:42] Speaker 00:
or the standards of standard, you're ultimately asking whether or not there was a clear and indisputable right to relief and whether there are adequate alternative means of treatment.

[01:02:50] Speaker 07:
Well, we don't know.

[01:02:51] Speaker 07:
The answer is we're not reversing.

[01:02:52] Speaker 07:
I mean, I didn't that suggest that we were going to reverse the result.

[01:02:56] Speaker 07:
But you're right.

[01:02:57] Speaker 07:
Just because there's such a deferential standard, how is it possible for us to know how the board, how the CABC would have applied a different test?

[01:03:08] Speaker 00:
Well, Your Honor, you're right.

[01:03:09] Speaker 00:
We don't know how the court would have applied what I'm suggesting.

[01:03:11] Speaker 07:
And the only thing we're supposed to do under the mandamus is defer to what the CABC thinks.

[01:03:17] Speaker 07:
So I guess I'm not understanding why we should not be remanding if indeed we do change the standard.

[01:03:24] Speaker 00:
Well, if the court were to find that the standard was incorrect below, one option would be to remand.

[01:03:30] Speaker 00:
But again, that result would assume that the court

[01:03:36] Speaker 00:
Obviously, this is the assumption you're making, is that the court would find that the wrong standard was applied.

[01:03:41] Speaker 00:
But in this situation, again, I don't think that the Costanza standard was the incorrect one.

[01:03:45] Speaker 03:
That would really be upsetting.

[01:03:46] Speaker 03:
Just to return to my housekeeping question, who on the Rose supplemental submission, the folks listed there, does the government say is now moot?

[01:04:00] Speaker 00:
Your Honor, I believe in the Rose case,

[01:04:04] Speaker 00:
the answer to that question is going to be Mr. Daniels.

[01:04:08] Speaker 00:
And that the, with respect to Mr. Rose, there were actually two appeals and the board had docketed one on May 25th, 2017.

[01:04:20] Speaker 00:
The second had been certified.

[01:04:22] Speaker 00:
So I think it's just Mr. Daniels with respect to the Rose case that, and then Mr. Miller unfortunately passed away, but the other people.

[01:04:29] Speaker 03:
So just, you're saying just Daniels and Miller?

[01:04:32] Speaker 03:
Correct.

[01:04:32] Speaker 05:
Why wouldn't it be Rose?

[01:04:34] Speaker 05:
Well, because Rose doesn't have his decision yet.

[01:04:37] Speaker 05:
You understood.

[01:04:38] Speaker 05:
He's saying Rose is still good.

[01:04:39] Speaker 05:
Oh, Rose is still good.

[01:04:40] Speaker 05:
Rose is still in play.

[01:04:43] Speaker 00:
Rose is still in play, you're on.

[01:04:46] Speaker 06:
I misunderstood.

[01:04:47] Speaker 06:
Can I ask you another question with your indulgence, because I know we're over time?

[01:04:51] Speaker 06:
I am having trouble deciphering the mandamus portion with the question about Cassandra, Triac, and other stuff, from the due process stuff.

[01:05:03] Speaker 06:
I don't really know how Duke process is at play here.

[01:05:08] Speaker 06:
Like, for example, if we were to find that the lower court applied the long term, then we were going to vacate my man for them to apply track for the ones that are still out there.

[01:05:18] Speaker 06:
What do I do with this alternative Duke process claim?

[01:05:23] Speaker 06:
I don't understand how it's an alternative.

[01:05:25] Speaker 06:
I'm kind of confused about how these two are being argued as though they're separate and distinct.

[01:05:33] Speaker 00:
Well, Your Honor, I'm not sure that they entirely are separate and distinct.

[01:05:36] Speaker 00:
There is a due process.

[01:05:37] Speaker 00:
It is a separate question to argue a due process violation as it is to argue an unreasonable delay.

[01:05:43] Speaker 06:
I guess if we were to vacate and remand, does that moot the due process claim as far as you can tell?

[01:05:50] Speaker 06:
And the reason I say that is, what is the relief that stems from the due process violation as opposed to

[01:05:58] Speaker 00:
Well, Your Honor, I am struggling with myself to understand exactly what relief is being sought by the appellants here, because I think, as framed in their original petition, they're asking to eliminate delays, strike down regulations, et cetera.

[01:06:08] Speaker 06:
Let's just assume that their petition is asking for a board decision on their individual cases.

[01:06:13] Speaker 06:
Let's assume that's what it is.

[01:06:15] Speaker 06:
So what do we do with that due process piece, and how do you think it differs, if at all, from the mandamus?

[01:06:22] Speaker 00:
Well, Your Honor, under those facts, I don't think that they've met a burden of showing a clear and indisputable right and a due process violation, whether you apply a Matthews sort of balancing formulation or something else.

[01:06:34] Speaker 00:
The fact that there has been activity on these appeals.

[01:06:38] Speaker 00:
And this court held in lamb that the writ of mandamus should not be used as a substitute for the normal appellate procedures.

[01:06:45] Speaker 00:
And as long as that's the case, it would not be appropriate, whether you view this as a due process type of issue or something else,

[01:06:51] Speaker 00:
for the court to issue mandamus and order hearings, especially when you do.

[01:06:56] Speaker 06:
I know, but you're not delineating the two for me.

[01:06:58] Speaker 06:
And that's what I was kind of hoping to have you do, because I'm not sure.

[01:07:02] Speaker 06:
I'm honestly not sure what to do with due process as separate and distinct from a petition for mandamus for unreasonable delay.

[01:07:09] Speaker 06:
I'm just not.

[01:07:10] Speaker 00:
Well, Your Honor, I think you don't need to necessarily start with a due process type of Matthews balancing analysis.

[01:07:17] Speaker 00:
That's the sort of formulation that the appellants have advocated.

[01:07:19] Speaker 00:
Our view is that's not necessary.

[01:07:21] Speaker 00:
If you look at this court's decisions in Buchholz and Johnson, those are some non-published decisions that have dealt with denied due process-based delay claims of the type similar here through a typical mandamus type of analysis.

[01:07:36] Speaker 00:
They haven't gone through any sort of Matthews-based type of analysis.

[01:07:39] Speaker 00:
In our view, that sort of analytical chain makes a lot of sense.

[01:07:44] Speaker 07:
Can I just follow up?

[01:07:45] Speaker 07:
I'm sorry to belabor this, but you mentioned one thing.

[01:07:47] Speaker 07:
You said you weren't arguing for mootness.

[01:07:50] Speaker 07:
You were arguing, you were submitting that action had been taken in these cases for what purpose then?

[01:07:59] Speaker 07:
To show us what?

[01:08:02] Speaker 00:
Well, Your Honor, to the extent that the appellants that we've identified whose claims are moot, that the relief that they've sought has been obtained, it would be appropriate to dismiss those on the basis of mootness.

[01:08:13] Speaker 00:
That's the relief.

[01:08:14] Speaker 07:
Yeah, but no, no, no.

[01:08:15] Speaker 07:
But then you said, but those that haven't reached final decision

[01:08:19] Speaker 07:
You said you're not arguing that they are moot, but you submitted that there had been action taken.

[01:08:25] Speaker 07:
And I guess I'm not clear.

[01:08:27] Speaker 07:
And therefore?

[01:08:29] Speaker 00:
And therefore, on the basis of the court's abusive discretion review, that the fact that there has been action taken in those appeals reinforces the conclusion that they have not met their burden on the mandamus standard, that there is an adequate alternative.

[01:08:44] Speaker 07:
But the decision on mandamus

[01:08:46] Speaker 07:
preceded that.

[01:08:47] Speaker 07:
I mean, we're supposed to be reviewing the court, the CABC's decision on mandamus, as you told us, and whether or not they abused their discretion.

[01:08:55] Speaker 07:
So how are we supposed to take into account subsequent action taken if that wasn't before?

[01:09:01] Speaker 00:
Well, I would agree with that, Your Honor.

[01:09:02] Speaker 00:
You are limited to really the record before the Veterans Court.

[01:09:04] Speaker 00:
To the extent that you do consider these sort of post-petition developments, that's partially why we wanted to make the court aware of them to make sure, because they are relevant.

[01:09:13] Speaker 00:
But ultimately, you are asking about whether

[01:09:15] Speaker 00:
On the record, before the Veterans Court, there was an abuse of discretion.

[01:09:18] Speaker 07:
Thank you.

[01:09:18] Speaker 07:
That's just clear.

[01:09:19] Speaker 00:
Thank you very much.

[01:09:20] Speaker 07:
OK.

[01:09:20] Speaker 07:
Thank you.

[01:09:20] Speaker 07:
All right.

[01:09:21] Speaker 07:
We'll give you three more minutes if you need it.

[01:09:24] Speaker 07:
Can I just ask you if you have any light to shed on the question we were asking about this VA docketing and how that discrete process works?

[01:09:35] Speaker 02:
Your Honor, I do not.

[01:09:36] Speaker 02:
I'm sorry.

[01:09:37] Speaker 02:
I'm sorry.

[01:09:38] Speaker 07:
That's fine.

[01:09:40] Speaker 02:
I won't abuse your time.

[01:09:41] Speaker 02:
I promise.

[01:09:43] Speaker 02:
Judge Moore, the question you were asking about the interplay between due process and track slash Costanza.

[01:09:55] Speaker 02:
Except for the laws that govern the CAVC, we'd go into district court.

[01:10:01] Speaker 02:
We'd file suit under Cheney and say, this delay violates our due process.

[01:10:08] Speaker 02:
You can't wait seven years for an agency to make a decision.

[01:10:12] Speaker 02:
mandamus would be the way they would fix it.

[01:10:16] Speaker 02:
But Cheney looks at what the remedy is.

[01:10:19] Speaker 02:
What is your right to do?

[01:10:21] Speaker 02:
We'd say it's a new process.

[01:10:23] Speaker 02:
When we get over here in the CAVC, because the remedy is mandamus, they say you don't have the right to consider injunctions and that sort of thing.

[01:10:34] Speaker 02:
It has two different branches.

[01:10:36] Speaker 02:
One goes off and says, let's look at Cheney.

[01:10:39] Speaker 02:
Let's look at what is the right

[01:10:42] Speaker 02:
that is being sought.

[01:10:44] Speaker 02:
And we have two separate rights, two separate claims.

[01:10:48] Speaker 02:
One is not to be deprived of unreasonable delay, we say track, agency delay.

[01:10:55] Speaker 02:
And the other is under the due process clause.

[01:10:59] Speaker 02:
These men and women have a constitutional right not to be deprived of due process by this taking an extraordinary number of years.

[01:11:10] Speaker 02:
So those are the two different points there.

[01:11:13] Speaker 02:
I think somebody asked about Costanza.

[01:11:18] Speaker 02:
Costanza was expressly cited in Daniels, Jean, Mesguier, Miller, Moat, Rose, Cyphers,

[01:11:27] Speaker 02:
And the rule of it.

[01:11:29] Speaker 07:
They gave short trip.

[01:11:30] Speaker 07:
I mean, we don't know in any of those opinions, or at least most of them, what the nature of the analysis or the application of Costanza is.

[01:11:36] Speaker 02:
Because there's nothing written there.

[01:11:38] Speaker 02:
That's right.

[01:11:39] Speaker 02:
And I thought that that may be the point you're making.

[01:11:41] Speaker 02:
It occurs to me that if track and Costanza are the same, why in the world is the government fighting so hard for Costanza?

[01:11:50] Speaker 02:
And think about the analysis of a track, a case being applied

[01:11:57] Speaker 02:
to Mr. Miller.

[01:12:02] Speaker 02:
Mr. Miller was 80 years old.

[01:12:03] Speaker 02:
He was a World War II veteran when he petitioned for mandamus to get a final decision.

[01:12:11] Speaker 02:
Wouldn't you take into consideration him and his age?

[01:12:16] Speaker 02:
And the court didn't.

[01:12:17] Speaker 02:
The court just said.

[01:12:18] Speaker 03:
I'm sorry.

[01:12:19] Speaker 03:
I don't want to interrupt because you've got a short time.

[01:12:20] Speaker 03:
But I didn't want to ask you.

[01:12:21] Speaker 03:
I apologize for jumping in on you there.

[01:12:23] Speaker 03:
It's OK.

[01:12:24] Speaker 03:
But I just wanted to ask you one question.

[01:12:26] Speaker 03:
You're saying the track standard should be used, correct?

[01:12:31] Speaker 03:
Yes.

[01:12:32] Speaker 03:
Do you think that this court is free if it agrees with you?

[01:12:35] Speaker 03:
We can do one of three things, it seems to me.

[01:12:38] Speaker 03:
We can say Costanza is correct.

[01:12:40] Speaker 03:
That's correct.

[01:12:40] Speaker 03:
We can say, no, you could use track.

[01:12:42] Speaker 03:
Or no, we could say to the Veterans Court, you should use track factors x and y, but not all the rest.

[01:12:53] Speaker 03:
In other words, in your view, are we free

[01:12:55] Speaker 03:
to say to the Veterans Court, if we go that route, that it's not just all of track, but here's what we think, and track fits in the setting of the Veterans Court adjudication process, or the VA process.

[01:13:08] Speaker 02:
Absolutely.

[01:13:09] Speaker 02:
Though the other, the geographical circuits have pretty much embraced track, you could say, no, this is a little bit different animal.

[01:13:18] Speaker 03:
So you're saying we could tailor, in your view, if we agreed with you, to your position, we could tailor track

[01:13:25] Speaker 03:
to the circumstances of the VA process?

[01:13:28] Speaker 02:
As long as it takes into consideration what's going on with the veteran and not just what's going on with the VA.

[01:13:38] Speaker 02:
Yes, Your Honor.

[01:13:40] Speaker 02:
My time is up.

[01:13:45] Speaker 02:
There was a question about due process violating the separation of powers.

[01:13:52] Speaker 02:
It's due process is considered by the court.

[01:13:55] Speaker 02:
That is a court thing.

[01:13:57] Speaker 02:
You can say that this violates due process.

[01:14:01] Speaker 02:
And the circumstances may cause problems in the government.

[01:14:05] Speaker 02:
But your job is to consider whether due process has been violated.

[01:14:10] Speaker 02:
Thank you very much for that.

[01:14:12] Speaker 02:
We thank both sides.

[01:14:13] Speaker 07:
And the cases are submitted.