[00:00:00] Speaker 05:
Mr. Modi, please proceed.

[00:00:09] Speaker 01:
Thank you, Your Honor, and may it please the Court.

[00:00:12] Speaker 01:
First, I'd like to acknowledge that Mr. Conley Monk has traveled to be with us in court today.

[00:00:17] Speaker 05:
Thank you.

[00:00:18] Speaker 05:
Welcome to the courthouse.

[00:00:20] Speaker 01:
We are here on behalf of the 470,000 disabled veterans who will wait, on average, six years for a decision from the Board of Veterans' Appeals.

[00:00:29] Speaker 03:
What was that number again?

[00:00:31] Speaker 01:
Roughly 470,000, Your Honor, and six years for a decision.

[00:00:36] Speaker 04:
That's your problem, isn't it?

[00:00:40] Speaker 04:
Where is the commonality among 470,000 people?

[00:00:44] Speaker 01:
Your Honor, the commonality is that all of these veterans are mired in a system of systemic delay.

[00:00:49] Speaker 01:
The Walmart case requires a class members to ask a common question that admits a common answer that will resolve this litigation.

[00:00:56] Speaker 04:
But is the delay, the specific cause of the delay, common to all of them?

[00:01:03] Speaker 01:
Your Honor, it is plaintiff's legal theory that the cause of the delay does not matter.

[00:01:08] Speaker 01:
At a certain point, delay becomes per se unreasonable under

[00:01:12] Speaker 04:
But the remedy has to relate to the cause, doesn't it?

[00:01:16] Speaker 01:
No, Your Honor.

[00:01:17] Speaker 01:
There are cases that have held, for instance, in the due process context that at six months, the detention of a non-citizen becomes a per se violation of the due process clause, regardless of the reasons that the government or justification that the government may offer for that delay.

[00:01:33] Speaker 01:
And similarly in track, the reasons for the government's delay are not a part of the track analysis.

[00:01:39] Speaker 01:
The first factor of the track analysis, which is the most important, states that there must be a rule of reason that governs the agency delay, but that looks to the length of the delay and whether the length is reasonable given, for instance, the complexity of the agency action, not any particular cause that might lead to the action.

[00:01:56] Speaker 01:
And it is plaintiff's legal theory that

[00:01:58] Speaker 01:
At a certain point, the delay becomes unreasonable.

[00:02:02] Speaker 01:
And that's the common question that this court needs to decide.

[00:02:04] Speaker 03:
When you look at the reason of delay, are you required to look at every specific veteran?

[00:02:09] Speaker 03:
Or is it enough to look at the process as a whole?

[00:02:13] Speaker 03:
You used the word systemic.

[00:02:16] Speaker 03:
Does that equate to inherent?

[00:02:18] Speaker 01:
Your Honor, I think when we say systemic, what I mean is that this is harmful government conduct that affects every single veteran in the class.

[00:02:26] Speaker 01:
Every single veteran, when they have

[00:02:28] Speaker 01:
file an appeal or when they file their notice of disagreement is essentially told to get in line and wait.

[00:02:34] Speaker 01:
And this is something that the VA's OIG report has stated, that veterans have to learn to live with the waiting.

[00:02:39] Speaker 01:
There's no way to escape that delay, and that's what we mean by systemic.

[00:02:46] Speaker 01:
It's your question about whether the harm is individualized.

[00:02:49] Speaker 01:
At this point, to find commonality, you only need to find that the delay becomes per se unreasonable at a certain point, regardless of any individualized differences that may exist.

[00:03:02] Speaker 01:
Regardless of the veteran's individual circumstances,

[00:03:05] Speaker 01:
It is our position that at a certain point, the delay becomes unreasonable.

[00:03:08] Speaker 03:
And if I could- How do we establish that?

[00:03:11] Speaker 03:
Or who establishes that?

[00:03:12] Speaker 03:
Congress or the courts?

[00:03:15] Speaker 03:
And then at what point is it?

[00:03:17] Speaker 03:
Two years?

[00:03:18] Speaker 03:
Five years?

[00:03:18] Speaker 03:
Ten years?

[00:03:20] Speaker 01:
Your Honor, the point at which the delay becomes unreasonable is we submit the merits question, not the question of whether there's commonality.

[00:03:28] Speaker 01:
And if I could reference something that the government has represented, the secretary has represented below, and we cited this at page two of our reply brief,

[00:03:35] Speaker 01:
Secretary has stated that under certain circumstances, even a 100-year delay could be reasonable.

[00:03:41] Speaker 01:
And that simply cannot be the case.

[00:03:43] Speaker 01:
It cannot be the case in a system where these are disabled veterans, where 1 in 14 veterans die waiting for a decision on their appeal.

[00:03:52] Speaker 01:
That was true in the year 2016 when 1 in 14 of the cases resolved by the Board of Veterans' Appeals was a result of the veteran passing away.

[00:04:01] Speaker 01:
And so in a system like that, it can't be the case that there is no point at which delay becomes unreasonable.

[00:04:07] Speaker 03:
It seems to me that the Veterans Court is not saying that we can't aggregate cases and that it's never possible to have a case proceed to a marriage type finding.

[00:04:22] Speaker 03:
It's just saying that in this case, we don't get to that.

[00:04:26] Speaker 01:
How do you answer to that?

[00:04:28] Speaker 01:
That's correct, Your Honor.

[00:04:30] Speaker 01:
Our argument is that the plaintiff, excuse me, the CABC imposed a heightened commonality standard that contravened the Walmart standard below.

[00:04:37] Speaker 01:
They required plaintiffs in this case to identify, for instance,

[00:04:42] Speaker 01:
specific practices and policies to identify the causes for the delay.

[00:04:46] Speaker 01:
And nowhere is that required by Rule 23 to find commonality.

[00:04:52] Speaker 01:
And so that's the error of law.

[00:04:53] Speaker 04:
But how do you find a remedy?

[00:04:55] Speaker 04:
If one cause is there aren't enough physicians around, the remedy is to hire more physicians.

[00:05:03] Speaker 04:
If another is because files aren't moved from one place to another effectively, that can be the remedy.

[00:05:12] Speaker 04:
But in the absence of some specificity, where's the remedy?

[00:05:16] Speaker 01:
Your Honor, the remedy that the class members seek is that the VA adjudicate all appeals within a certain period of time.

[00:05:25] Speaker 01:
And that's a single injunction that would apply to every single class member.

[00:05:29] Speaker 01:
And that's relief that every class member would benefit from.

[00:05:31] Speaker 04:
Isn't that for Congress?

[00:05:34] Speaker 01:
No, Your Honor.

[00:05:36] Speaker 01:
This court has an independent responsibility to state when there is a violation of law, whether it's a statutory violation or a constitutional violation, and remedy that harm.

[00:05:45] Speaker 01:
And the fact that legislative action may occur in the future is not a reason to not act.

[00:05:52] Speaker 01:
And if I could reference FEMA, which is Congress's ostensible solution to the systemic delay issue, that does

[00:06:01] Speaker 01:
does nothing for the veterans who are waiting in the legacy system.

[00:06:04] Speaker 01:
Veterans in the legacy system will still have to wait in the current system, which means that they are still going to be subject to multi-year delays.

[00:06:11] Speaker 01:
And the VA cannot offer a timetable for when it will resolve the legacy appeals at all.

[00:06:17] Speaker 01:
And so there's no legislative solution.

[00:06:19] Speaker 03:
What happens to the veteran whom, through his or her own volition,

[00:06:25] Speaker 03:
decides, for example, in the process to pursue a different claim or different argument or to get another medical opinion and that's the cause of the delay or a cause, right?

[00:06:40] Speaker 03:
That would be a cause of delay.

[00:06:43] Speaker 01:
Your Honor, our argument is that first the overwhelming majority of delay at every single stage is due to VA inaction and that's something that this court

[00:06:52] Speaker 01:
Judge Moore of this court recognized in her concurrence in Martin that many of the delays at various stages of the process are simply inexplicable.

[00:07:02] Speaker 01:
It takes 500 days to issue the SOC.

[00:07:04] Speaker 03:
But in that case, it was something specific and tangible.

[00:07:08] Speaker 03:
You're dealing with a particular certification form.

[00:07:12] Speaker 03:
And I believe that it only took minutes to fill out.

[00:07:17] Speaker 03:
But show me what we have here in this case that's similar to that.

[00:07:22] Speaker 01:
So this is, of course, an amalgamation of the various stages of delay.

[00:07:27] Speaker 01:
And so it includes both the issuance of the SOC, the certification stage transfer, et cetera.

[00:07:32] Speaker 01:
But the point is that from the veterans' perspective, veterans are made to wait almost six years for a decision.

[00:07:39] Speaker 01:
And that's the legal harm that veterans are experiencing.

[00:07:45] Speaker 04:
If you had a claim that these 4,000 veterans

[00:07:52] Speaker 04:
had SOCs delayed an unreasonable amount of time, then maybe you would have specificity and commonality sufficient to generate a remedy.

[00:08:06] Speaker 01:
Your Honor, I think the Walmart standard is simply that there's a single common contention that admits a common answer.

[00:08:12] Speaker 01:
And so, of course, there would also be commonality for cases that challenges a specific stage of the delay.

[00:08:18] Speaker 01:
But our argument is that at a certain

[00:08:20] Speaker 01:
The property entitlement issue for the due process violation, for instance, is a decision on the appeal.

[00:08:27] Speaker 01:
That is the legal harm.

[00:08:28] Speaker 01:
And so, regardless of whether there's commonality for a specific stage of the process, there is certainly commonality for veterans who seek to actually have a decision from the board on their appeal.

[00:08:42] Speaker 01:
actual legal harm that veterans are experiencing, the veterans in this class.

[00:08:46] Speaker 03:
Wouldn't a systemic or an inherent delay satisfy the commonality test?

[00:08:55] Speaker 01:
Your Honor, could you repeat the question?

[00:08:56] Speaker 03:
Wouldn't a systemic or an inherent delay in the entire process satisfy the commonality test here?

[00:09:03] Speaker 01:
Yes.

[00:09:04] Speaker 01:
And I think that's our argument.

[00:09:05] Speaker 01:
Our argument is that here, just as cases have found challenging, for instance, government conduct in

[00:09:13] Speaker 01:
The prisons in the prison conditions cases, Parsons versus Ryan is insured here.

[00:09:18] Speaker 03:
So is that enough?

[00:09:18] Speaker 03:
We don't have to find a common remedy.

[00:09:22] Speaker 01:
Well, Your Honor, I think plaintiffs do offer a common remedy.

[00:09:25] Speaker 01:
And one of the things that the Walmart court said was that the key to the 23B2 class is that there is a single injunction that remedies the harm.

[00:09:33] Speaker 01:
And the injunction that the class members seek is that the VA adjudicate these appeals within a certain period of time.

[00:09:41] Speaker 01:
That period of time.

[00:09:43] Speaker 01:
is a question for the merits, and that's a question that is later on in the litigation versus this earlier stage where we're just talking about commonality.

[00:09:51] Speaker 03:
So could you decide that question in this case?

[00:09:53] Speaker 03:
Could this court decide that question?

[00:09:56] Speaker 01:
I think this court could, but I think that goes to the merits, which is not briefed before this court right now, which is at what point delay becomes per se unreasonable.

[00:10:04] Speaker 01:
It is our argument that that occurs at one year, although.

[00:10:08] Speaker 03:
I think you're beginning to undo your argument.

[00:10:10] Speaker 03:
I mean, once you start briefing as to why for Betty, here's a delay, and for Sam, here's the delay, you may be talking yourself out of the application of 23 here.

[00:10:24] Speaker 01:
Your honor, I see my time is up, so if I may just respond briefly.

[00:10:26] Speaker 01:
I think the argument is that at a certain point, the lay becomes unreasonable as a matter of law for all plaintiffs.

[00:10:34] Speaker 01:
And that is the common question and the common answer that this court needs to find to find commonality.

[00:10:39] Speaker 01:
The question of the remedy is a question that the court would reach, that the CAVC would reach in the first instance after the marriage.

[00:10:45] Speaker 03:
Are you suggesting we are the ones that answer that question?

[00:10:49] Speaker 03:
Or is it the VA?

[00:10:52] Speaker 01:
That's a question for the court.

[00:10:53] Speaker 01:
for the CVC to decide on the first instance, Your Honor.

[00:10:57] Speaker 01:
Thank you.

[00:10:59] Speaker 05:
Thank you.

[00:11:03] Speaker 02:
May I please the court?

[00:11:05] Speaker 05:
It can't be that the government is condoning at least some of the instances for some of the petitioners here.

[00:11:14] Speaker 05:
Is there any consideration

[00:11:19] Speaker 05:
being given to remedying the situation that has been presented to us?

[00:11:26] Speaker 02:
Not to this Court, because Congress is actively engaged in this.

[00:11:30] Speaker 02:
The Appeals Modernization Act that got passed two years ago was designed to address this very issue.

[00:11:36] Speaker 02:
to provide lanes so that folks entering the system could decide whether they wanted a quick review, which would not involve any further development or entertaining any further evidence that that individual might provide.

[00:11:50] Speaker 02:
as opposed to the regular, a more regular channel which would provide folks who wanted to provide additional evidence or wanted another medical examination, things that normally take a lot of time.

[00:12:00] Speaker 02:
And this court said in Martin were the kinds of things which needed to be taken into account during the first track factor analysis.

[00:12:07] Speaker 02:
and would explain why it would be perfectly reasonable in some of those cases for a delay following the notice of disagreement to exceed a year.

[00:12:15] Speaker 02:
So Congress is very much involved.

[00:12:17] Speaker 02:
The secretary is very much involved.

[00:12:19] Speaker 02:
We just issued rules implementing the new Appeal Modernization Act, which have been challenged, and this court will hear those.

[00:12:27] Speaker 02:
So frankly, in the words of the Supreme Court and Heckler, when they were dealing with similar delays in the Social Security process,

[00:12:34] Speaker 02:
What this court needs to keep in mind when determining whether some sort of class action relief is appropriate is this isn't something out there that people have been ignoring.

[00:12:44] Speaker 02:
And suddenly we have a class that says, look, we got a problem and we need to bring attention to it.

[00:12:49] Speaker 02:
This is a problem that this court knows that the VA has been struggling with, dealing with.

[00:12:54] Speaker 02:
We say it right in our briefs for a long time.

[00:12:58] Speaker 02:
And we're taking every step we can to make sure that this process as a whole, with all of the sub-processes that take place, are all addressed in a manner that can speed it up so that people don't have to wait very long.

[00:13:14] Speaker 04:
But what the VA and Congress may be doing doesn't provide the answer.

[00:13:19] Speaker 04:
to whether they have a proper class action here.

[00:13:21] Speaker 02:
Yeah, so as the questioning this morning was addressing, I mean, Walmart does affect change.

[00:13:29] Speaker 02:
It used to be you could come and have a common question.

[00:13:31] Speaker 02:
Now you need to have a common answer.

[00:13:33] Speaker 02:
You need to have a one-stroke solution.

[00:13:35] Speaker 03:
But not a common remedy.

[00:13:38] Speaker 02:
Remedy the remedy here cannot be Well, you were you have a you delay back Walmart does not require a common remedy Walmart requires a common one-stroke solution and if you want to call that a remedy it could be a remedy

[00:13:53] Speaker 03:
No, but when you talk about remedy, and the government talks about remedy, they're talking about the remedy that's specifically tailored to an individual, not the one... Okay.

[00:14:04] Speaker 03:
So if we were to find a single brushstroke to provide a remedy, then that would fit this case as well.

[00:14:13] Speaker 02:
If you had a single brushstroke, then you might be able to say, despite the fact that, as it may apply to individuals,

[00:14:21] Speaker 02:
You'd have to have that process.

[00:14:23] Speaker 02:
That could satisfy the Walmart.

[00:14:25] Speaker 02:
Godsee, the case we cited in our Rule 28, is such a case.

[00:14:29] Speaker 03:
So this case could satisfy Walmart, but for we're missing the broad stroke.

[00:14:36] Speaker 03:
The commonality.

[00:14:37] Speaker 03:
Let me put it to you this way.

[00:14:38] Speaker 03:
Well, but let's make sure we're talking about the same thing.

[00:14:40] Speaker 03:
We're not talking about commonality, meaning that every veteran is required to have a specific remedy tailored to their

[00:14:49] Speaker 03:
particular issue.

[00:14:50] Speaker 03:
That's not the broad brush.

[00:14:53] Speaker 02:
No, not if I'm understanding you correctly.

[00:14:56] Speaker 02:
The complaint at paragraphs 52 and 53, appendix 465 and 480.

[00:15:01] Speaker 02:
465 is the beginning of the complaint.

[00:15:03] Speaker 02:
But it's appendix 480.

[00:15:05] Speaker 02:
This is the complaint.

[00:15:06] Speaker 02:
They suggest there that the delay in excess of a year is unreasonable.

[00:15:14] Speaker 02:
That would appear to be the remedy.

[00:15:16] Speaker 02:
the Veterans Court to do is entertain a class.

[00:15:19] Speaker 02:
And at the end of the day, it would say any delay in excess of a year is a violation of due process.

[00:15:27] Speaker 02:
Now, Judge Allen, in his dissent, changes that.

[00:15:30] Speaker 02:
And it appears that petitioners sort of adopted that, although that's not what their complaint says, to more of a, well, is there some period of delay?

[00:15:38] Speaker 05:
Well, maybe it's as simple as the problem is that

[00:15:44] Speaker 05:
the way they define the class, it applies to everybody.

[00:15:47] Speaker 05:
Whatever happens during the year, even if, for example, during that year there is a good deal of medical work and so on, with perhaps a less comprehensive complaint or attempted resolution all at one stroke, there is indeed a readily definable class, let's just say, one year after

[00:16:14] Speaker 05:
all the evidence is in, rather than one year from when the initial request is made.

[00:16:21] Speaker 05:
There's a totally different situation, a different class, significantly more limited, but also one where the delay would be more conspicuously egregious.

[00:16:37] Speaker 05:
Isn't there, or is there, to make this all or nothing,

[00:16:42] Speaker 05:
Perhaps that's the way one goes about trying to bring these activities to judicial attention.

[00:16:49] Speaker 05:
But meanwhile, this has been in Congress for quite a while, has it not?

[00:16:54] Speaker 05:
And we haven't seen a resolution.

[00:16:57] Speaker 02:
I mean, to be fair to Congress, that's a pretty comprehensive statute that they just issued in 2017 trying to address

[00:17:04] Speaker 02:
address the issue.

[00:17:06] Speaker 02:
But to answer your question, Judge Newman, yes, a more focused class would survive.

[00:17:12] Speaker 02:
First of all, as this Court has already held in Monk 1, or Monk 2, I don't remember, but it's this Court's first Monk decision, the Veterans Court has to consider class relief in their cases when it's asked.

[00:17:25] Speaker 02:
So that hurdle we've already passed.

[00:17:27] Speaker 02:
Now the question is, can we identify a class with sufficient commonality?

[00:17:31] Speaker 02:
And in the case that we cited in our Rule 28, the Veterans Court certified that class.

[00:17:39] Speaker 02:
That deals with just the certification question, which is a more, if you will, ministerial act, as this Court suggests.

[00:17:46] Speaker 02:
It could be the situation in Martin, as opposed to, as you described, Judge Newman, the situation which I would suspect, and I don't have any empirical evidence, but having practiced before this Court on these kinds of issues for a long time,

[00:18:00] Speaker 02:
I would not be surprised if over 50% of the 470,000 potential claims in this case would prefer that they do not have a situation in which the court issues an order saying, you need to issue a decision within one year, irrespective of the evidence that you want to have.

[00:18:19] Speaker 03:
That would be the decision, correct?

[00:18:21] Speaker 03:
If they want to go pursue a medical opinion

[00:18:24] Speaker 03:
somehow take some action that delays the process.

[00:18:29] Speaker 03:
That's a decision.

[00:18:30] Speaker 03:
You still have 225,000 veterans who are delayed by a systematic process.

[00:18:36] Speaker 02:
When you are at this stage of the game, your honor, analyzing the question of commonality of a class of 470,000, and the answer is, well, 50 or 60% of them could opt out, I think you have a commonality problem.

[00:18:51] Speaker 03:
When those 50 or 60% are opting out because they don't want the reason, but but if if and I think we've already gotten to the point where we can say, you know, I think it was with your opponent or counsel that.

[00:19:09] Speaker 03:
that a systemic delay or an inherent delay provides commonality.

[00:19:13] Speaker 02:
No, I disagree.

[00:19:15] Speaker 02:
We disagree.

[00:19:15] Speaker 02:
That's just a label that you're putting on something.

[00:19:18] Speaker 02:
You disagree because it doesn't give the remedy.

[00:19:20] Speaker 02:
If all that is wanted here is a pronouncement by a judicial body that the VA is encountering delays, then what have we accomplished?

[00:19:29] Speaker 02:
Why do we go to the courts in the first place?

[00:19:32] Speaker 02:
We go to the courts for remedies to solutions that we have.

[00:19:35] Speaker 02:
The remedy in this case can't be what Judge Allen suggested in his dissent.

[00:19:39] Speaker 03:
At the end of the day... But it can be a single broad-brush stroke.

[00:19:43] Speaker 02:
It can be like the Godsey case, which the Veterans Court just handled.

[00:19:47] Speaker 03:
It could be that, but it can also be a single broad-brush stroke.

[00:19:51] Speaker 02:
You have to have some sort of, you know, what are we gaining from the process?

[00:19:59] Speaker 02:
You can't come in... This is what the Supreme Court said exactly in Hector.

[00:20:02] Speaker 02:
The fact that Congress is actively engaged and the Secretary is actively engaged in trying to address systemic delays, which isn't a single process.

[00:20:12] Speaker 02:
It's all kinds of things.

[00:20:14] Speaker 02:
It's 25 years of Congress, the Veterans Administration, and this Court providing process to veterans.

[00:20:23] Speaker 02:
This court providing the process.

[00:20:25] Speaker 02:
Now we have all kinds of process for these veterans and we have a system that is clogged.

[00:20:33] Speaker 02:
And we need to address that.

[00:20:34] Speaker 02:
And we know that.

[00:20:35] Speaker 02:
Congress knows that we're working together.

[00:20:37] Speaker 02:
But we want to do it in a way that doesn't deprive people of process.

[00:20:40] Speaker 02:
So when I suggest to your honor that the majority of 470,000 people who may, like Judge Newman's example,

[00:20:47] Speaker 02:
be responding to the NOD with new evidence.

[00:20:51] Speaker 02:
They read the 5104 decision that they get.

[00:20:54] Speaker 02:
And they say, wait a minute.

[00:20:56] Speaker 02:
Why didn't I get my benefits?

[00:20:58] Speaker 02:
I know I have that evidence.

[00:20:59] Speaker 02:
I didn't understand that they were asking.

[00:21:01] Speaker 02:
So they respond, and they give him that evidence.

[00:21:05] Speaker 02:
Then you're right into the track one rule of reason question, because the development that takes place at that point isn't ministerial.

[00:21:12] Speaker 02:
They have to do it in every case.

[00:21:14] Speaker 02:
And that's one of the actual problems with this particular class, where you start the process at the NOD filing.

[00:21:20] Speaker 02:
I'm diverging from my answer a little bit.

[00:21:22] Speaker 02:
I'm demonstrating to the court how complicated this is.

[00:21:26] Speaker 02:
And you end it at the board decision.

[00:21:28] Speaker 02:
The first thing that happens when you file an NOD under 38 CFR 1926 is that the RO re-engages the record.

[00:21:34] Speaker 02:
They take whatever is in that notice of disagreement, whatever statement, whatever evidence might accompany it, and they redo it.

[00:21:41] Speaker 02:
There's also the possibility, provided by regulation, for a decision review officer review.

[00:21:46] Speaker 02:
That would be like Judge Newman, who was the RO, and she issued the decision.

[00:21:50] Speaker 02:
And when the NOD comes in, they say, could I get a DRO?

[00:21:53] Speaker 02:
I want Judge Raina to look at it.

[00:21:55] Speaker 02:
You haven't had any time in this case.

[00:21:56] Speaker 02:
You're brand new to the case.

[00:21:58] Speaker 02:
Time gets added to the process.

[00:21:59] Speaker 02:
These are all track one factors that this court has already held in Martin could merit delay well beyond a year in the process related to developing claims.

[00:22:10] Speaker 03:
All of these people are included in this class.

[00:22:12] Speaker 03:
I appreciate your thoroughness in your answers.

[00:22:17] Speaker 03:
We're well aware of.

[00:22:19] Speaker 03:
the VA process, and we're especially well aware of the delays.

[00:22:25] Speaker 03:
We have addressed the delay issue before, and Congress is aware of that.

[00:22:33] Speaker 03:
Congress has been aware and Congress has not come up with a solution.

[00:22:37] Speaker 02:
Congress has not imposed a statutory requirement to issue a board decision within one year.

[00:22:43] Speaker 03:
So now we know that the VA, the Veterans Court has authority to aggregate cases.

[00:22:52] Speaker 03:
That brings us to this particular case.

[00:22:53] Speaker 02:
Which this court reviews for an abuse of discretion.

[00:22:56] Speaker 02:
and the lower court, the court that would actually have to entertain this case and come up with a one-stroke solution, found that they could not, given the complexity of the issues presented.

[00:23:10] Speaker 02:
We could not come up with the... Oh, I think you're in appellate court reviewing a class decision.

[00:23:15] Speaker 03:
So no, I would say that... So if we disagree, we would have to vacate and remand.

[00:23:19] Speaker 02:
You would send it back for consideration given whatever direction you provide, which I suppose would be that you found that they abused their discretion in finding that the class was too unwieldy to result in one-stroke relief as per the Walmart decision.

[00:23:37] Speaker 02:
We would submit that would be error because we think it's a straightforward application of Walmart in this case.

[00:23:44] Speaker 02:
In fact, I mean, Walmart has the same kind of thing.

[00:23:46] Speaker 02:
You could have labeled, as the petitioners did, employment, hiring, and discrimination practices.

[00:23:53] Speaker 02:
But what undergirded that claim was a whole slew of various practices and policies by Wal-Mart.

[00:24:02] Speaker 03:
Let me ask you this other question.

[00:24:05] Speaker 03:
In view of the recent case, is this appeal moot in view of the series?

[00:24:09] Speaker 02:
So what I think how this would work out is because the issue of whether these folks who, as you correctly point out, most of them, if not all, I think Mr. Dodson,

[00:24:23] Speaker 02:
He did not get his NOD or whatever, but they went on to rule that the delay was not unreasonable.

[00:24:30] Speaker 03:
I think the nine named plaintiffs.

[00:24:33] Speaker 02:
They all received their board decisions.

[00:24:35] Speaker 02:
So the question then, I suppose, would be whether they can still be retained as class for their role as class representatives.

[00:24:44] Speaker 03:
No, what I'm asking you is, does that move this action?

[00:24:47] Speaker 02:
I don't think so.

[00:24:48] Speaker 02:
I think that it's a class, and then they can change representatives.

[00:24:52] Speaker 02:
I mean, if I'm wrong about that, I'll file a brief.

[00:24:57] Speaker 02:
But the bottom line from our perspective is that because this court is reviewing the decision below for an abuse of discretion, the question really for this court is, was it reasonable for that court to say that there were too many balls in the air for this to satisfy the commonality standard?

[00:25:17] Speaker 02:
So you're sitting in review of that court, which has already held that there were too many balls in the air.

[00:25:22] Speaker 02:
I think what we've done here this morning is to further demonstrate that there are a lot of balls in the air.

[00:25:27] Speaker 02:
And many of those balls are of the kind that in Martin would, on their face, not result in a finding of unreasonableness within a year, the 1926 thing at a minimum.

[00:25:40] Speaker 03:
Well, I think the problem here, there's a lot of balls in the air, except they're just not being twirled.

[00:25:45] Speaker 02:
Well, so the end of the day, you have to determine whether this is the best mechanism, and what are you going to get at the end of the day?

[00:25:52] Speaker 02:
What is the one-stroke solution?

[00:25:54] Speaker 02:
And if your one-stroke solution is simply a pronouncement by the Veterans Court along the lines of Judge Allen's dissent, which said, there's delays, VA, go do something about it, then

[00:26:05] Speaker 02:
I don't think that that's anything that any of these class members really want.

[00:26:09] Speaker 02:
I think what they want, as they've demonstrated, and they've demonstrated an ability to do it, in the Ghazi case, is to focus on particularized practices that might be susceptible to some sort of relief, like, you know, for example, a perfect example of a class action would be the Blue Water folks.

[00:26:29] Speaker 02:
and they're arguing about there's lots of them, you know, and they're arguing about where does the line get drawn.

[00:26:34] Speaker 02:
That's the kind of thing that would be appropriate for class action.

[00:26:37] Speaker 02:
But when you're talking about trying to satisfy all the track factors and you're talking about a class in which

[00:26:43] Speaker 02:
Everyone is allowed to supplement the record and to react in their NOD to why they think they were denied the claim.

[00:26:50] Speaker 02:
And that very reaction precipitates further development by various bodies.

[00:26:55] Speaker 02:
That's not the kind of thing that can satisfy what this complaint seeks, which is a one-year finding for unreasonable delay.

[00:27:03] Speaker 03:
So, just for clarification, I think you said that when we review, if we were to review the Veterans Court decision, we would do so, or part of it, under an abuse of discretion standard.

[00:27:16] Speaker 02:
That's how I understand that these have been done.

[00:27:20] Speaker 02:
Excuse me?

[00:27:20] Speaker 03:
Is it a legal question we'd be addressing?

[00:27:23] Speaker 02:
That's a very good question, Your Honor.

[00:27:25] Speaker 02:
Because as this court's discussed in dealing with the All Writs Act in Lamb and Beasley and trying to balance it with 7292D's prohibition against application of law to fact, it's a sort of windy highway that this court needs to follow.

[00:27:42] Speaker 02:
Because this court has found in Lamb and Beasley that it can address those basic factors that are articulated by a standard, like commonality or whatnot.

[00:27:51] Speaker 02:
But when, in trying to address those factors, the court has to delve in to particular questions that are best left to the VA process, like would be the normal things you would encounter in a sort of VA review, the application of VA law to the facts of the case, that's where the line stops and the court needs to accept what has already been set forth because it can't overturn or re-review those kinds of applications of law to fact.

[00:28:17] Speaker 02:
So it's a complicated maneuver.

[00:28:19] Speaker 02:
But the court has provided guidelines in Lamb and Beasley on how to do it.

[00:28:26] Speaker 05:
OK.

[00:28:26] Speaker 05:
Thank you, Mr. Hockey.

[00:28:29] Speaker 05:
Mr. Reisner.

[00:28:44] Speaker 00:
Good morning.

[00:28:45] Speaker 00:
May it please the court.

[00:28:46] Speaker 00:
Judge Raina, let me answer some of your questions directly.

[00:28:50] Speaker 00:
The standard is review of a legal error under 7292.

[00:28:53] Speaker 00:
The nine petitioners are not all moot.

[00:28:57] Speaker 00:
Mr. Dolphin has been waiting five years, one month, and two days for a decision on his NOD.

[00:29:04] Speaker 03:
Even if that particular claim was mooted, you would agree that this appeal is not mooted?

[00:29:10] Speaker 00:
Absolutely.

[00:29:11] Speaker 03:
OK.

[00:29:12] Speaker 00:
capable of repetition yet evading review, exactly how you found in the original Monk decision in 2017.

[00:29:19] Speaker 00:
The core question that we are here on is, did the Veterans Court make a legal error in construing the commonality requirement under Rule 23?

[00:29:32] Speaker 00:
That's it.

[00:29:34] Speaker 00:
That's the question.

[00:29:36] Speaker 00:
We say they erred.

[00:29:38] Speaker 00:
Why?

[00:29:38] Speaker 00:
Because, Judge Laurie, they said the petitioners have to identify a specific practice or procedure.

[00:29:47] Speaker 00:
We think Judge Allen was correct.

[00:29:50] Speaker 00:
Judge Sholan and the three judges who agreed with her misconstrued our petition.

[00:29:57] Speaker 00:
Our petition said there's systemic delay.

[00:30:00] Speaker 00:
There is inherent systemic delay on a categorical basis for the entire group of 470,000 appellants.

[00:30:09] Speaker 00:
That is unreasonable.

[00:30:10] Speaker 05:
And how do you propose to remedy that through a class action?

[00:30:14] Speaker 05:
You have an automatic, after one year,

[00:30:18] Speaker 05:
It's over.

[00:30:19] Speaker 05:
And aren't you just as likely to find that if a case has not yet been developed during that year, you just get a rejection and you're worse off?

[00:30:30] Speaker 05:
You presented some examples of delay which cannot be justified, but we also know that there are many thousands of cases that are going through the system, more or less reasonably, but they take more than a year.

[00:30:51] Speaker 05:
It looked to me as if had a class been defined that was less ambitious and less prone to just being unworkable, that perhaps there is room.

[00:31:07] Speaker 05:
for some sort of legal, judicial pressure to try and move, at least to move along, the congressional actions.

[00:31:18] Speaker 05:
But what's been requested here goes, I think, from the way the Veterans Court defined it quite specifically, they felt it was unworkable.

[00:31:31] Speaker 00:
Your Honor, you are voicing misgivings about the merits of our claim.

[00:31:36] Speaker 00:
You and perhaps others do not like the one year edict.

[00:31:40] Speaker 00:
We understand that.

[00:31:41] Speaker 00:
We ask for that as advocates.

[00:31:43] Speaker 00:
But we also said to the Veterans Court, if you do not like that one year, you think that's too draconian.

[00:31:49] Speaker 00:
It is in your discretion to either redefine the class or construe a writ remedy.

[00:31:55] Speaker 05:
Isn't it up to you as the petitioner to make these definitions?

[00:32:00] Speaker 05:
You're asking the court to do your work?

[00:32:03] Speaker 00:
No, and we take full responsibility.

[00:32:05] Speaker 00:
It's our job to propose a class that has commonality together.

[00:32:10] Speaker 00:
And we believe we have done that because we have construed this as a period of delay that is unreasonable per se.

[00:32:20] Speaker 00:
If one year is too short,

[00:32:22] Speaker 00:
Surely four years is too long.

[00:32:25] Speaker 00:
And the writ is to tell the secretary... That isn't what you're asking for.

[00:32:29] Speaker 05:
You haven't built into your request any degree of discretion.

[00:32:35] Speaker 00:
Your Honor, respectfully, I disagree.

[00:32:37] Speaker 00:
If you go back to our corrected amended petition,

[00:32:40] Speaker 00:
I don't want us to blur the class definition and our request on the merits.

[00:32:46] Speaker 00:
Our class definition said each member must have waited more than 12 months from the NOD to the board decision.

[00:32:53] Speaker 00:
If you look at the merits of our constitutional due process claim and our unreasonable delay, we actually say 4.9 years is excessive and unreasonably too long under the Constitution and under the statute.

[00:33:07] Speaker 05:
I agree with that, but that isn't what you've asked for.

[00:33:11] Speaker 00:
Your Honor, we asked in our prayer for relief for a remedy to tell the Secretary to issue decisions within one year from the NOD.

[00:33:20] Speaker 00:
You are 100 percent right on that.

[00:33:22] Speaker 00:
That was the scope of our writ request.

[00:33:25] Speaker 00:
However, we are here right now on commonality.

[00:33:30] Speaker 00:
Did we raise a question that can be answered yes or no in one stroke?

[00:33:35] Speaker 00:
You all may say, you've raised a common question.

[00:33:38] Speaker 00:
Is one year unconstitutionally and statutorily too long?

[00:33:44] Speaker 00:
And the answer, counselors, is no, it's not.

[00:33:46] Speaker 00:
You don't like our question.

[00:33:48] Speaker 00:
We fail in unison.

[00:33:50] Speaker 00:
That's what Amgen said.

[00:33:52] Speaker 00:
Is there a question that you rise, you prevail, or fail in unison?

[00:33:57] Speaker 00:
I would respectfully submit that we hit our hurdle at this point.

[00:34:02] Speaker 00:
We have satisfied the commonality requirement by posing that categorical question.

[00:34:09] Speaker 00:
Again, you might not like our merits categorical question, but it can be answered in that single brushstroke you've been referring to.

[00:34:17] Speaker 00:
Articulate that for the Veterans Court and remand.

[00:34:22] Speaker 00:
Then the Veterans Court can take it up and say, we struggled a little bit with that Walmart case.

[00:34:27] Speaker 00:
We thought that there had to be a particular practice or procedure within the overall appellate process.

[00:34:34] Speaker 00:
The federal circuit has told us that that was over reading Walmart for the veterans context.

[00:34:39] Speaker 00:
We now have their guidance.

[00:34:41] Speaker 00:
There has to be a single question, good or bad, that provides a uniform answer.

[00:34:48] Speaker 00:
And in that remand, it will be our job, just as you said, our job

[00:34:52] Speaker 00:
to put it to the CAVC to certify our class.

[00:34:57] Speaker 00:
They may, in the stroke of mercy, give us the opportunity to reformulate.

[00:35:02] Speaker 04:
The question is, how many bites of the apple do you get?

[00:35:06] Speaker 04:
You come up and you didn't do it right, and you want us to send it back and say, try it again.

[00:35:12] Speaker 00:
Your Honor, I totally appreciate the year 2019, and this is the second time we're here on behalf of Mr. Monk.

[00:35:20] Speaker 00:
So this, you could say, is our second bite at the apple.

[00:35:22] Speaker 00:
But respectfully, we are in new uncharted waters, and we are doing this together with the CAVC and together with the Veterans Court.

[00:35:29] Speaker 00:
Here, the CAVC, for the first time ever, announced the standard

[00:35:34] Speaker 00:
that it would utilize.

[00:35:35] Speaker 00:
It said, we will employ Rule 23.

[00:35:38] Speaker 00:
But then, unfortunately, from our perspective, they went adrift.

[00:35:43] Speaker 00:
They said, we're also going to borrow the Walmart standard for veterans cases asserting systemic delay.

[00:35:51] Speaker 00:
And that's where we differ, because they had Title VII with an animus, scienta requirement.

[00:35:56] Speaker 00:
We do not.

[00:35:57] Speaker 00:
under either the due process or under the track factor have to show an intentional, culpable mens rea on behalf of the VA.

[00:36:08] Speaker 05:
So we're different.

[00:36:09] Speaker 05:
For us to decide whether they should rewrite your complaint in order to meet the various requirements that they explored in significant depth.

[00:36:23] Speaker 00:
Your Honor, I would not say rewrite our complaint.

[00:36:25] Speaker 00:
Our complaint, as I articulated in the merit section, talks about the overall period of, at that point, 4.9 years of delay.

[00:36:34] Speaker 05:
Your complaint talks about one year.

[00:36:36] Speaker 00:
And then we say the remedy should be one year.

[00:36:39] Speaker 00:
I'm not saying that you should give us 17 bites at the apple.

[00:36:44] Speaker 00:
What I am saying is that the single issue we are here on now,

[00:36:48] Speaker 00:
is, did the Veterans Court accurately, legally construe the commonality requirement?

[00:36:56] Speaker 00:
And unfortunately, they did not.

[00:36:57] Speaker 00:
That's the legal error that needs to be corrected, because otherwise, every other forthcoming petition is going to be decided under that plurality requirement of identify a particular policy.

[00:37:10] Speaker 00:
Now, interestingly, you saw the Godseed decision be brought to your attention from the Secretary.

[00:37:16] Speaker 00:
The Godseed decision to prove that the plurality in Monk was wrong did not require a specific practice or policy.

[00:37:25] Speaker 00:
It was just the experience of waiting 733 days for certification that was deemed per se unreasonable.

[00:37:34] Speaker 00:
So they chose a subsegment.

[00:37:35] Speaker 00:
And you have each focused on different subsegments of the appellate process.

[00:37:41] Speaker 00:
What we have said is, if you bring your lens up higher,

[00:37:45] Speaker 00:
You can look at the entire five to six year process and say, that five to six year process is unreasonable per se.

[00:37:55] Speaker 05:
OK, I think we have the argument.

[00:37:57] Speaker 05:
We were out of time.

[00:37:59] Speaker 05:
Anything else you want to ask, Mr. Mayor?

[00:38:01] Speaker 05:
No, that's fine.

[00:38:02] Speaker 00:
Very well.

[00:38:02] Speaker 00:
Thank you, Your Honor.

[00:38:03] Speaker 05:
Thank you, Mr. Mayor.

[00:38:03] Speaker 05:
Thank you all.

[00:38:04] Speaker 05:
The case is taken under submission.