[00:00:00] Speaker 03:
We will hear argument next in case number 241833, Young against Collins.

[00:00:07] Speaker 03:
Mr. Kouhaki.

[00:00:08] Speaker 00:
Thank you, Your Honor.

[00:00:09] Speaker 00:
May it please the court?

[00:00:10] Speaker 00:
On behalf of Mr. Young, I want to thank this court for the opportunity to present his appeal.

[00:00:14] Speaker 00:
This appeal turns on whether the board's decision, declining to vacate the prior decision, is a final decision under 38 USC 511A.

[00:00:26] Speaker 00:
I want to start by discussing this court's decision in Harms v. Nicholson and explain why our case is distinguishable, and then I'll explain why the board issued a final decision in 511A.

[00:00:37] Speaker 00:
In Harms, the veterans appealed both the underlying board decision he sought to vacate and the motion in an attempt to start, as the court said, a new the 120-day jurisdictional limit on appeals.

[00:00:51] Speaker 00:
This court affirmed the Veterans Court decision because the motion to vacate was filed more than 120 days after that decision.

[00:00:59] Speaker 00:
This court emphasized that even if the motion to vacate is granted, all it does is nullify the prior board decision.

[00:01:05] Speaker 00:
And there was nothing on the merits of the prior decision to review in an appeal.

[00:01:11] Speaker 00:
But here, Mr. Young does not seek review of the underlying board decision.

[00:01:15] Speaker 02:
But why does that matter here?

[00:01:16] Speaker 02:
Because in harms, the court, well,

[00:01:21] Speaker 02:
initially the Veterans Court, and then ultimately this court, said that neither of those orders was appealable.

[00:01:29] Speaker 02:
And that here, only one of the two orders that were said to be unappealable and harms is at issue.

[00:01:37] Speaker 02:
But did the harms not expressly say that the motion to vacate

[00:01:43] Speaker 02:
in addition to the prior decision, was unappealable.

[00:01:48] Speaker 02:
And why isn't that binding on us as a panel?

[00:01:52] Speaker 00:
It did, Your Honor.

[00:01:53] Speaker 00:
But looking at the context of that order and what was presented to both the Veterans Court and this court, that ruling was within the context that the veteran was seeking review of the board's decision and the motion to vacate.

[00:02:08] Speaker 00:
And because of that.

[00:02:09] Speaker 02:
But why does that matter?

[00:02:11] Speaker 00:
It matters because.

[00:02:13] Speaker 00:
The 120-day deadline to file the appeal had passed.

[00:02:21] Speaker 00:
And what Mr. Harms was attempting to do, or at least the way that the pleadings were described in the decision,

[00:02:29] Speaker 00:
Mr. Harms was attempting to get that board decision before the court after the 120 days had elapsed by virtue of filing a motion to vacate that decision.

[00:02:40] Speaker 00:
And so this court was focused on the fact that the board's decision was no longer reviewable and filing a motion to vacate doesn't somehow

[00:02:51] Speaker 00:
to give them another 120 days to appeal that board decision.

[00:02:55] Speaker 02:
Isn't that exactly what would happen here if the motion to vacate were appealable and were granted?

[00:03:03] Speaker 02:
You would end up saying that previous decision is vacated.

[00:03:08] Speaker 02:
We're starting anew.

[00:03:09] Speaker 02:
And that would be exactly the relief that harm sought.

[00:03:15] Speaker 00:
It would not, Your Honor, because if the board grants the motion to vacate,

[00:03:19] Speaker 00:
they will be forced to issue a new decision that would then start another 120-day deadline to appeal.

[00:03:26] Speaker 00:
And Harms discussed that.

[00:03:28] Speaker 00:
Essentially, the veteran would be getting the benefit of vacating that decision, issuing a brand new decision that could then be appealed.

[00:03:37] Speaker 02:
That would have happened in Harms.

[00:03:40] Speaker 00:
No, Your Honor, because again, Harms was attempting to appeal the un-vacated.

[00:03:45] Speaker 02:
But set aside, suppose that Harms had had

[00:03:48] Speaker 02:
two completely different sections of his brief.

[00:03:51] Speaker 02:
He said, number one, I want to appeal that original decision.

[00:03:56] Speaker 02:
And number two, I want to appeal the motion to vacate.

[00:04:00] Speaker 02:
And the court had said in a proceeding prior to the actual hearing on that second issue, we're just not even going to hear that first argument.

[00:04:10] Speaker 02:
It's clearly wrong.

[00:04:11] Speaker 02:
You're clearly out of time.

[00:04:13] Speaker 02:
We'll focus entirely on the second.

[00:04:16] Speaker 02:
Then you would agree that in that setting,

[00:04:18] Speaker 02:
This case would be identical to harms, right?

[00:04:27] Speaker 00:
Well, I'm not sure that I would agree with that statement, Your Honor, because I think that

[00:04:36] Speaker 00:
Harms didn't look at that situation.

[00:04:39] Speaker 00:
Harms looked at trying to bring in the board's decision, piggybacking on the motion to vacate and seeking review of the board's decision that had already been final, that had not been appealed.

[00:04:51] Speaker 00:
Here, Mr. Young is looking to obtain judicial review of the board's determination that there was no due process violation and that it would not vacate the decision.

[00:05:04] Speaker 00:
That is a final decision under 511A.

[00:05:07] Speaker 00:
And I think that when we look at locomotive engineers, which was discussed extensively in harms,

[00:05:17] Speaker 00:
There's support in that decision for our position.

[00:05:22] Speaker 00:
Locomotive Engineers was focused on a motion for reconsideration based on essentially the same record, essentially the same facts, and it was looking for the appeals court

[00:05:36] Speaker 00:
to review for just simply a higher standard of error.

[00:05:40] Speaker 00:
And the Supreme Court said that doesn't make any sense.

[00:05:43] Speaker 00:
But the Supreme Court, what they did in locomotive engineer, was distinguished between... Yes, Your Honor.

[00:05:48] Speaker 04:
Do you agree that Mr. Young is not seeking equitable toll, right?

[00:05:53] Speaker 04:
You agree with that?

[00:05:54] Speaker 00:
He is not, Your Honor.

[00:05:55] Speaker 00:
No.

[00:05:55] Speaker 04:
I still feel like you didn't really answer Judge Bryson's hypothetical directly.

[00:06:00] Speaker 04:
I heard you say that's not what happened in Herms, but I didn't feel like there was a

[00:06:04] Speaker 04:
a clear answer to what Judge Bryson posed to you.

[00:06:07] Speaker 04:
Could you go back to that?

[00:06:09] Speaker 00:
So as I understand the question, Your Honor, if there were two different determinations by the board, by the agency, that we're not going to consider this, or I'm sorry, by the Veterans Court, that we're not going to consider the review of the board's decision and then looking specifically at the

[00:06:28] Speaker 00:
motion to vacate determination.

[00:06:32] Speaker 00:
So the second part would be what Mr. Young is asking this court to address.

[00:06:37] Speaker 00:
And again, that has not been, as far as we can tell, dealt with in any presidential decision by any court.

[00:06:43] Speaker 00:
What all of the veterans have done in the case law that we could find

[00:06:47] Speaker 00:
was attempt to, through reconsideration or vacatur, bring the unappealed board's decision before the Veterans Court.

[00:06:57] Speaker 00:
And time and again, the Veterans Court has said, no, you have 120 days.

[00:07:01] Speaker 00:
You should have done it during that time.

[00:07:04] Speaker 00:
And distinguishing between that or where some motion was filed within that time to delay the start of that.

[00:07:12] Speaker 00:
But does that answer the question, Your Honor?

[00:07:16] Speaker 00:
I think that's what I'm going to get today, so I will allow you to... Well, I really do want to answer that question because I think it's the linchpin to this appeal is that none of the case law has directly spoken to whether a standalone motion to vacate determination can be appealed to the Veterans Court or to this court.

[00:07:40] Speaker 00:
And that's why HARMS is distinguishable, because it has not answered that question.

[00:07:47] Speaker 00:
And we believe that it is a final decision, and it is appealable under the Veterans Court's jurisdictional statute, and it really has to be.

[00:07:57] Speaker 04:
Again, turning back... So if we believe that HARMS controls the situation, do you agree that you lose?

[00:08:06] Speaker 00:
Yes, Your Honor.

[00:08:07] Speaker 00:
I think if this court reads harms to cover this specific situation, then yes, we would be bound by that determination.

[00:08:18] Speaker 03:
Can I ask this?

[00:08:19] Speaker 03:
So this regulation has some similarities to either of two other VA remedies that

[00:08:33] Speaker 03:
can be sought very long after an underlying decision.

[00:08:38] Speaker 03:
One is CUE claims, and the other is reopening claims, at least the particular 3.156C reopening claim where the underlying error was failure to get service medical records.

[00:08:56] Speaker 03:
Both of those involve, first of all, mandatory

[00:09:02] Speaker 03:
language, the CUE mandatory language.

[00:09:07] Speaker 03:
So a quite specific congressional choice to make a CUE denial subject to chapter 72.

[00:09:19] Speaker 03:
And the reopening also doesn't have May language, which the current regulation at issue here does have.

[00:09:31] Speaker 03:
And second, this claim is one unlike the reopening for new and material evidence that was fully available at the time of the 1999 board decision.

[00:09:50] Speaker 03:
Why do not those distinctions reinforce or justify the broader reading, let's call it, of our harm's decision in line with what the Supreme Court said in the Brotherhood of Locomotive Engineers, which was pretty careful to distinguish claims that assert

[00:10:16] Speaker 03:
some newly available basis, as opposed to just error that was fully available at the time.

[00:10:26] Speaker 00:
Right, Your Honor.

[00:10:27] Speaker 00:
And Locomotive Engineer did distinguish between those, and we think that the VA's regulation for vacatur falls under that second part of the distinguished cases, where there's a different basis for

[00:10:45] Speaker 03:
Well, how does the allegation, even if it is properly characterized as a due process allegation, which the board said it wasn't, and it's at least a little hard superficially to see why this is a failure to carry out a remand instruction, is a due process problem?

[00:11:09] Speaker 03:
But even assuming that it is, that was equally true in 1999.

[00:11:16] Speaker 03:
It was nothing more.

[00:11:18] Speaker 03:
There's no new information that the board would now be considering under this regulation to say, oh, this really quite changes the picture.

[00:11:29] Speaker 00:
That's true, Your Honor.

[00:11:30] Speaker 00:
But when you look at what the Veterans Court does on direct appeal versus under this regulation, this regulation requires a specific finding of what is or is not a due process error, which is a legal determination.

[00:11:44] Speaker 00:
And when the Veterans Court reviews the decision, it's not looking necessarily at due process.

[00:11:50] Speaker 00:
And when assessing whether an error has been made, if the court can find a lesser basis, it's going to bypass the constitutional issue.

[00:12:00] Speaker 00:
And so the case law that was discussed in the motion to vacate guarantees adherence with the remand order.

[00:12:08] Speaker 00:
and that would have formed the basis or there could have been something else.

[00:12:12] Speaker 00:
So the regulation 20.1000 injects a new

[00:12:21] Speaker 00:
basis for setting aside vacating that prior decision and requires at least some assessment of what is a due process error is what the veteran fled here doesn't fall within that.

[00:12:33] Speaker 03:
I mean the regulation that was an issue in Brotherhood of Locomotive Engineers is extremely similar to this.

[00:12:41] Speaker 03:
It says that the ICC may

[00:12:45] Speaker 03:
I forget whether the word is reopen or something, but let's call it reopen.

[00:12:50] Speaker 03:
An underlying order for some new information, but also just for material error, I think, was the term.

[00:12:59] Speaker 03:
And the court was careful to say that it had in front of it only a claim of material error with this May language, which is quite like the 20.1,000 language.

[00:13:16] Speaker 00:
We think that these are more akin to the other errors that the locomotive engineers were discussing that suggested, and again, it wasn't the part of the decision here, but it was suggesting and actually looking back on prior cases where it had performed judicial review, and those cases were new evidence, different facts, and the court

[00:13:45] Speaker 00:
says there's good reason distinguishing between the two in review and denial to reopen for new evidence or change circumstances is unavailable.

[00:13:53] Speaker 00:
The petition will have to have been deprived of all opportunity for judicial consideration.

[00:13:57] Speaker 00:
And this regulation is a standalone regulation that imposes or that supports vacature, whereas a direct appeal to the Veterans Court is simply implementing whatever other statutes or regulations that apply under 7104A.

[00:14:15] Speaker 00:
Again, this is a decision that was presented or was made by the secretary under 511A.

[00:14:23] Speaker 00:
And so there's

[00:14:25] Speaker 00:
There are different considerations when looking at what the courts are going to be reviewing.

[00:14:31] Speaker 00:
One of the primary ones would be defining what is a due process, or at least under the facts as found by the board in its decision, whether that satisfies a due process violation or not.

[00:14:43] Speaker 02:
Would you agree that just a motion for reconsideration in the conventional sense may not be filed outside

[00:14:54] Speaker 02:
if filed outside the 120-day period would not be reviewable.

[00:15:00] Speaker 00:
I think, Your Honor, that the case law is unclear.

[00:15:05] Speaker 00:
In most cases, yes, that is true.

[00:15:09] Speaker 00:
But again, locomotive engineers distinguishes between a motion for reconsideration, which was the basis of that appeal, where the appellant is simply asking for a new look for a heightened level of error, as I would describe it.

[00:15:25] Speaker 00:
And Judge Tron, I think you said,

[00:15:30] Speaker 00:
I can't find it, but it's essentially a really bad error.

[00:15:34] Speaker 00:
Material error.

[00:15:36] Speaker 00:
The VA's regulation talks about

[00:15:41] Speaker 00:
clear error or some obvious error, I think is how they describe it.

[00:15:45] Speaker 00:
But the statute, I'm sorry, the Regulation for Reconsideration 20.1001 gives a other basis, which is, again, as locomotive engineers talked about, new evidence and some other things.

[00:16:00] Speaker 00:
It's unclear in the case file whether a recon under those circumstances would be appealable or not.

[00:16:06] Speaker 00:
We obviously think they would be, but those are more in line with what the motion for vacatur is, as opposed to just simply asking the board to look again to see if you're really sure that there was no error made.

[00:16:25] Speaker 02:
So as long as somebody says they really made a whopper in this case, then that

[00:16:31] Speaker 02:
there would be jurisdiction even if it was filed 10 years after the fact.

[00:16:34] Speaker 00:
I'm sorry, Your Honor.

[00:16:35] Speaker 00:
Can you see?

[00:16:35] Speaker 02:
Even if it was filed 10 years after the fact, it would still be within the jurisdiction of the court.

[00:16:43] Speaker 00:
I'm not sure, Your Honor.

[00:16:45] Speaker 00:
I think that there is support.

[00:16:46] Speaker 02:
One of the interests that we think about a lot is certainty.

[00:16:51] Speaker 02:
And where you're talking about jurisdictional lines, certainty has great value.

[00:16:57] Speaker 02:
And it's what has always tempted

[00:17:01] Speaker 02:
courts to accept the notion that certain kinds of time limits are jurisdictional.

[00:17:06] Speaker 02:
That's not a popular view these days at the Supreme Court.

[00:17:10] Speaker 02:
And yet, when we say that any form of motion for reconsideration can be characterized in a way that will give me jurisdiction to reopen the entire proceeding is one that at least comes with

[00:17:30] Speaker 02:
a heavy burden of persuasion.

[00:17:32] Speaker 00:
I completely understand, Your Honor, and I agree with that sentiment.

[00:17:36] Speaker 00:
But I think when we read locomotive engineers, the Supreme Court was not focused on the fact that it was filed, particularly the first petition, that it was filed more than 60 days after the order.

[00:17:46] Speaker 00:
It was focused on the fact that it was asking the court or the board to just look again and make sure there was no error.

[00:17:56] Speaker 00:
Thank you.

[00:17:56] Speaker 03:
Thank you.

[00:18:06] Speaker 01:
Morning, Your Honors, and may it please the court.

[00:18:09] Speaker 01:
HARMS controls the decision in this case.

[00:18:12] Speaker 01:
It was exactly the same situation that we're facing here.

[00:18:15] Speaker 01:
There was a motion to vacate that was filed more than 120 days after the initial board decision.

[00:18:22] Speaker 01:
It was denied.

[00:18:23] Speaker 01:
The veterans sought appeal of that denial.

[00:18:26] Speaker 01:
And this court said that it was not an appealable decision.

[00:18:31] Speaker 01:
This court explicitly referenced and said,

[00:18:36] Speaker 01:
that neither a motion for reconsideration nor a motion to vacate comprise a new board decision on the merits of the original claims, meaning they're not final board decisions that can be appealable.

[00:18:50] Speaker 01:
Council tried to make a distinction between HARMS and this case and that in HARMS there was an appeal of both the underlying decision, merits decision, and the decision on the motion to vacate.

[00:19:04] Speaker 01:
But both of them were decided by this court in harms.

[00:19:09] Speaker 01:
Both were addressed.

[00:19:10] Speaker 01:
The court did not say, no, you cannot appeal the underlying merits decision.

[00:19:15] Speaker 01:
But yes, you can appeal the reconsideration decision.

[00:19:18] Speaker 01:
This court explicitly addressed both of them.

[00:19:21] Speaker 01:
So there's no distinction here between harms in this case.

[00:19:27] Speaker 02:
If you look at the original,

[00:19:33] Speaker 02:
Q regulations.

[00:19:35] Speaker 02:
And I'm talking about before.

[00:19:36] Speaker 02:
I know the statute now governs Q since 1997, I guess.

[00:19:41] Speaker 02:
But between 1992, when the Veterans Court got going, and 1997, Q was entirely a product of regulation, I believe.

[00:19:50] Speaker 02:
Am I correct on that?

[00:19:53] Speaker 02:
And yet, the Veterans Court said very early on that denial of Q is reviewable.

[00:20:04] Speaker 02:
And they didn't have much trouble saying that that was reviewable.

[00:20:10] Speaker 02:
And then the Russell case, one of the first cases out of the Veterans Court stood for that proposition.

[00:20:18] Speaker 02:
Why doesn't the analysis of the appealability of the denial of Q under the regulation, why isn't that parallel to our situation?

[00:20:28] Speaker 01:
Q is a collateral attack on the merits of a decision.

[00:20:32] Speaker 01:
This is a procedural issue.

[00:20:34] Speaker 01:
Here we're talking about whether there was due process and the issue raised was our due process consideration and that was denied.

[00:20:41] Speaker 01:
Q is a collateral attack on the merits.

[00:20:44] Speaker 01:
It inherently has to be on the merits because

[00:20:47] Speaker 01:
In order to establish Q, you have to show that the result on the merits was manifestly different, but for the error.

[00:20:55] Speaker 01:
So Q, as you said originally was by regulation, now is by statute, has been explicitly set out by VA and then later by Congress as an exception to the rule of finality.

[00:21:08] Speaker 02:
Right.

[00:21:09] Speaker 02:
But when VA set it out, VA can't alter the jurisdictional statutes.

[00:21:15] Speaker 02:
Congress can.

[00:21:16] Speaker 02:
So during that period in which it was a regulation, the court had to say, well, it's a regulation, but this fits within an exception, in effect, to the limits on our jurisdiction.

[00:21:32] Speaker 02:
And they did so.

[00:21:33] Speaker 02:
So you're saying the distinction is that Q went to the merits as opposed to the process?

[00:21:39] Speaker 01:
Yes, that makes sense.

[00:21:40] Speaker 01:
And that's consistent with this court's decision in Maggott, in which a final decision.

[00:21:46] Speaker 02:
Maggott?

[00:21:46] Speaker 02:
Is the one you're citing?

[00:21:47] Speaker 01:
Which one?

[00:21:48] Speaker 02:
Maggott.

[00:21:48] Speaker 01:
Maggott, yeah.

[00:21:49] Speaker 01:
So in this decision in Maggott, this court said that a board decision, a final board decision that's appealable under 7252, is one that's granting or denying benefits on the merits, which a Q decision essentially is.

[00:22:04] Speaker 01:
To prevail in Q, you're looking at the merits.

[00:22:07] Speaker 01:
So it makes sense under magic that that would be an appealable decision under 7252.

[00:22:13] Speaker 01:
Here, this court explicitly said in harm that this type of decision on the motion to vacate is not a decision on the merits and therefore not appealable.

[00:22:24] Speaker 01:
So that distinction makes sense even under the jurisdictional statute and the way that this court has interpreted 7252's reference to a decision on the board.

[00:22:38] Speaker 04:
opposing counsel spent some time telling the distinctions that he thought were relevant in terms of locomotive engineers.

[00:22:49] Speaker 04:
Do you want to speak to how you think locomotive engineers may support your arguments?

[00:22:55] Speaker 01:
I think locomotive engineers is on point in that the overriding concern in that case is

[00:23:02] Speaker 01:
It was an order on reconsideration and that it was unreviewable because it was trying to bring before the court sort of the underlying decision.

[00:23:13] Speaker 01:
And the concern and the way that we raise locomotive engineers in our brief is this concern about perpetual review.

[00:23:22] Speaker 01:
That's right.

[00:23:23] Speaker 01:
And you were talking about certainty and understanding jurisdiction and that kind of thing.

[00:23:29] Speaker 01:
And the possibility here is that a veteran could at any time file a motion to vacate

[00:23:37] Speaker 01:
And that could reopen, essentially, the merits issues at any time.

[00:23:42] Speaker 01:
And what the court was concerned about in locomotive engineers, and that also applies here, is this problem with perpetual review.

[00:23:50] Speaker 01:
Yes, in the veteran system, there are a couple of very limited, very specific instances, Q being one and 3.156 being another, where you can reopen a final case for certain reasons.

[00:24:07] Speaker 03:
under Why isn't twenty point one thousand?

[00:24:13] Speaker 03:
Just that due process no personal hearing extremely limited grounds so I mean and this claim may not be actually Within those grounds, but that's kind of tomorrow's issue if this case were to go forward

[00:24:33] Speaker 03:
Why isn't this similar in that respect?

[00:24:36] Speaker 03:
It's not even as broad as material error in the locomotive engineers.

[00:24:45] Speaker 01:
Again, I make that merits versus procedure distinction because it's a procedural issue.

[00:24:50] Speaker 01:
It just doesn't fall within the Veterans Court's jurisdiction under 7252 because it's just not a decision either granting or denying a benefit.

[00:25:00] Speaker 01:
I mean, Congress certainly, if it wanted to, could allow this to be a third exception, but certainly this court in Cook said there were only two exceptions at the time.

[00:25:10] Speaker 01:
They're a little bit different now.

[00:25:11] Speaker 01:
that there were only two exceptions to the finality, q, and at that time, new material evidence.

[00:25:17] Speaker 01:
Now, that doesn't exist.

[00:25:19] Speaker 03:
But how does 3.156c fit into that?

[00:25:24] Speaker 01:
3.1560 is the same thing.

[00:25:27] Speaker 01:
It goes to the merits of the case.

[00:25:29] Speaker 01:
So if there were service records that were not before the board or VA at the time, and then they come back in, that goes to the merits.

[00:25:41] Speaker 02:
Isn't that more of a procedural problem?

[00:25:45] Speaker 02:
You've divided the universe into process and substance, a division that is often suspect.

[00:25:52] Speaker 02:
Why is that not on the procedural side of the divide?

[00:25:57] Speaker 01:
Because it's factual evidence that wasn't, the evidence itself is going to be reconsidered in the 3.156 claim and ultimately there could be a decision on the merits.

[00:26:12] Speaker 01:
Here, all that prevailing on a motion to vacate gives you is just another chance to have the proper procedures.

[00:26:21] Speaker 01:
So it's different in that respect, in that ultimately you're getting factual evidence back in the record under 3.156C.

[00:26:31] Speaker 03:
Under 3.156, not C, but just the general reopening, when you file a reopening claim and you say there's new material evidence, is that the standard?

[00:26:48] Speaker 01:
New and relevant.

[00:26:49] Speaker 03:
New and relevant evidence.

[00:26:51] Speaker 03:
And the board says, no.

[00:26:54] Speaker 03:
This is all old.

[00:26:56] Speaker 03:
So motion to reopen denied.

[00:27:01] Speaker 03:
That's appealable to the Veterans Court, yes?

[00:27:03] Speaker 01:
I believe so, yes.

[00:27:05] Speaker 03:
Even though no merits determination, you get benefits, you don't get benefits, has been made in that decision.

[00:27:13] Speaker 03:
It says, we're not going to reopen because you've got nothing new.

[00:27:19] Speaker 01:
In essence, it's a decision that the evidence you've presented is nothing new.

[00:27:24] Speaker 01:
It's not going to help your claim.

[00:27:26] Speaker 01:
It's a decision to sort of keep the claim in place on the merits, is that you're bringing this new evidence, and the board's saying, well, this new evidence doesn't help you, so the claim stands as it is.

[00:27:45] Speaker 01:
In the case of a motion to vacate, it's again just an attempt at a new procedure.

[00:27:50] Speaker 01:
There's nothing said on what the board's later decision would be if the motion were granted or anything else.

[00:27:58] Speaker 01:
It's just a procedural issue.

[00:28:08] Speaker 03:
Thank you.

[00:28:15] Speaker 00:
Thank you, Your Honor.

[00:28:16] Speaker 00:
I want to start with the 3.156C discussion that completed the Secretary's presentation.

[00:28:24] Speaker 00:
This is what locomotive engineers was distinguishing between just looking at the same error and verifying that it was not an error and new evidence or a changed circumstance.

[00:28:35] Speaker 00:
Both 3.156C and 20.1000 allow for a new decision

[00:28:40] Speaker 00:
if certain qualifications are met.

[00:28:42] Speaker 00:
And so, whereas 3.156C, the Veterans Court has no problem taking jurisdiction over, as Judge Toronto, as you pointed out, just saying, no, we're not going to do it, so too should they not have any limitations in their jurisdiction to look at whether there was a due process error, which would lead to a new decision, just as 3.156C does.

[00:29:05] Speaker 00:
Maget, I want to just briefly highlight that this case has nothing to do with this one.

[00:29:12] Speaker 00:
Maget has nothing to do with our case.

[00:29:14] Speaker 00:
Maget was about a final decision and was not whether a decision was made.

[00:29:19] Speaker 00:
They simply said that a remand order is not a final decision and so this is a final decision.

[00:29:26] Speaker 00:
Whether it falls under 7252 is the question.

[00:29:29] Speaker 02:
No, because I think they said a little more than that.

[00:29:31] Speaker 02:
If I recall, is it Maget?

[00:29:34] Speaker 02:
I've always pronounced it Maget, but I bet that Mr. Maget pronounced it Maget.

[00:29:38] Speaker 02:
Nobody knows, Your Honor.

[00:29:39] Speaker 00:
Attorneys around the world are always debate this.

[00:29:43] Speaker 02:
But in any event, my recollection of the court went on to say that the reason that they viewed it that way was because a decision, final decision, is a decision granting or denying benefits.

[00:29:57] Speaker 02:
the decision in that case did not qualify as such.

[00:30:01] Speaker 02:
That would seem to me to have a bearing on what we're talking about here as to which of these various rulings is appealable.

[00:30:10] Speaker 00:
I understand, Your Honor.

[00:30:11] Speaker 00:
I think that that language has to be looked at in the context of what was before the court.

[00:30:15] Speaker 00:
Again, this was a remand order.

[00:30:17] Speaker 00:
The remand order, the court said, did not grant or deny benefits.

[00:30:21] Speaker 00:
It simply ordered additional development, and that's why that language was put in there.

[00:30:27] Speaker 00:
It did not talk about a final decision from the board where all the proceedings had ended.

[00:30:31] Speaker 00:
It just simply said they didn't do anything but order more development.

[00:30:36] Speaker 00:
And I read Maggett to be limited to the fact that it was a remand order and therefore there were no benefits granted or denied.

[00:30:47] Speaker 00:
But when we're looking at 7252, it is concerned with decisions of the board.

[00:30:53] Speaker 00:
And 511A requires the board to issue a decision on any law that affects the provision of benefits.

[00:31:01] Speaker 00:
This law is a regulation that self-imposed regulation to vacate when a due process violation has been identified.

[00:31:09] Speaker 00:
And I want to just end in my final seconds to reiterate that finality

[00:31:14] Speaker 00:
important, but statutes and regulations within the 38 USC and CFR offer many ways to reach back and fix prior bad decisions.

[00:31:24] Speaker 00:
This is one of them.

[00:31:26] Speaker 00:
Just like 3.156C is reviewable, this should also be reviewable as a 511A decision.

[00:31:34] Speaker 00:
If there are no other questions, thank you very much.

[00:31:36] Speaker 03:
Thank you.

[00:31:37] Speaker 03:
Thanks to all counsel.

[00:31:38] Speaker 03:
The case is submitted.