[00:00:00] Speaker 01:
Beck versus HHS 19-1423.

[00:00:46] Speaker 01:
Mr. Gage, you may begin, sir.

[00:00:49] Speaker 01:
I notice that you have reserved four minutes of your time for rebuttal.

[00:00:54] Speaker 05:
I did.

[00:00:55] Speaker 01:
Do you want to change that?

[00:00:56] Speaker 05:
I don't know at this point.

[00:01:01] Speaker 01:
You look kind of confused.

[00:01:02] Speaker 01:
Do you want to reserve four minutes or more or less?

[00:01:06] Speaker 05:
Well, I thought four minutes would be about right.

[00:01:09] Speaker 05:
OK.

[00:01:09] Speaker 05:
I never guess right.

[00:01:10] Speaker 05:
OK.

[00:01:12] Speaker 05:
And it never ends up being followed anyway.

[00:01:17] Speaker 01:
We're going to try to follow it here, okay?

[00:01:18] Speaker 01:
So you've got 11 minutes and then four minutes for rebuttal.

[00:01:21] Speaker 05:
Okay, thank you.

[00:01:23] Speaker 05:
May it please the court.

[00:01:26] Speaker 05:
We are here addressing the application of a provision subsection 300AA12D of the Vaccine Act.

[00:01:42] Speaker 05:
From my research, I don't believe that this court has ever expressly addressed this provision, and there are a lot of petitioners, and I assume the government who needs some direction from this court on this.

[00:01:58] Speaker 05:
So subsection D2,

[00:02:11] Speaker 01:
300 double a let me ask you a question did did you present evidence that The I guess the child let's say had the underlying disorder mitochondrial disorder Yes, your honor that was found by his treating doctors, and you presented evidence of that yes, okay um

[00:02:39] Speaker 05:
There are two subsections that have to be dealt with, subsection D and subsection C of 12D, no 2 and 3.

[00:03:01] Speaker 05:
When Congress created subsection D, I'm sorry, Your Honor, but when Congress created subsection D, that was in 1989.

[00:03:09] Speaker 05:
What we have in the statute right now as subsection D, you're referring to a decision without an evidentiary ruling.

[00:03:39] Speaker 05:
Okay.

[00:03:40] Speaker 05:
Subsection 12D was passed in 1989.

[00:03:46] Speaker 05:
The previous version didn't have that section.

[00:03:49] Speaker 05:
That section came as an entire section in one group.

[00:03:53] Speaker 05:
Subsection 2 of that in, Subsection 2 of D,

[00:04:03] Speaker 05:
Includes C and D. C says summary judgment is provided for.

[00:04:09] Speaker 05:
D says the parties can move for a ruling on the record if the parties, plural, move.

[00:04:16] Speaker 04:
Subsection 3... What does it say if the parties move?

[00:04:21] Speaker 04:
Subsection... It says in D, it says include the opportunity for parties to submit arguments and evidence on the record.

[00:04:27] Speaker 04:
without requiring routine use of oral presentations.

[00:04:30] Speaker 05:
Right.

[00:04:30] Speaker 05:
Parties is plural.

[00:04:32] Speaker 05:
And we believe Congress meant it to be plural.

[00:04:36] Speaker 05:
And subsection two.

[00:04:37] Speaker 04:
I mean, isn't the real problem with all of this is this is all just language instructing the court to tell the special masters, tell the court of federal claims what kind of rules you think you should adopt that comply with this.

[00:04:50] Speaker 04:
And so isn't what we should be looking at is the court of federal claims rule?

[00:04:56] Speaker 05:
Well, I don't think we can ignore the statute, Your Honor, and I think the statute would trump the rules promulgated by the court, but... Let's get to the statute.

[00:05:07] Speaker 05:
Right.

[00:05:09] Speaker 05:
So the statute came as a set, and subsection C and D provide for a ruling on the record in subsection D, which happens routinely in the vaccine program.

[00:05:21] Speaker 05:
We do that all the time.

[00:05:23] Speaker 02:
You're saying subsection D happens all the time.

[00:05:26] Speaker 02:
Right.

[00:05:26] Speaker 02:
What about subsection C, the summary judgment?

[00:05:29] Speaker 05:
Summary judgment has, I have never seen in any of my cases over my 20 years in this program, more than that, almost 30, any of my cases where the summary judgment standard was applied.

[00:05:42] Speaker 05:
I've found two cases where it was discussed by this court in Jay and Szymanowski.

[00:05:49] Speaker 02:
I'm not pronouncing that right, but... So I understand your position to be, I think, that, you know, D has to be read in light of C. Correct.

[00:06:00] Speaker 02:
And that why in the world would anyone use C if D exists?

[00:06:04] Speaker 02:
I kind of think those are your themes.

[00:06:06] Speaker 02:
Am I right?

[00:06:07] Speaker 05:
Right.

[00:06:07] Speaker 05:
If somebody can just say, I'm going to ask for ruling on the record, and I get to choose, and this is the real question before the court, and this is the thing a respondent's brief has not answered at this level,

[00:06:19] Speaker 05:
or below the claims court.

[00:06:21] Speaker 05:
If the moving party just gets to choose, why would they ever choose C?

[00:06:25] Speaker 05:
Why give your opponent extra protection in the summary judgment role?

[00:06:32] Speaker 05:
And if the special master, if it's not the moving party, let's say they're arguing, and again, this is not in their brief.

[00:06:40] Speaker 05:
If they're arguing, well, it's the special master.

[00:06:41] Speaker 05:
We can move for a ruling on the record.

[00:06:44] Speaker 05:
We can move for a summary proceeding.

[00:06:46] Speaker 05:
And then the special master just gets to choose.

[00:06:49] Speaker 05:
Well, then what's the standard there?

[00:06:51] Speaker 02:
I understand what you're saying.

[00:06:52] Speaker 02:
My concern, though, is the plain language of the statute says, special masters shall recommend to the court of the federal claims

[00:07:01] Speaker 02:
da-da-da, such rule shall, and C says, include the opportunity for summary judgment.

[00:07:07] Speaker 02:
And D, which is separate from C, says, include the opportunity for parties to submit arguments and evidence on the record without requiring routine use of oral presentations across examinations or hearings.

[00:07:18] Speaker 02:
They seem to need to be separate proceedings.

[00:07:20] Speaker 02:
I'm just plainly look at them.

[00:07:22] Speaker 02:
And then there is B, and there's A, and there's E. But they're all separate things.

[00:07:26] Speaker 02:
So I'm having a hard time.

[00:07:28] Speaker 05:
Understanding how I'm supposed to read this to say that D is somehow limited by C when none of the other provisions seem to have that sort of relationship well as I said and as you pointed out if When does Let me just take a step back from that and to say what we need to know is when do we get to UC?

[00:07:52] Speaker ?:
and

[00:07:53] Speaker 05:
C is in there.

[00:07:54] Speaker 04:
Well, you can use C whenever you want it.

[00:07:56] Speaker 04:
But it's probably because the rules are more flexible and don't require the use of the rules of civil procedure, most of you aren't going to use it.

[00:08:05] Speaker 04:
Because if you think you have evidence on the record, then you're going to want the special master to rule on the record in your favor and get a more favorable standard of review on appeal than a summary judgment standard.

[00:08:18] Speaker 05:
Well, in this case, the Cries and Becks wanted to use subsection C.

[00:08:23] Speaker 02:
Should you move for summary judgment?

[00:08:29] Speaker 04:
You wanted to force the government to move for summary judgment, but you don't get to make that call.

[00:08:34] Speaker 05:
Well, then if the non-moving party doesn't get the protection of the summary judgment rule, when do they get the protection of the summary judgment rule?

[00:08:41] Speaker 04:
When you think you have such a clear case that you don't need further development of the record, and you want to move for summary judgment.

[00:08:48] Speaker 02:
And you get to move for it even though the special master might not think that this is a case, or might not be inclined yet to decide whether to just decide the case on written submissions.

[00:09:00] Speaker 05:
A petitioner wants to foreclose respondent, the government, from having a hearing.

[00:09:06] Speaker 05:
All they have to do is say, I'm moving under subsection D. You do not get to have a hearing.

[00:09:13] Speaker 05:
You do not get to view the evidence and have the evidence viewed in the light most favorable to the non-moving party.

[00:09:20] Speaker 05:
We can do that to them, too, then.

[00:09:22] Speaker 04:
Sure, but they get the chance to submit evidence on the record.

[00:09:26] Speaker 05:
Well, that's not what happened here.

[00:09:29] Speaker 04:
Are you saying that the special master deprived you of the ability to submit written evidence on the record in any way?

[00:09:39] Speaker 04:
No.

[00:09:39] Speaker 04:
I thought your argument was the special master decided, I don't need an oral hearing or oral presentations.

[00:09:46] Speaker 05:
What the special master didn't do, which directly violates subsection C, is he did not view the evidence in a light most favorable to the non-moving party.

[00:09:56] Speaker 02:
What if he wasn't relying on Section C to decide the case, and instead he was relying on Section D?

[00:10:02] Speaker 05:
All right.

[00:10:03] Speaker 05:
Well, then what you're saying is, first off, we didn't move, so it wasn't the parties.

[00:10:09] Speaker 05:
So there's that plural versus singular question here.

[00:10:12] Speaker 05:
And the statute does not say either party can move for a ruling on the record, even with the opposition of the other party.

[00:10:22] Speaker 05:
And so the other the non moving party doesn't get the protection of Subsection see the summary judgment rule.

[00:10:29] Speaker 05:
It doesn't say that right so that's not what happened so when in a situation like this Where one party and then petitioner or respond?

[00:10:41] Speaker 05:
Moves for ruling on the record and the other party says I'm not going to join you on that and

[00:10:46] Speaker 05:
At that point, then it is a summary judgment proceeding.

[00:10:52] Speaker 05:
One party is moved, the non-moving party gets the protection of summary judgment standard.

[00:10:58] Speaker 05:
It is exactly the same as in the civil arena.

[00:11:01] Speaker 05:
That's what happens.

[00:11:02] Speaker 04:
But it's not, because this statute makes it clear that the special masters are allowed to ask for more flexible, less adversarial rules.

[00:11:15] Speaker 04:
It doesn't have to act the way it does in the civil arena.

[00:11:18] Speaker 04:
You're absolutely right.

[00:11:21] Speaker 04:
Under the federal rules of civil procedure, this doesn't happen.

[00:11:25] Speaker 04:
But you're seeming to impose a requirement on subsection D that just by mentioning that the parties, the plural parties, that that means it has to be an uncontested

[00:11:37] Speaker 04:
decision to do it on the written record.

[00:11:39] Speaker 04:
I don't see anything that says it has to be uncontested.

[00:11:42] Speaker 04:
It's saying parties to reference the fact that either party can do it.

[00:11:45] Speaker 05:
It doesn't say either party, Your Honor.

[00:11:48] Speaker 04:
It says the parties, though.

[00:11:48] Speaker 04:
It doesn't say uncontested.

[00:11:50] Speaker 04:
It doesn't say consent motion to have a trial on the written record.

[00:11:54] Speaker 04:
It says as an alternative to summary judgment, because summary judgment is before it, this is you can also do it on the written record.

[00:12:02] Speaker 05:
than what party would ever move for summary judgment.

[00:12:07] Speaker 04:
Well, again, I think probably almost never, because if you think you've got the evidence to support your case, you're going to want the written benefit of a decision by the Special Master Wang evidence.

[00:12:19] Speaker 04:
But there may be that rare case where you think your evidence is so overwhelmingly good that the government's not going to be able to get any disputed material as you've backed, or the government thinks your evidence is so overwhelmingly

[00:12:32] Speaker 04:
inferior that there's no disputed issues of material at that, that they don't want to go through all the notion of supplying an extended record.

[00:12:40] Speaker 02:
Can I ask you about section D3B?

[00:12:45] Speaker 02:
So looking at that same statute, D3B part, Roman numeral three, says that a special master may require the testimony of any person and the production of any documents as may be reasonable and necessary

[00:13:01] Speaker 02:
And then the very next provision, Roman numeral four says, that that special master shall afford all interested persons an opportunity to submit relevant written information.

[00:13:13] Speaker 02:
Why isn't this statutory provision consistent with the idea that a special master, you know, shall, must receive all written information, but only may require testimony and cross-examination?

[00:13:27] Speaker 02:
That's consistent with the idea that there's going to be special

[00:13:31] Speaker 02:
rules in these proceedings to allow a special master to make a determination on written documentation without following the rules for summary judgment?

[00:13:41] Speaker 05:
Well, when Congress passed this subsection, the entire subsection D, they included summary judgment as a provision.

[00:13:53] Speaker 05:
And if what you're saying is true, then that particular provision

[00:14:00] Speaker 05:
at the discretion of the special master, he can just take that out.

[00:14:04] Speaker 05:
He doesn't have to apply that.

[00:14:07] Speaker 05:
Is there a difference?

[00:14:08] Speaker 05:
I mean, if that logic were to hold, then why would anybody need a hearing?

[00:14:15] Speaker 05:
I mean, there are things that we present in a hearing that are important.

[00:14:19] Speaker 05:
Hearings are important.

[00:14:21] Speaker 05:
We have oral testimony.

[00:14:23] Speaker 05:
We can explain things.

[00:14:25] Speaker 05:
Mrs. Kreisenbeck could have given her testimony about the history of her son.

[00:14:30] Speaker 05:
All of that, I mean, it's not unimportant.

[00:14:34] Speaker 05:
It's not only important at the special master level, but it's important at the appellate level.

[00:14:38] Speaker 02:
Have there been attempts that you're aware of to go back to Congress to try to get this changed?

[00:14:46] Speaker 05:
No, I don't know anybody who has attempted that.

[00:14:50] Speaker 05:
I mean, it expressly says summary judgment in there.

[00:14:53] Speaker 05:
And this court in the Samansky decision talks about those.

[00:14:58] Speaker 05:
I mean, it's the holding in this court's Samansky decision that procedural due process rights of summary judgment proceedings, I mean, that was the reason for this court's holding in Samansky.

[00:15:12] Speaker 05:
I also don't think this is a particularly new, this isn't a new concept either.

[00:15:19] Speaker 01:
You're well into your rebuttal time and I'll restore some time

[00:15:36] Speaker 00:
Good morning, and may it please the Court, Julia Collison for the Secretary of Health and Human Services in this case.

[00:15:43] Speaker 00:
Notably, appellants are not challenging any of the special master's factual or causation determinations here, just his discretion to decide this case without a hearing.

[00:15:53] Speaker 00:
As the Court of Federal Claims has determined, well-settled case law establishes that the special master has that discretion to decide a case without a hearing,

[00:16:02] Speaker 00:
and that the special master in this case did not abuse his discretion in doing so.

[00:16:07] Speaker 04:
How would you respond to your friend's argument that if that's the case, nobody would ever choose summary judgment?

[00:16:15] Speaker 00:
As a practical matter in the vaccine program, summary judgment is very rarely used.

[00:16:21] Speaker 00:
Under the rules promulgated by the Court of Federal Claims pursuant to Act 12D provisions, rule

[00:16:31] Speaker 00:
8D specifically provides that a special master may decide a case on the basis of written submissions without an evidentiary hearing.

[00:16:40] Speaker 00:
And as noted by the Court of Federal Claims going back to 1997 and the special master in this case, that discretion of the special master is tempered by Rule 3B, which directs that the special master afford each party

[00:16:59] Speaker 00:
a, quote, full and fair opportunity to present their case and also directs the special master to create a record that is sufficient to allow review of the special master's decision.

[00:17:09] Speaker 00:
Getting back to your question, Judge Hughes, that, in general, in the vaccine program, special masters prefer to allow a full record to be built.

[00:17:20] Speaker 00:
And the case law that we have instructs that motions for summary judgment

[00:17:26] Speaker 00:
while they may be filed at any time in the proceedings, they must be used if a party wants to close the record early before the requirements of the 3B.

[00:17:40] Speaker 04:
If the claimants here wanted oral testimony and wanted to be able to cross the government's experts and all that kind of stuff, and the special master decided not to, is there review of that decision?

[00:17:55] Speaker 00:
Yes, the parties can ask the Court of Federal Claims and then this court to review whether the special master's decision not to hold an evidentiary hearing was an abuse of his discretion.

[00:18:09] Speaker 00:
The Court of Federal Claims, in this case, determined that the special master did not abuse his discretion.

[00:18:17] Speaker 00:
They specifically point out that the petitioners in this case

[00:18:22] Speaker 00:
had, quote, an ample opportunity to support their claims with written evidence and briefs, end quote, which resulted in a plethora of information.

[00:18:32] Speaker 00:
Specifically, the case was pending for 10 years.

[00:18:37] Speaker 00:
During the course of that time, 1,500 pages of medical records were submitted into the record.

[00:18:44] Speaker 00:
There were three expert reports filed on either side, along with attendant medical literature, and two sets of full briefing.

[00:18:52] Speaker 00:
So pre-hearing briefing and then briefing once the court determined that he would be deciding this case on the papers.

[00:19:00] Speaker 04:
Do you have any sense of how often these cases are decided just on the written record as opposed to written record plus live testimony?

[00:19:09] Speaker 00:
I have a sense.

[00:19:10] Speaker 00:
I asked the department.

[00:19:12] Speaker 00:
We do not keep specific statistics on that point.

[00:19:17] Speaker 00:
But the statistics that we do have suggest that

[00:19:21] Speaker 00:
The opportunity for a judge to decide a case on the record is really very important to the adjudication of vaccine claims in the vaccine program.

[00:19:30] Speaker 00:
As was noted at the Advisory Commission for Childhood Vaccinations at their most recent public meeting, more than 1,200 cases a year are filed in the program.

[00:19:41] Speaker 00:
The vast majority of those are, in fact, resolved by the parties without a ruling from the special master.

[00:19:51] Speaker 00:
There are only eight special masters to resolve the remainder of those claims.

[00:19:55] Speaker 00:
And at this point in time, when hearings are scheduled, which is frequently, they're being scheduled into 2020 and 2021.

[00:20:02] Speaker 02:
And you have no, like, not even a guesstimate or anything on about how many of those cases that aren't settled are decided on written submissions versus decided with an evidentiary hearing?

[00:20:17] Speaker 00:
So I do want to make the distinction between a case we consider a settled case, a case that's settled without the input of the special master.

[00:20:27] Speaker 00:
There will be a stipulation filed that both parties sign.

[00:20:31] Speaker 00:
When an entitlement ruling is issued, that is when a special master has decided the case, either granting or denying entitlement.

[00:20:40] Speaker 00:
And I would say the majority of the time a hearing has taken place.

[00:20:47] Speaker 00:
But sometimes the special master deems it appropriate to resolve a case without a hearing, as special masters have been doing for the last 30 years within the program.

[00:21:01] Speaker 00:
And what the petitioner is really asking for in this case is for the determination of whether the case is closed, whether that rule 3b requirement has been met, that that

[00:21:15] Speaker 00:
discretion be taken away from the special master and reside within the parties.

[00:21:19] Speaker 00:
Only the parties get to decide when the case is fully closed.

[00:21:23] Speaker 00:
I would just say that effectively takes away the special master's discretion under Rule 8D to ever decide a case without a hearing, as noted by the special master here in Appendix 52 of his opinion.

[00:21:41] Speaker 02:
You had said earlier that there was case law that decided this issue.

[00:21:46] Speaker 02:
Are you referring to our court's case law?

[00:21:49] Speaker 02:
I mean, our court's case law, I think the only precedential decision I'm aware of is Oliver, and it's footnote six in Oliver.

[00:21:56] Speaker 02:
Do you have something else?

[00:21:57] Speaker 00:
Sure.

[00:21:58] Speaker 00:
So the Court of Federal Claims discussed the... But do you have any other cases from this court?

[00:22:05] Speaker 00:
Sure.

[00:22:05] Speaker 00:
So in this court,

[00:22:09] Speaker 00:
The Burns case in 1993 considered a ruling on the record after there was a hearing for the fact witness only.

[00:22:22] Speaker 00:
And then there is the Oliver case in 2018.

[00:22:26] Speaker 00:
But in the interim, there are quite a few decisions that we look to from the Court of Federal Claims that have interpreted first vaccine

[00:22:36] Speaker 00:
Act provision 12D, and then the rules promulgated under that, specifically 8D and 3B.

[00:22:45] Speaker 00:
And 3B is the one that affords petitioner or either party the due process protections that petitioner appears to be concerned with in this particular case.

[00:23:08] Speaker 00:
I'd like to respond additionally to the appellant's argument in their reply brief in May today that it is not entirely clear when motions for summary judgment are to be used in this program.

[00:23:30] Speaker 00:
I think the Jay and Samansky opinions, both from this court, instruct that they are to be

[00:23:37] Speaker 00:
used when one of the parties wants to move for judgment in the case prior to the end of the case, or effectively at an arbitrary port in the litigation dictated by the movement and not the special master.

[00:23:55] Speaker 00:
The final point that I wanted to address was that

[00:24:06] Speaker 00:
Appellant's concern about fees in this case and It is my personal experiences is consistent with in fact the fee petition for interim fees that Appellant's petitioners filed in this case back in 2016 in that the majority of fees requested for reimbursement were from petitioners council and expert witnesses and

[00:24:35] Speaker 00:
the petitioner herself the petitioners themselves only requested $250 in reimbursement and so in this particular case in March of 2016 the petitioners were awarded $81,000 in fees reimbursement and petitioner seems to make the argument that

[00:25:03] Speaker 00:
they would potentially not be able to recover additional fees in addition to that amount.

[00:25:10] Speaker 00:
But I will point out that section 15E of the act permits special masters to make discretionary awards of attorneys' fees and costs, even when a petitioner is unsuccessful, if the court determines that the petition was brought in good faith and that there was a reasonable basis for the claim.

[00:25:28] Speaker 00:
And reasonable basis is

[00:25:31] Speaker 00:
Addressed the standard for that is addressed by the Simmons case which is a case from this court in 2017 As an example of when that procedure has been used before the pope case that is discussed Frequently by the special master in his opinion even though entitlement wasn't lost in that case He asking us to decide anything about fees Are you just telling us that if he wants fees more fees he can go back to the special master?

[00:25:58] Speaker ?:
I

[00:25:59] Speaker 00:
I am saying that if additional fees are requested, he can go back to the special master.

[00:26:03] Speaker 00:
That's not even before us, though.

[00:26:06] Speaker 00:
It's a question of it might go into.

[00:26:10] Speaker 03:
I get you're trying to provide us helpful context, but I'm not sure we asked about that.

[00:26:16] Speaker 00:
OK.

[00:26:16] Speaker 00:
Thank you.

[00:26:16] Speaker 00:
I mean, unless there are any additional questions by the panel, the secretary respectfully requests that the opinion be affirmed.

[00:26:29] Speaker 01:
All right, thank you.

[00:26:34] Speaker 01:
Gage, you have a little bit over a minute.

[00:26:41] Speaker 05:
Thank you, your honor.

[00:26:44] Speaker 05:
So according to the government, they get to decide whether or not the opposing party, the petitioner, gets the protections of the summary judgment rule, rule 56.

[00:26:58] Speaker 05:
That's their position now.

[00:27:00] Speaker 01:
You can ask for one.

[00:27:01] Speaker 01:
You didn't ask for a summary judgment hearing.

[00:27:04] Speaker 01:
No, I did not.

[00:27:05] Speaker 01:
Well, how can you complain about it here?

[00:27:07] Speaker 04:
I think according to the government, the special master gets to decide when he thinks the record is sufficiently developed for him to make a decision.

[00:27:16] Speaker 04:
And if you want to object, you can.

[00:27:18] Speaker 04:
And that can be reviewed by the Court of Federal Claims and by us.

[00:27:22] Speaker 05:
But the question is, do you review it under Rule 56 standard or not?

[00:27:29] Speaker 05:
Review what?

[00:27:33] Speaker 05:
The special master's decision.

[00:27:34] Speaker 01:
Whether or not to grant you summary judgment when you have moved for summary judgment, we don't have that situation before us.

[00:27:40] Speaker 05:
No, no.

[00:27:41] Speaker 04:
The special master's decision to decide the record is sufficiently developed that I don't need an oral hearing?

[00:27:48] Speaker 05:
Right.

[00:27:49] Speaker 05:
Well, no, not even that.

[00:27:52] Speaker 05:
They moved

[00:27:53] Speaker 05:
for summary judgment.

[00:27:55] Speaker 04:
They didn't move for summary judgment.

[00:27:57] Speaker 04:
They moved for a decision on the written record.

[00:28:01] Speaker 04:
If the special master had thought that the record wasn't sufficiently developed, or if you had objected and wanted to put in additional written testimony, additional evidence, or requested a hearing, you're allowed to do that.

[00:28:15] Speaker 04:
The special master is the one that got to make the final call.

[00:28:19] Speaker 04:
You're suggesting that the government is controlling this.

[00:28:21] Speaker 04:
It's just inconsistent with what happened here.

[00:28:24] Speaker 04:
The special master determined that he did not need oral testimony.

[00:28:29] Speaker 04:
If that's the decision you're objecting to, then you could have objected to that decision and said it was an abuse of discretion.

[00:28:37] Speaker 04:
But that's not the argument you presented.

[00:28:40] Speaker 05:
Okay, so under that circumstance, where petitioner objects to a ruling prior to the hearing, is Rule 56 triggered?

[00:28:52] Speaker 05:
That's my question to this court.

[00:28:55] Speaker 01:
Let me ask you a question, just to be clear.

[00:28:57] Speaker 01:
You didn't challenge any of the merits of the decision, correct?

[00:29:01] Speaker 01:
You're only bringing on appeal the

[00:29:06] Speaker 05:
The procedure before I'm only appeal the appeal is of not granting us the protection of rule 56 when he viewed the evidence that is true However, we disagreed Across the board with this fact-finding.

[00:29:21] Speaker 05:
I mean, it's it's in our it's our statement of facts, but okay Thank you very much.

[00:29:27] Speaker 01:
Thank you.

[00:29:28] Speaker 01:
That's it for our arguments today.

[00:29:29] Speaker 01:
We have everybody's arguments and briefs this court now remains in recent