[00:00:00] Speaker 03:
Our first case for argument today is 23-1598, Wallace versus Collins.

[00:00:04] Speaker 04:
Please proceed.

[00:00:05] Speaker 04:
Good morning, Your Honors.

[00:00:09] Speaker 04:
May I please the court?

[00:00:10] Speaker 04:
Appellant is asking the court today to review the constitutionality and applicability of the issue exhaustion doctrine as it pertains to notices of disagreement that are filed with the VA that contain no specificity requirement and no notice to the veteran regarding an issue exhaustion requirement.

[00:00:30] Speaker 04:
At the outset, appellant would like to let the court know that we do not disagree with Andrews, but we are here to distinguish our case today from Andrews.

[00:00:40] Speaker 04:
Andrews dealt specifically with a Q claim.

[00:00:43] Speaker 04:
Clear and unmistakable error claims have a requirement that they must be pled with specificity.

[00:00:49] Speaker 04:
That is not the case for a notice of disagreement that is filed with the board in terms of a notice of disagreement.

[00:00:56] Speaker 04:
The form is silent on delineating specific allegations of error on any claim.

[00:01:01] Speaker 04:
The veteran is simply required to advise the VA, which is the three possible issues he's challenging, service connection, disability evaluation, or effective date.

[00:01:10] Speaker 04:
This is in contrast to a Q claim, which was decided by the Andrews Court, which does have a specificity pleading requirement.

[00:01:21] Speaker 04:
And that is how they got to the conclusion that the issue exhaustion was implied by 7252.

[00:01:28] Speaker 04:
Even though it's not expressly stated in 7252 that there is an issue requirement, because Q requires pleading with specificity, the court then came to the conclusion that, counsel, do you accept that our precedent allows the VA to apply or the Veterans Court, sorry, to apply issue exhaustion?

[00:01:52] Speaker 04:
Yes, with respect to Q claims.

[00:01:54] Speaker 04:
However, in SIMS, this exact issue was addressed by Justice O'Connor, who stated that issue exhaustion is particularly inappropriate when the regulation and procedures affirmatively suggest that specific issues need not be raised.

[00:02:08] Speaker 03:
But our Andrew's case expressly addressed SIMS and did not extend it to this circumstance.

[00:02:13] Speaker 03:
So as a panel, how are we to deal with that?

[00:02:16] Speaker 04:
The issues that are presented, the arguments that are presented today that are advanced today are novel.

[00:02:21] Speaker 04:
No petitioner has ever asserted this issue regarding specificity.

[00:02:27] Speaker 04:
The notice of disagreement does not require specific issues to be raised.

[00:02:31] Speaker 04:
So how can we then issue, exhaust, and punish a veteran who raises it later when they were never given notice or advised that there was an issue of exhaustion requirement at the outset and it's not actually required in the forms?

[00:02:44] Speaker 03:
Well, apart from the forms, but our cases have allowed this.

[00:02:49] Speaker 03:
So I don't understand how we get around that.

[00:02:52] Speaker 03:
Our cases have expressly allowed the Veterans Court to apply issue exhaustion.

[00:02:56] Speaker 03:
So as a panel, we can't overrule our own precedent.

[00:02:59] Speaker 04:
That was only because they were discussing a Q claim, which requires a pleading of specificity.

[00:03:06] Speaker 04:
Now we're discussing a notice of disagreement which has no specificity requirement.

[00:03:11] Speaker 04:
And so we're not asking, the appellant is not asking you to overturn

[00:03:14] Speaker 04:
Andrews, we're asking you to look at the arguments that are being advanced in this particular case, which is that, which has never been advanced before this court, never been addressed by this court, which is that the notice of disagreement, which is that Appendix 51, does not have a specificity requirement and it does not give notice to the veteran that there is an issue exhaustion requirement.

[00:03:38] Speaker 04:
In other words, the VA never lets the veteran know that they must exhaust their administrative remedy at the board.

[00:03:45] Speaker 04:
And so therefore, we have a due process and constitutionality issue when we get to CAVIC, the Veterans Court, and they say, you can't bring this issue here.

[00:03:57] Speaker 01:
Just on the form, you said 51.

[00:04:02] Speaker 01:
Is that a continuation of appendix 50 or not?

[00:04:06] Speaker 04:
Appendix 50 to 53, I believe, or 52.

[00:04:11] Speaker 04:
Let me just take a look here.

[00:04:14] Speaker 04:
Appendix 51 to 53, unless there was a scrivener's error.

[00:04:19] Speaker 01:
Well, so I'm looking at appendix 50.

[00:04:22] Speaker 01:
Does this have a form?

[00:04:24] Speaker 01:
This is all form number 101A2, right?

[00:04:26] Speaker 02:
Correct, John.

[00:04:27] Speaker 01:
Okay, so I'm looking at the first page of that, which has a whole bottom half is about specific issues to be appealed.

[00:04:38] Speaker 04:
Why is that not enough?

[00:04:40] Speaker 04:
That is only speaking to whether or not it's a issue regarding service connection, a disability evaluation, meaning the percentage that the veteran is rated at, or the effective date.

[00:04:54] Speaker 04:
So those are overarching.

[00:04:56] Speaker 04:
That's what the veteran must see.

[00:04:58] Speaker 04:
state in their notice of disagreement.

[00:05:00] Speaker 04:
They must say which of those three items they're contesting.

[00:05:02] Speaker 01:
That's because of the very small print parenthetical EG.

[00:05:07] Speaker 01:
Yeah?

[00:05:09] Speaker 04:
Correct.

[00:05:09] Speaker 04:
OK.

[00:05:09] Speaker 04:
So there's no, as opposed to Q, which was decided in the Andrews case, where there is actual law rooted in regulation and statute that says clear and unmistakable error claims must be

[00:05:24] Speaker 04:
Plead with specificity, meaning that you must make out an actual argument, and that is the only argument that the board will address.

[00:05:30] Speaker 04:
And if it's not raised before the board, then it can be exhausted.

[00:05:36] Speaker 04:
How do you distinguish Morris?

[00:05:40] Speaker 04:
So Morris is interesting because it relied on the precedent set in Andrews, but that precedent was only regarding Q claims.

[00:05:51] Speaker 04:
So in Morris, we have an issue where the appellant only argued very narrowly, unfortunately, that the argument regarding specificity and a nod was never raised, never addressed by the court, therefore.

[00:06:04] Speaker 04:
But Morris argued very specifically that constitutional issues were required to be adjudicated by the Veterans Court based on CAR.

[00:06:14] Speaker 04:
And this court found that because

[00:06:20] Speaker 04:
They had already found in Andrews that it was rooted in statute and regulation that issue of exhaustion could be applied, but only for Q that it therefore translated to the Morris case.

[00:06:33] Speaker 04:
So that's where I believe the error came in.

[00:06:36] Speaker 04:
Andrews set a very specific holding about Q only.

[00:06:40] Speaker 04:
I'm sorry.

[00:06:41] Speaker 03:
But you think the error came in, but Morris also binds us, right?

[00:06:45] Speaker 03:
It's not a non-prec case.

[00:06:49] Speaker 03:
It says it dealt with constitutional issues, right?

[00:06:53] Speaker 03:
And it said that issue exhaustion applied, didn't it?

[00:06:57] Speaker 04:
It did.

[00:06:57] Speaker 04:
But again, I think that it was misconstrued based on the holding in Andrews that says that, very specifically, it says issue exhaustion is applicable to Q. You think it was misconstrued by our court?

[00:07:10] Speaker 03:
We're bound by our court.

[00:07:11] Speaker 03:
That's the point I'm trying to make to you, which is the argument you're making, it seems to me,

[00:07:16] Speaker 03:
Something that we, as a panel, couldn't possibly do.

[00:07:19] Speaker 03:
What I'm asking is that the court... Even if Andrews isn't directly on point, it's a pretty strong point in the direction, and then you have Morris.

[00:07:29] Speaker 03:
Morris has extended Andrews even further.

[00:07:31] Speaker 03:
So you may not like it, but it seems like that's something you'd have to take up with our InVent court.

[00:07:37] Speaker 04:
Your Honor, I am not arguing that we're not trying to overturn Morris or say that it's bad law or that's not what's happening here.

[00:07:45] Speaker 04:
What I'm saying to you is that today, Appellant is advancing novel arguments.

[00:07:48] Speaker 03:
But I don't see them.

[00:07:49] Speaker 03:
You haven't convinced me.

[00:07:50] Speaker 03:
In Morris, we expressly said there's a specificity requirement grounded in 38 USC 7253.

[00:07:56] Speaker 03:
That's the statute applicable to your case.

[00:07:59] Speaker 03:
So that specificity requirement that you're taking issue with in Andrews,

[00:08:03] Speaker 03:
applies equally to your case by virtue of our Morris decision.

[00:08:07] Speaker 03:
You might not like that law, but we're bound by that law.

[00:08:10] Speaker 04:
But the problem is, is that it's not given notice to the veteran and the notice of disagreement.

[00:08:14] Speaker 04:
That's where the issue comes in.

[00:08:15] Speaker 03:
I understand you have a problem with that law, but that doesn't get beyond the fact that we can't disregard our own binding precedent.

[00:08:25] Speaker 04:
Again,

[00:08:26] Speaker 04:
It's one thing for the regulation to state that there is a specificity requirement, but the notice says that the specificity only has to do with service connection, disability evaluation, and effective days.

[00:08:38] Speaker 04:
And as a constitutional right and due process right, the veteran has to be notified, and that's specifically what Justice O'Connor

[00:08:47] Speaker 04:
She specifically spoke to that saying that it's inappropriate if the claimant is not informed of the notice, excuse me, of the issue exhaustion requirement.

[00:09:00] Speaker 04:
So regardless of what the statute of the regulation says about specificity, the notice tells the veteran that they only have to dispute one of three things, service connection, evaluation, or effective date.

[00:09:10] Speaker 04:
So we have a notice issue and we have a due process issue where it relates to,

[00:09:15] Speaker 04:
How is the veteran supposed to know that they need to make a specific argument if it's not in the form that they use to file the appeal in the first place?

[00:09:28] Speaker 03:
Anything further?

[00:09:30] Speaker 03:
Okay, let's hear from the government.

[00:09:32] Speaker 04:
I'd like to reserve the remaining.

[00:09:33] Speaker 03:
Of course, of course.

[00:09:41] Speaker ?:
Thank you.

[00:09:50] Speaker 00:
Good morning, Your Honor.

[00:09:53] Speaker 00:
May I please the court, on behalf of the Secretary Douglas Collins, we ask that this court affirm the Veterans Court's decision.

[00:09:58] Speaker 00:
Respondent in his opening presentation has shifted the ball.

[00:10:04] Speaker 00:
The content of the notice, the specificity of the notice, the timing of the notice, is not before this court on appeal.

[00:10:12] Speaker 00:
The only issue that Mr. Wallace has raised on appeal to this court

[00:10:16] Speaker 00:
was the application, the constitutionality of the exhaustion requirement as exercised by the Vessions Court and its application in this case.

[00:10:25] Speaker 00:
We're not here today.

[00:10:25] Speaker 00:
We didn't brief the specificity of the notice or the timing of the notice.

[00:10:32] Speaker 00:
The issues just for the court's reference are set forth in the respondents, the petitioners brief at pages one and two.

[00:10:37] Speaker 00:
On the note, with respect to the actual issue on appeal before this court,

[00:10:47] Speaker 00:
issue exhaustion.

[00:10:48] Speaker 00:
This court's precedent is clear.

[00:10:51] Speaker 00:
Morris found by this court in 2022 that the Veterans Court has discretion to invoke issue exhaustion even in constitutional cases as raised here due process challenge.

[00:11:03] Speaker 00:
The court distinguished Carr versus Saul, it distinguished Sims versus Atful.

[00:11:12] Speaker 00:
Morris itself did not even really rely on Andrews

[00:11:15] Speaker 00:
It was not a cue claim.

[00:11:16] Speaker 00:
It was a claim much more closely associated with the claim on appeal in this court.

[00:11:21] Speaker 00:
And it is binding precedent.

[00:11:23] Speaker 00:
The Veterans Court has discretion to apply issue exhaustion in appropriate circumstances.

[00:11:29] Speaker 00:
Now, Mr. Wallace has argued in the alternative that the Veterans Court's application of that exhaustion doctrine was an abuse of discretion or erroneous.

[00:11:41] Speaker 00:
The Veterans Court's finding is a fact.

[00:11:42] Speaker 00:
An application of law to fact does not appeal to this court, as the panel, I'm sure, is well aware.

[00:11:49] Speaker 00:
Mr. Wallace does not challenge any legal aspects of that application, meaning the Veterans Court, in applying exhaustion, applied the correct legal standard, the MAGIT balancing test.

[00:12:01] Speaker 00:
Mr. Wallace does not contest that, nor does Mr. Wallace make a

[00:12:07] Speaker 00:
legally competent argument that there's an exception to exhaustion for constitutional cases, which Morris expressly rejected.

[00:12:13] Speaker 01:
Do you understand the blue brief to be arguing that?

[00:12:26] Speaker 01:
It's actually unconstitutional to apply issue exhaustion to this category of cases.

[00:12:36] Speaker 01:
There's an underlying constitutional claim, which you

[00:12:40] Speaker 01:
I think quite rightly say is not here about whether the notice given before the claim was filed is constitutionally insufficient.

[00:12:50] Speaker 01:
But do you understand the blue to be arguing that it's not just an argument that issue exhaustion as a

[00:12:57] Speaker 01:
I don't know, common law-ish doctrine shouldn't, and maybe even statutorily based, shouldn't be available here, here being a kind of class of cases maybe, but also that it would be unconstitutional for that to happen.

[00:13:15] Speaker 00:
No, Your Honor, I responded to not read the petitioner's brief.

[00:13:20] Speaker 01:
He's not the respondent.

[00:13:23] Speaker 00:
We did not read Mr. Wallace's brief.

[00:13:26] Speaker 00:
to directly argue the constitutionality of exhaustion.

[00:13:30] Speaker 00:
Petitioners opening brief talked about Carr versus Saul and Sims versus Atful being controlling on this court.

[00:13:37] Speaker 00:
Those are social security cases that are distinguished by this court.

[00:13:44] Speaker 00:
But petitioner argued that those cases were somehow binding and would

[00:13:49] Speaker 00:
prevent the Veterans Court from exercising exhaustion.

[00:13:51] Speaker 01:
They would certainly be binding if they were applicable.

[00:13:53] Speaker 00:
If they were applicable, right.

[00:13:55] Speaker 00:
But as this Court found in Morris and Maggett and Ledford, it was not.

[00:13:58] Speaker 01:
Did those decisions rest in part on a constitutional basis?

[00:14:07] Speaker 01:
That is, did either one of them say it would be not just a bad idea

[00:14:13] Speaker 01:
to apply issue exhaustion in those circumstances, but that it would be unconstitutional?

[00:14:23] Speaker 00:
I can't say with certainty as I stand here, but I can say that the critical fact, say, in Carr versus Saul was that the exhaustion doctrine in the social security context was a judicially created doctrine.

[00:14:36] Speaker 00:
There was no statutory or regulatory hook, which is the critical difference in the veterans context, as this court has explained in Morris.

[00:14:43] Speaker 00:
Ledford and Maggot, that in the veterans context, there is a statutory and regulatory hook for exhaustion.

[00:14:50] Speaker 00:
And that's what makes the veterans context different from the social security context, and thus, the binding precedent in this instance, Morris, Maggot, and Ledford, as opposed to Carr versus Saul, or Sims versus Appel.

[00:15:06] Speaker 03:
Anything further?

[00:15:07] Speaker 03:
Nothing further, thanks.

[00:15:08] Speaker 03:
Okay, thank you, Council.

[00:15:13] Speaker 04:
Your Honor, I, Pellin addressed the issue of the notice, excuse me, the notice of disagreement and the lack of a specificity requirement and the unconstitutionality of applying issue exhaustion when no notice was given to the veteran about it and there's no specificity requirement in the document.

[00:15:32] Speaker 04:
On four page, three separate pages, she spent, there's three separate pages, excuse me,

[00:15:37] Speaker 04:
that spend talking about the unconstitutionality and the due process implications that arise from the very situation that Justice O'Connor talked about in Sims, which is that the arbitrary and contradictory nature of issue exhausting a decision.

[00:15:51] Speaker 04:
Oh, I'm sorry.

[00:15:54] Speaker 01:
I keep waiting for you to give me the page numbers.

[00:15:57] Speaker 04:
Oh, the appellants brief, page 16, page 21, and page 22.

[00:16:07] Speaker 01:
Okay.

[00:16:09] Speaker 04:
You can continue.

[00:16:09] Speaker 04:
Thank you, Your Honor.

[00:16:12] Speaker 04:
Justice O'Connor specifically stated in SIMS, and this was reiterated in CAR, that using issue exhaustion when the agency fails to impose a specificity requirement or notify a claimant of an issue exhaustion requirement is arbitrary and contradictory.

[00:16:31] Speaker 04:
And that is what we have here.

[00:16:33] Speaker 04:
And an appellant's counsel, an appellant spent three pages on that in an appellant's brief.

[00:16:37] Speaker 04:
And the secretary never addressed those arguments about the notice, the notice of disagreement and the fact that there's no notice to the veteran.

[00:16:47] Speaker 04:
Lastly, I just want to also point out that in distinguishing this case from Morris, in Morris, the court did weigh the interests of the veteran.

[00:17:00] Speaker 04:
They weighed the interest in the veteran in a way that was satiable.

[00:17:06] Speaker 04:
In this case, the Veterans Court did not touch upon the interest of the veteran versus the interest of the agency.

[00:17:13] Speaker 04:
It never even came up.

[00:17:15] Speaker 04:
The Veterans Court just simply talked about the fact that it would be a huge burden on the VA, but never actually discussed how it would affect the veteran and his claims and other veterans that come after him.

[00:17:29] Speaker 04:
And that is what Morris rests on, is the fact that it must be flushed out, a weighing of the interest.

[00:17:37] Speaker 04:
And so at a minimum, we have at least that issue where the court did not do that here.

[00:17:43] Speaker 04:
They just did not discuss the interest of the veteran.

[00:17:45] Speaker 04:
They only talked about the agency.

[00:17:49] Speaker 04:
So, if there's no further questions, we just ask that the court, you know, consider and address the novel arguments here, made today here regarding the notice of disagreement and the lack of specificity and the lack of notice to the veteran among the other arguments made and reverse and or remand the matter.

[00:18:07] Speaker 04:
Okay.

[00:18:08] Speaker 04:
Thank both counsels.

[00:18:09] Speaker 04:
This case is taken under submission.

[00:18:10] Speaker 04:
Thank you.