[00:00:00] Speaker 04:
All versus.

[00:00:41] Speaker 04:
Good morning.

[00:00:42] Speaker 01:
Good morning, Your Honors.

[00:00:44] Speaker 01:
May it please the Court?

[00:00:45] Speaker 01:
The Secretary has conceded that he violated Mr. Hall's due process rights by ignoring 25 requests for the recalibration to be done and by disregarding that he had a duty as a matter of law to comply with the remand and by willfully denying and unreasonably delaying compliance with the remand and that the proposed sanctions

[00:01:10] Speaker 01:
for his contempt of court were appropriate.

[00:01:14] Speaker 01:
Even though those concessions would resolve this case, we submit to the court that the constitutional questions about Mr. Hall's due process rights, specifically the right as a matter of law for the secretary to comply with the remand, being a due process right, should be addressed by the court, and that the issue of

[00:01:40] Speaker 01:
Whether there was an unreasonable delay should be addressed by the court.

[00:01:44] Speaker 04:
OK.

[00:01:45] Speaker 04:
I kind of lost you in your argument.

[00:01:47] Speaker 04:
You've got a decision now from the board, right?

[00:01:51] Speaker 04:
And that was the basis for your writ of mandamus that you had not gotten a decision yet.

[00:01:57] Speaker 01:
It was only part of the basis for the mandamus, Your Honor, because we submitted that even if the secretary ultimately came out with a decision, there was still a denial of due process.

[00:02:09] Speaker 01:
for now 1,217 days.

[00:02:12] Speaker 04:
Well, what is the number of days from the time they got the remand to the time you filed the writ?

[00:02:19] Speaker 01:
It was a little more.

[00:02:20] Speaker 01:
It was over two years, Your Honor, at that point in time.

[00:02:24] Speaker 04:
So is there some black letter law?

[00:02:27] Speaker 04:
Two years is too long.

[00:02:28] Speaker 04:
That's a denial of due process when it's two years versus a year and a half.

[00:02:34] Speaker 01:
There's no black letter law about that, Your Honor, but the reality is

[00:02:37] Speaker 01:
that the decision that's just been issued is also in violation of the 2016 court order.

[00:02:44] Speaker 01:
The court said at that point in time that if there was going to be a recalibration that the government had requested, that recalibration should be done and Mr. Hall should then have the opportunity

[00:02:55] Speaker 01:
to submit both argument and evidence.

[00:02:58] Speaker 04:
Well, you recognize, obviously, that it's not within our jurisdiction to adjudicate the correctness or lack of correctness of an opinion that was issued a month ago, right?

[00:03:09] Speaker 01:
The opinion was actually issued a couple of weeks ago, Your Honor.

[00:03:13] Speaker 04:
OK.

[00:03:15] Speaker 04:
But you understand that we're not in a position to evaluate any challenges you may have to that opinion, right?

[00:03:22] Speaker 01:
Correct, Your Honor.

[00:03:23] Speaker 01:
I understand that.

[00:03:23] Speaker 01:
But our position is

[00:03:25] Speaker 01:
that that opinion at best stopped the clock from running.

[00:03:29] Speaker 01:
There was a non-compliance clock that began when the court issued its mandate.

[00:03:33] Speaker 01:
And that clock never stopped running until this October 22nd decision was put on the table.

[00:03:40] Speaker 04:
But in the interim, for 1,217 days... Well, at least a portion of that time, maybe a short portion, but a portion of that time after you filed the writ, my understanding was

[00:03:52] Speaker 04:
that you were initially refusing to participate in the proceedings, which delayed it for at least several months.

[00:04:00] Speaker 04:
Am I wrong about that?

[00:04:01] Speaker 01:
You are, Your Honor, and the reason for that is we weren't refusing to participate just for the matter of delay.

[00:04:07] Speaker 01:
We were, number one, refusing to participate because my client was hospitalized for a period of time.

[00:04:12] Speaker 01:
But we kept saying, if you're going to do a hearing, you have to have the recalibration.

[00:04:18] Speaker 01:
The recalibration had not been done during that period of time,

[00:04:22] Speaker 01:
All we kept saying was, prior to the time we filed the writ of mandamus, you have a responsibility to do the recalibration.

[00:04:30] Speaker 01:
You didn't do the recalibration.

[00:04:32] Speaker 01:
You can't go ahead with a hearing until you do the recalibration.

[00:04:36] Speaker 01:
And the government's position in their brief is that we never had a responsibility to do the recalibration in any specific time.

[00:04:43] Speaker 01:
They basically said,

[00:04:45] Speaker 01:
The court ordered a recalibration based on their request, but we have no responsibility to, in fact, do the recalibration at any point in time.

[00:04:55] Speaker 01:
Now, the difficulty with that is that, number one, it takes the idea of a concession and throws it out the window, because as we pointed out in our... Well, again, I'm a little confused, so help me out here.

[00:05:07] Speaker 04:
Is your view now

[00:05:09] Speaker 04:
Did the government refuse to do a recalibration, or did the board refuse to do one in its decision it issued a few weeks ago?

[00:05:17] Speaker 01:
Your Honor, they did a recalibration, and they claimed that it was based on their understanding of what was appropriate.

[00:05:23] Speaker 01:
Okay.

[00:05:24] Speaker 01:
I would suggest to you that both legally and factually that recalibration was incorrect.

[00:05:29] Speaker 01:
But I understand that it's not before you.

[00:05:31] Speaker 04:
It's not before us.

[00:05:32] Speaker 01:
I understand that.

[00:05:33] Speaker 04:
As far as what's before us, so the two and a half years that the case was remanded and then it was two and a half years until you filed your writ of mandamus?

[00:05:44] Speaker 01:
Approximately.

[00:05:45] Speaker 01:
It was more than two years, Your Honor, and then we've gone another year.

[00:05:48] Speaker 01:
So we are between the time of the mandate of the 2016 decision

[00:05:53] Speaker 01:
And the October 22nd decision by the board was 1,217 days.

[00:05:58] Speaker 01:
And our contention is that irrespective of the fact that there was, in fact, a recalibration, assuming that that was done in the BVA decision, there was a 1,217 day period of time where Mr. Hall's due process rights were violated.

[00:06:15] Speaker 02:
All right.

[00:06:16] Speaker 02:
Let's, for the sake of this discussion, agree that it took a long time, for whatever reason, for that recalibration to be done.

[00:06:25] Speaker 02:
We still need to get to the next step of the remedy that you're requesting.

[00:06:32] Speaker 01:
Yes.

[00:06:32] Speaker 01:
And we have suggested, Your Honor, that sanctions are appropriate against the government for their contempt of court.

[00:06:39] Speaker 02:
You're requesting not a personal sanction.

[00:06:42] Speaker 02:
You're requesting an award of the relief that was originally requested.

[00:06:48] Speaker 01:
We're requesting an award of relief.

[00:06:50] Speaker 01:
It wasn't what was originally requested, Your Honor.

[00:06:52] Speaker 01:
But our position is that if you take a look at the decision, this Court's decision in the... You're not requesting the effective date?

[00:07:01] Speaker 01:
We are requesting the effective date going back to 1972, Your Honor.

[00:07:04] Speaker 01:
And then we also requested some additional relief in terms of the rating that would be

[00:07:08] Speaker 01:
applied to the disability, the hearing disability that's at issue.

[00:07:13] Speaker 01:
So we do request that the date go back to 1972.

[00:07:16] Speaker 01:
We picked that date for reasons based in the record that the original decision was simply wrong and ignored factual evidence that was in the record.

[00:07:26] Speaker 01:
But we've suggested that there is in fact an appropriate sanction that should be applied against the secretary in this particular case for his

[00:07:38] Speaker 01:
unwillingness to adhere to the court's order.

[00:07:42] Speaker 02:
The court ordered... What is the sanction you're asking for?

[00:07:47] Speaker 01:
We're asking for Mr. Hall to be given a 50% rating and that the rating should go back to 1972.

[00:07:53] Speaker 02:
You're asking for the relief that was requested on the merits.

[00:07:58] Speaker 01:
Yes ma'am, we are.

[00:07:59] Speaker 02:
And because to be awarded as a sanction against the government.

[00:08:04] Speaker 01:
To be awarded as a sanction for the contempt of court of the government.

[00:08:07] Speaker 04:
And I'm really not clear.

[00:08:09] Speaker 04:
And that's based on the fact that you're just of what the board did recently in its decision two weeks ago, which is not a decision that's before us or that's been appealed.

[00:08:19] Speaker 01:
I'm sorry, Your Honor.

[00:08:20] Speaker 01:
I'm not sure I understand.

[00:08:21] Speaker 04:
When you're saying the sanction is because the board failed to do something?

[00:08:25] Speaker 01:
No, we're saying that the sanction is that the Secretary of the Veterans Affairs asked for in 2016 that the Veterans Court require a recalibration.

[00:08:37] Speaker 01:
The court said, we grant your request.

[00:08:40] Speaker 01:
I then asked 25 times in the next two years for the secretary to carry out the recalibration.

[00:08:48] Speaker 01:
The recalibration was not done.

[00:08:50] Speaker 01:
Our position was that this is a rule of law question.

[00:08:54] Speaker 01:
The court issued a decision that said, you have to do something.

[00:08:58] Speaker 01:
And the secretary ignored it and basically has said in all of his papers to date that he had no obligation

[00:09:07] Speaker 01:
at any specific time to comply with the requirement.

[00:09:10] Speaker 01:
He could do it at some indefinite time that he chose, but it was going to be done at his choice whenever he decided to do it.

[00:09:19] Speaker 01:
And therefore, there was no requirement that anything could be done to force him to do it otherwise.

[00:09:24] Speaker 01:
And I'd like to point out that in Marbury versus Madison, Chief Justice Marshall gave an example of a disabled veteran.

[00:09:34] Speaker 01:
And if the disabled veterans

[00:09:36] Speaker 01:
were put on a pension list by the Congress, that pension list was something that was supposed to be a duty that the Secretary of War simply had to apply.

[00:09:49] Speaker 01:
So Marshall said in Marbury that the duty that was implied from the act of Congress was something that the Secretary really didn't have any discretion about.

[00:10:02] Speaker 01:
He had to do it.

[00:10:03] Speaker 01:
Now, that act of Congress

[00:10:04] Speaker 01:
is much like the decision of the 2016 Veterans Court.

[00:10:09] Speaker 01:
The court said, you have to do a remand.

[00:10:13] Speaker 01:
The Secretary of Veterans Affairs had no discretion, especially since he'd asked for the remand for the purpose of the recalibration to begin with.

[00:10:21] Speaker 01:
He had no duty to say, I'm not going to do it.

[00:10:24] Speaker 01:
He had a responsibility to comply with the court's order.

[00:10:28] Speaker 01:
And by not doing that, he was in contempt of court.

[00:10:33] Speaker 01:
What happened at the Veterans Court under mandamus proceedings was that the court was basically presented a set of smoke and mirrors.

[00:10:43] Speaker 01:
There were supposedly lots of process that was going on, none of which had anything to do with a specific requirement

[00:10:49] Speaker 01:
to do the recalibration.

[00:10:51] Speaker 01:
It was all other process relating to hearings and scheduling.

[00:10:56] Speaker 04:
So your charge here with respect to violation of due process and the need for sanctions is not when the board was going to issue its opinion and resolve this.

[00:11:05] Speaker 04:
It was on when they did the recalibration?

[00:11:09] Speaker 01:
Yes, ma'am.

[00:11:09] Speaker 01:
They were required to do the recalibration on the basis of a specific request by the secretary.

[00:11:15] Speaker 03:
So your position basically is some short period after the remand, the recalibration, should have been done with input from the veteran, and that after that short period, everything else was in violation of the remand order from the Veterans Court.

[00:11:31] Speaker 01:
Your Honor, I'm in my rebuttal, but may I answer your question?

[00:11:34] Speaker 01:
Sure.

[00:11:35] Speaker 01:
You use the term short period, and we are not suggesting that short period was 10 days or 30 days.

[00:11:41] Speaker 01:
Some period.

[00:11:41] Speaker 01:
Some period of time.

[00:11:43] Speaker 03:
Less than two years is your position.

[00:11:45] Speaker 01:
Well, in the Martin case, this court determined that two years might or might not be unreasonable and might or might not be a denial of due process under the circumstances.

[00:11:55] Speaker 01:
And our position was that after asking 25 times for this recalibration to be done, and it wasn't done, at the end of that two-year period of time, it was really inappropriate to say that the secretary should continue to delay and delay.

[00:12:11] Speaker 01:
And so we took the position that that was appropriate for mandamus.

[00:12:14] Speaker 01:
And we've said to the secretary, OK, now you've come down with a recalibration of some kind, but there was still 1,217 days from the time of the mandate at the Court of Veterans' Appeals to the actual issuing of that decision.

[00:12:33] Speaker 01:
There should be some recompense, some solution that should be given to Mr. Hall for the fact that his due process rights were violated during that period of time.

[00:12:42] Speaker 04:
I guess I'm unclear.

[00:12:43] Speaker 04:
If they had done a recalibration on week two, whatever they did would have no force in effect until the board actually decided the cases they did two weeks ago, right?

[00:12:54] Speaker 04:
I'm having a hard time differentiating between your arguments with respect to the recalibration and just the fact that the board was sitting on the case and didn't issue a decision.

[00:13:04] Speaker 01:
But the court itself issued, I'm sorry, the board did the recalibration in October of this year.

[00:13:10] Speaker 01:
They were not authorized to do that recalibration.

[00:13:13] Speaker 01:
The court said it should be returned to the regional office.

[00:13:17] Speaker 01:
The regulation that is cited in that decision that was issued October 22nd refers to a hearing clinic doing a recalibration.

[00:13:27] Speaker 01:
It does not refer to the board doing the recalibration.

[00:13:30] Speaker 04:
And because we never- Don't you appreciate that those are issues that you would raise in connection with challenging what the board did in this October

[00:13:39] Speaker 04:
2019 decision.

[00:13:42] Speaker 04:
That's not part and parcel of what's here before us, which had to do with the delay in issuing.

[00:13:49] Speaker 04:
I understand that, Your Honor.

[00:13:51] Speaker 01:
And the point we're trying to make is, Mr. Hall has a right to say to the courts, this should be something that was a contempt of court.

[00:14:01] Speaker 01:
This should be something, there should have been a sanction issued.

[00:14:04] Speaker 01:
Essentially, if you say this being what I guess that's what I'm the delay the delay of 1,217 days, which was unreasonable Your honor if I'll continue, but I'm already into my rebuttal time All right, um, why don't you say if your rebuttal will hear from the government.

[00:14:20] Speaker 00:
Thank you, your honor May it please the court

[00:14:39] Speaker 00:
First of all, I think I'll just start this way.

[00:14:43] Speaker 00:
Yes, a couple of weeks ago, the board did issue a decision.

[00:14:45] Speaker 00:
It did conduct a collaboration, because that was the subject of the mandamus petition.

[00:14:51] Speaker 00:
That was before the Veterans Court, and that's on appeal to this court.

[00:14:53] Speaker 00:
We would submit that the mandamus petition issue is now moved.

[00:14:57] Speaker 00:
He's free.

[00:14:58] Speaker 00:
Mr. Hall is free to challenge the substance of that in any challenge he may make with respect to that appeal.

[00:15:03] Speaker 00:
He can make an argument.

[00:15:05] Speaker 04:
When you say that, you mean the October 2019?

[00:15:08] Speaker 00:
Exactly.

[00:15:08] Speaker 04:
So why is it moot if he asked?

[00:15:12] Speaker 04:
So let's forget about the arguments he has with respect to the 2019 decision.

[00:15:17] Speaker 04:
But in his writ, he did ask for relief in addition to just the decision we bid he issue.

[00:15:26] Speaker 04:
I think he asked for sanctions.

[00:15:28] Speaker 00:
Yes, he has a motion for sanctions.

[00:15:29] Speaker 00:
So that's a different topic.

[00:15:33] Speaker 00:
My only comment up to this point was with respect to the writ.

[00:15:36] Speaker 00:
The writ was asking for specific performance relief.

[00:15:39] Speaker 00:
In that particular case, it was asking for a board decision.

[00:15:41] Speaker 00:
Veterans Court entertained that and denied it.

[00:15:44] Speaker 00:
And that's what's on appeal here.

[00:15:46] Speaker 00:
And I will note, just as an aside with respect to these references of 1,200 days of delay, that was about two years.

[00:15:53] Speaker 00:
That's what this Court's sitting over.

[00:15:55] Speaker 00:
The Veterans Court's decision is on appeals.

[00:15:58] Speaker 00:
There's no writ to this Court asking for relief.

[00:16:03] Speaker 00:
The analysis that the court performs is with respect to the Veterans Court's decision.

[00:16:07] Speaker 00:
And what did the Veterans Court base that decision upon?

[00:16:09] Speaker 00:
Well, we're only looking at the veteran.

[00:16:11] Speaker 00:
OK.

[00:16:11] Speaker 00:
And we could get into the merits of that.

[00:16:13] Speaker 00:
I was prepared to until this decision came out recently.

[00:16:16] Speaker 00:
But I now think, though, that the mandamus petition is then mooted.

[00:16:21] Speaker 00:
He did file, as you indicate, Your Honor, a motion for sanctions, which was also denied for many of the same reasons

[00:16:27] Speaker 00:
that the mandamus petition.

[00:16:28] Speaker 03:
That motion was contemporaneous with the mandamus petition.

[00:16:32] Speaker 00:
As far as we can tell, as it was included in, there was two.

[00:16:36] Speaker 00:
Not to be confused with the motion for an oral argument in which he's filed separately.

[00:16:40] Speaker 00:
It was wrapped up, and the court treated it as a separate motion for sanctions, as they have in the past, the Harvey decision being a particular example of that.

[00:16:49] Speaker 00:
And went ahead and dealt with that separately.

[00:16:52] Speaker 00:
And the secretary briefed it separately, too, in contrast to the suggestion

[00:16:56] Speaker 00:
In the blue brief, the secretary did respond at appendix 331 to 334 to the motion for sanctions, indicating that the- And he's preserved that here on up here.

[00:17:08] Speaker 00:
So that's an interesting question.

[00:17:11] Speaker 00:
The argument for in the blue brief argues that the secretary's failure to basically defend the Stegall violation, as far as I can tell, amount to concession.

[00:17:24] Speaker 00:
That sanctions were appropriate and that the veterans court aired by not issuing sanctions given that second concession our response to that in the red brief is I don't we don't understand how that failure to brief an issue could be a concession on a on an issue like this which is within the discretion of the veterans court to make but moreover as I just indicated a moment ago with reference to appendix 331 to 334 the government did respond to the

[00:17:53] Speaker 00:
argument for sanctions.

[00:17:54] Speaker 00:
It's just that it appears Mr. Hall wasn't satisfied with the government's response.

[00:17:59] Speaker 00:
Mr. Hall believes, and it's crystallizing now, that he was entitled to a recalibration by the regional office.

[00:18:08] Speaker 00:
I think that seems to be what's undergirding a lot of this.

[00:18:12] Speaker 00:
But there's nothing in the decision from the Veterans Court that initially remanded the case.

[00:18:16] Speaker 00:
That suggests that the board couldn't issue such a decision on recalibration.

[00:18:20] Speaker 04:
But I'm confused, because that all, to me, has to do with whether he wants to challenge that in the October 2019.

[00:18:26] Speaker 00:
Correct.

[00:18:27] Speaker 04:
And not in this.

[00:18:29] Speaker 04:
So can we go back to this appeal?

[00:18:30] Speaker 04:
You suggested it might be moot.

[00:18:33] Speaker 04:
And my question in that regard is,

[00:18:35] Speaker 04:
Wouldn't he arguably have been entitled to either sanctions or a directive that he win the case in its entirety or something else?

[00:18:46] Speaker 04:
So just because the board issues its ultimately issued the decision while it was pending before us, how does that necessarily

[00:18:55] Speaker 04:
automatically result in it's moved when there are other issues that we have to look at.

[00:19:00] Speaker 00:
As Judge Newman indicated with respect to the earlier, the remedy of mandamus is now not available or not required.

[00:19:08] Speaker 00:
So let's set aside the mandamus part of what he filed before the Veterans Court.

[00:19:12] Speaker 00:
Because that's now been, it's been granted, he now has that remedy.

[00:19:16] Speaker 00:
He has a board decision.

[00:19:17] Speaker 00:
It actually contains a recalibration analysis.

[00:19:20] Speaker 00:
And he is now in a position to the extent he disagrees with how the board did it or even whether it was

[00:19:25] Speaker 00:
Appropriate for the board and not the regional office to do it He has a basis to deal with that and that's the appeal of that decision to the veterans court And he can make arguments in that brief with respect to whether it was appropriate for the board to do it Or it should have been done by the regional office in the first place Mr.. Hockey the

[00:19:42] Speaker 02:
It's clear that this was an unusually long delay.

[00:19:47] Speaker 02:
It looks from the briefs.

[00:19:49] Speaker 02:
They said, one of the agencies said, we didn't even say it didn't get into the RO agenda to do a recalibration.

[00:19:58] Speaker 02:
It is difficult to figure out.

[00:20:02] Speaker 02:
where, how this fault arose, and what's appropriate.

[00:20:07] Speaker 02:
At the same time, there is something that went wrong.

[00:20:10] Speaker 02:
I mean, what about attorney's fees, for instance, or some other form of equalizing?

[00:20:18] Speaker 00:
So that's the type, Your Honor, that's, first of all, what happened here on remand basically was, there's two things we need to remember about

[00:20:29] Speaker 00:
This case, one about the case and one generally about the original Veterans Court Remand Order.

[00:20:35] Speaker 00:
That original Veterans Court Remand Order, which is that Appendix 12, offers and orders the VA to consent to allow Mr. Hall to submit additional evidence and argument.

[00:20:50] Speaker 00:
In other words, he's free to add to the record as a result of that order on Appendix 12 in 2016.

[00:20:59] Speaker 00:
That's different than these cases cited by the court more recently when it denied the mandamus, Groves and Harvey, where the remand was to the board to take a specific action.

[00:21:11] Speaker 00:
As the court can appreciate, and has recognized in the Martin case recently, when a remand involves additional development, time periods, the two years, two and a half thing, you have to take into account, it's like track factor three, I think, you take into account the nature of what needs to be done on remand.

[00:21:29] Speaker 00:
So first of all, when the Veterans Court tells the secretary on the hearing issue in 2016 that Mr. Hall is entitled to add additional record evidence, what the board did with that was to say, OK, we will send it back to the RO in December 2016 to allow the issuance of a VCA notice and allow him to submit evidence, which he did in March of 2017.

[00:21:53] Speaker 00:
But at the same time, coming up were these other issues, the lung issue and the renal issue.

[00:21:59] Speaker 00:
They were coming up from the RO to the board.

[00:22:01] Speaker 00:
So after the remand from the veterans court, where it sends the hearing issue down to the board, back to the board, around that same time, September of 2016, the regional office sends up a denial on the lung and the renal issue.

[00:22:17] Speaker 00:
So now the board has all kinds of issues involving Mr. Hall, different claims.

[00:22:22] Speaker 00:
What it decides to do in December of 2016 is because it has to comply with the VCA notice,

[00:22:29] Speaker 00:
allowing more evidence on the hearing issue, takes all of Mr. Hall, and is it dissatisfied at the same time with the completeness or thoroughness of the evaluations that support the regional office's denial on the what I'll call other issues claims, takes all of this and sends it back in December of 2016 to the regional office and says, fix this, which the regional office does.

[00:22:52] Speaker 00:
Most of the delay occurring throughout 2017 has to do with trying to get Mr. Hall in

[00:22:59] Speaker 00:
to get his medical exams on the other issues.

[00:23:02] Speaker 00:
The Q issue, which went down, they did.

[00:23:06] Speaker 00:
Mr. Hall, as a counsel, did submit in March of 2017 the information that was responsive to the VCA notice issue on that.

[00:23:15] Speaker 03:
On calibration?

[00:23:17] Speaker 00:
He submitted evidence addressing that.

[00:23:19] Speaker 00:
I think he submitted evidence addressing a lot of things.

[00:23:21] Speaker 00:
But it would have included the calibration issue.

[00:23:23] Speaker 00:
At that point, it's possible that someone could have separated the claims again.

[00:23:29] Speaker 00:
But we would submit it wasn't inappropriate and the Veterans Court doesn't appear to think it was to not separate the claims because it was operating generally under sort of the principle that when they get a bunch of claims together, they try to address them all before issuing a final decision.

[00:23:44] Speaker 00:
It's generally consistent with 38 CFR 19.38, which is the regulation that talks about what you do on remand.

[00:23:51] Speaker 03:
And the medical examination that was contemplated had to do with the other issues and pulmonary issues?

[00:23:57] Speaker 00:
Correct.

[00:23:59] Speaker 00:
Much of the delay from about May through December of 2017 was associated in trying to get Mr. Halt in for these exams.

[00:24:06] Speaker 04:
So what happened?

[00:24:07] Speaker 04:
Were those issues covered in the recent opinion?

[00:24:08] Speaker 00:
Yes.

[00:24:09] Speaker 04:
The other two issues.

[00:24:10] Speaker 04:
Yes, they are.

[00:24:11] Speaker 04:
And the result was?

[00:24:13] Speaker 00:
Well, they were first covered by the board when the board in December, a year later, December 2017, which is a day after

[00:24:21] Speaker 00:
the medical exams get submitted on the other issues, the regional office issues the decision, continuing the denial on the other issues, and also denies the Q claim.

[00:24:32] Speaker 00:
Now, Mr. Hall would take issue with that, because it would be that decision that one would expect a fulsome analysis of the

[00:24:43] Speaker 00:
hearing recalibration issue.

[00:24:45] Speaker 00:
But instead, the regional office simply says, we've considered the additional evidence provided and we don't change our mind.

[00:24:52] Speaker 00:
So then the thing gets packaged back up and it goes to the board.

[00:24:55] Speaker 00:
And that's the time in early 2018 when the board first discovers and then attempts to schedule a hearing

[00:25:04] Speaker 00:
at the board level.

[00:25:05] Speaker 00:
So there was a hiccup at a minimum.

[00:25:08] Speaker 00:
There was certainly a hiccup.

[00:25:09] Speaker 04:
Somebody lost something or wasn't.

[00:25:11] Speaker 00:
It's possible.

[00:25:13] Speaker 00:
Here's what we don't know for sure.

[00:25:15] Speaker 00:
It's possible that the regional office did some sort of recalibration but didn't bother to stick it in their decision.

[00:25:22] Speaker 00:
Or it's possible they just thought they were developing the case and didn't understand that they could do a recalibration issue.

[00:25:30] Speaker 00:
Irrespective, so that may have been, you know,

[00:25:34] Speaker 00:
a hiccup with respect to the recalibration issue.

[00:25:36] Speaker 04:
Well, how much delay did that cause?

[00:25:38] Speaker 00:
Well, I don't know if you can associate any delay to it, because at the same time, they're working on these sort of live claims with respect to the renal and to the lung.

[00:25:50] Speaker 00:
So they're all sort of packaged together.

[00:25:51] Speaker 00:
They come up.

[00:25:53] Speaker 00:
Then there's the hearing delays, first with respect to the administrative judge not understanding he was supposed to have a hearing on the particular day in question, and then

[00:26:01] Speaker 00:
getting rescheduled for that.

[00:26:03] Speaker 00:
And then Mr. Hall's desire to have the petition that he had then pending before the Veterans Court addressed before he agreed to go and have another hearing, which it turned out there was another hearing in April of earlier this year.

[00:26:18] Speaker 00:
They did have the hearing.

[00:26:19] Speaker 00:
The Board issues its decision a couple of weeks ago.

[00:26:22] Speaker 00:
And it does not only addresses the recalibration issue, but it also addresses the other two issues that had been remanded by the Board

[00:26:30] Speaker 00:
a year earlier, a year and a half earlier.

[00:26:32] Speaker 04:
So what are we supposed to do with these cases?

[00:26:35] Speaker 00:
Well, so here's how I see it.

[00:26:38] Speaker 00:
There were two basic motions, if you will, pending before the Veterans Court that were denied, addressed and denied by the Veterans Court, and are presently, in some fashion, before this court.

[00:26:50] Speaker 00:
Certainly, the denial of the writ was appealed to this court.

[00:26:54] Speaker 00:
We wouldn't dispute that that's an issue before the court.

[00:26:57] Speaker 00:
But we would argue that the issuance

[00:26:59] Speaker 00:
of the board decision now basically takes the remedy off the table, so therefore moots the case, because he was seeking, as part of the writ process, issuance of a board decision that dealt with the recalibration.

[00:27:10] Speaker 00:
He now has that and can take that to the Vectors Court if he's unsatisfied with it in any number of ways.

[00:27:17] Speaker 00:
Like I said, substantively or procedurally, those avenues are available to him to take that.

[00:27:23] Speaker 00:
The other issue that the Vectors Court addressed in its decision, Appendix 5,

[00:27:27] Speaker 00:
was the motion for sanctions.

[00:27:30] Speaker 00:
It had various remedies associated with it.

[00:27:32] Speaker 00:
We would first take issue with the idea of granting the relief contrary to meeting your statutory requirements under 51-07.

[00:27:39] Speaker 00:
But setting that aside, it is true that the veterans court has entertained civil sanction motions where they felt that one party or the other was basically acting contrary to the interests of the court.

[00:27:54] Speaker 00:
In some ways, it's similar the way it's been

[00:27:57] Speaker 00:
looked at by the Veterans Court to a writ, only it involves a different type of remedy.

[00:28:02] Speaker 00:
The problem I see with respect to that remedy is I don't see a challenge to the Veterans Court's finding on the merits on the sanctions in the blue brief.

[00:28:11] Speaker 00:
Instead, I see this argument that's been fashioned based upon the secretary's briefing of that issue.

[00:28:17] Speaker 00:
And I've addressed our response to that already, which I think, A, and I'll just skip to number one, the merits.

[00:28:24] Speaker 00:
We do respond.

[00:28:24] Speaker 00:
We did respond to the motion on the briefing.

[00:28:27] Speaker 00:
But even arguably, if we hadn't responded, since it's an exercise of the court's discretion to try to enforce what it perceives to be gross negligence with respect to its own orders, the court could issue a decision, as it did in this case, denying the relief, saying that they thought that the actions of the secretary did not amount to that level.

[00:28:47] Speaker 00:
And yet we would still be able to defend that court opinion before this court.

[00:28:51] Speaker 00:
So I don't see any of this concession argument

[00:28:54] Speaker 00:
amounting to a situation in which this court could then simply say, yeah, the Veterans Court erred by addressing the merits of the sanctions instead of simply saying, Secretary, because you didn't issue a board decision that had the recalibration analysis in it at that time, you lose under Stegel.

[00:29:13] Speaker 00:
As we argued, there was no decision at that time.

[00:29:15] Speaker 00:
We can't defend the merits of a decision that didn't exist.

[00:29:19] Speaker 00:
But what we can do is address the real issue that was before the court, which was the delay.

[00:29:23] Speaker 00:
And we did address the delay and explain what we were doing at every step of the process.

[00:29:27] Speaker 00:
The veterans court entertained that argument and ruled consistent with our argument that any delays were understandable.

[00:29:35] Speaker 00:
And that would be a merits type issue before this court, but I don't see it in the blue brief.

[00:29:40] Speaker 00:
But even if it is somewhere in there, we would submit that as the

[00:29:45] Speaker 00:
procedural history of this case indicates the secretary took steps all along the way.

[00:29:50] Speaker 00:
And if the court were to engage in an analysis with respect to the merits of that, one of the big factors I would say looking at is the nature of the remand.

[00:29:58] Speaker 00:
When the remand here from the Veterans Court, its own remand, which it's now going to be at the time looking at whether the secretary was in compliance, offered the appellant the opportunity to submit additional evidence as opposed to those cases where

[00:30:14] Speaker 00:
It was just a matter of doing some sort of mathematical thing, like in Groves and Harvey.

[00:30:22] Speaker 00:
The analysis has taken, like the track factors suggest, what does the agency have to do?

[00:30:28] Speaker 00:
That was done here.

[00:30:29] Speaker 00:
All of those factors were examined by the trial court, consistent with this court's decision in Martin.

[00:30:35] Speaker 00:
We submit that there was no error, there was no abuse of discretion on the part of the Veterans Court in reaching its decision, which in this case was,

[00:30:43] Speaker 00:
that although it was a little upset with the secretary's pickups, it didn't find that the secretary's action merited either mandamus or sanction.

[00:31:02] Speaker 01:
Your honor, I'd like to clarify a couple things.

[00:31:03] Speaker 01:
First of all, your honor, with respect to the question of whether Mr. Hall had an opportunity to respond

[00:31:10] Speaker 01:
and submit evidence about this recalibration?

[00:31:12] Speaker 01:
Absolutely not.

[00:31:13] Speaker 03:
The February 2017 issue was the question, did he submit evidence?

[00:31:18] Speaker 01:
No.

[00:31:19] Speaker 01:
And the government is confused about that.

[00:31:22] Speaker 01:
The reason why they're confused, there's a site in their brief where they say, well, Mr. Allen submitted the M21, which is this supposed regulation that governs the hearing.

[00:31:32] Speaker 01:
We didn't submit that and say, this is what you have to do.

[00:31:36] Speaker 01:
We said, this is what you gave to the Veterans Court.

[00:31:39] Speaker 01:
We're simply asking you to comply with the remand that you asked the Veterans Court to do.

[00:31:44] Speaker 01:
We never provided it.

[00:31:45] Speaker 03:
Well, what happened in February of 2017?

[00:31:47] Speaker 03:
Anything?

[00:31:49] Speaker 03:
Or Mr. Hockey has referred to an event in February, I think it was, or March of 2017.

[00:31:55] Speaker 03:
And what is that referred to?

[00:31:59] Speaker 01:
I'd have to go back and look, Your Honor, but we did not ever have an opportunity to submit evidence about the recalibration because we didn't know what it was going to be.

[00:32:07] Speaker 01:
We had no idea what the result was going to be.

[00:32:09] Speaker 01:
We simply said 25 times to the VA, you have an obligation to do what you said you were going to do in the remand.

[00:32:17] Speaker 01:
Do the recalibration.

[00:32:18] Speaker 01:
We'll then respond to it.

[00:32:19] Speaker 01:
We've never had a chance to do that because they never did the recalibration until that decision came out in October of this year.

[00:32:27] Speaker 01:
Now, Your Honor, I want to point out, too,

[00:32:29] Speaker 01:
that we are not in any way arguing about that decision.

[00:32:32] Speaker 01:
I'm not trying to suggest that that decision is before you.

[00:32:36] Speaker 01:
I am trying to say that from the time of the mandate in 2016 from the Veterans Court to the time that decision was issued, that period of delay, 1,217 days, you want to, Mr. Hockey wants to argue whether some of it was attributable to the, Mr. Hall, we would contend no because we've never seen the recalibration at all.

[00:32:57] Speaker 01:
But that 1,217-day period of time is an unreasonable delay.

[00:33:02] Speaker 01:
And we've taken the position also that there was no argument that could be made that they responded to the sanctions argument.

[00:33:11] Speaker 01:
If you look at every document that was submitted by the government to the court below,

[00:33:17] Speaker 01:
They created the smoke and mirrors defense saying we're doing something.

[00:33:23] Speaker 01:
Essentially what they were doing was process, but the process had nothing to do with the recalibration.

[00:33:29] Speaker 01:
You will not see them once respond in any way to the idea that the recalibration was either required or was being done.

[00:33:37] Speaker 01:
You will not see them respond to the specific sanctions for the fact that the recalibration was not done.

[00:33:43] Speaker 01:
They basically were saying,

[00:33:45] Speaker 01:
Because we gave him process, we are therefore not subject to sanctions.

[00:33:50] Speaker 01:
And our position is the process had nothing to do with the recalibration.

[00:33:54] Speaker 01:
It was process that was smoke and mirrors.

[00:33:57] Speaker 01:
We'll schedule a hearing.

[00:33:58] Speaker 04:
So just so I understand, so your view is the entitlement to sanctions is based on the delay in not doing the recalibration?

[00:34:06] Speaker 01:
In part, but it's also based on their concession, Your Honor.

[00:34:09] Speaker 01:
Because they never responded.

[00:34:12] Speaker 01:
to the arguments about due process or the right to compliance with a remand as a matter of law or the sanctions for the specific act of not doing the recalibration.

[00:34:25] Speaker 01:
Those specific issues, they never responded to in any way under any circumstances in the case below.

[00:34:33] Speaker 01:
And our position would be that under the law of both the Court of Appeals for Veterans Claims and this court,

[00:34:41] Speaker 01:
Those are absolute concessions, because they never responded to them.

[00:34:46] Speaker 01:
If you look at the paperwork, you will not see a response that references the recalibration itself.

[00:34:52] Speaker 01:
It's all of this other process.

[00:34:54] Speaker 01:
So they were basically cooking a kettle, and smoke was coming up, and they're blowing it to the court and saying, we're doing what you said that we were supposed to do.

[00:35:03] Speaker 01:
When in reality, there was nothing like that.

[00:35:06] Speaker 01:
And I'd like to end with this, if I may, Your Honor.

[00:35:09] Speaker 01:
Justice Marshall, in talking about the veteran's example that he gave in Marbury versus Madison, said the following.

[00:35:17] Speaker 01:
When the veteran's name was included on the report that Congress had ordered, if the secretary should refuse to do so, would the wounded veteran be without remedy?

[00:35:28] Speaker 01:
Is it to be contended that where the law, in precise terms, in our particular case, the remand order, directs the performance of an act

[00:35:38] Speaker 01:
in which an individual is interested, the law is incapable of securing obedience to its mandate?

[00:35:45] Speaker 01:
Is it on account of the character of the person against whom the complaint is made?

[00:35:50] Speaker 01:
Is it to be contended that the heads of departments are not amenable to the laws of their country?

[00:35:57] Speaker 01:
This is absolutely a rule of law question.

[00:35:59] Speaker 01:
The Court of Appeals for Veterans Claims issued a decision it was not complied with by the Secretary

[00:36:06] Speaker 01:
there in contempt of court, we respectfully request that you reverse the decision, that you grant the sanctions approved, and that you find that Mr. Hall had a due process right to the remand that was promised him by the secretary and that was not provided to him.

[00:36:23] Speaker 04:
Thank you, Your Honors.