[00:00:01] Speaker 02:
May it please the court, Chris Attick appearing for Dennis O'Brien, the appellant.

[00:00:05] Speaker 02:
If you boil the party's arguments in this case down to their essence, what we have are two very different readings of Section 1115.

[00:00:12] Speaker 03:
On page 22 of the Blue Brief, you argue that, quote, questions about the constitutionality of language in the statute create their own ambiguity.

[00:00:24] Speaker 03:
Do you agree that aside from your constitutionality argument, the language of the statute is plain and clear?

[00:00:31] Speaker 02:
I do not agree that it's plain and clear.

[00:00:33] Speaker 02:
There are parts of it that are plain and clear that are parts that are not.

[00:00:36] Speaker 02:
Let me explain what I mean by that.

[00:00:38] Speaker 02:
What the Secretary is saying about 1115 is they are saying that in order to decide for this statute that gives additional compensation for dependents, they're saying bring in the whole definition of 10148 to understand what child means in 1115.

[00:00:53] Speaker 02:
Our argument is saying not to ignore the definition of child.

[00:00:57] Speaker 02:
What we're saying is that in a statute that says additional compensation for veterans with children, we're saying bring in the part of the definition from child in 1014 that is the dependency prong.

[00:01:09] Speaker 02:
That's the interpretation that's consistent with what this court said in Sukuk.

[00:01:13] Speaker 02:
In Sukuk... Sir, you're saying that the definition of child shouldn't apply in 1115?

[00:01:21] Speaker 02:
Not completely.

[00:01:22] Speaker 02:
What we're saying is that there's a very specific reason that Congress used the word dependent in 1115.

[00:01:27] Speaker 02:
And we can look to understand why to the Sukuk decision.

[00:01:30] Speaker 02:
And in that decision, this court looked at the word dependent parent.

[00:01:35] Speaker 02:
And it said Congress brought in the word dependent to limit the definition of parent in 1015.

[00:01:41] Speaker 02:
Same thing is happening here.

[00:01:42] Speaker 02:
Congress explicitly used the word dependent in 1115 to give us some understanding of the word child in 1014A, and specifically to limit it.

[00:01:52] Speaker 02:
That's consistent with what the court is saying in Sukuk, because in Sukuk, what the court was saying is that the adult, the dependency of the child is implicit.

[00:02:02] Speaker 02:
So if you limit the term child from the definitional section, how are you expanding it?

[00:02:10] Speaker 02:
We're not asking the court to expand.

[00:02:13] Speaker 02:
And to the extent that my brief suggests that, I apologize for any lack of clarity that my structure brought there.

[00:02:18] Speaker 02:
The bottom line result is you're expanding it.

[00:02:21] Speaker 02:
We're asking, from our perspective, your honor, respectfully, we're asking the court to limit the definition of child to the specific dependency prong, to say that the family relationship prong, that associated group of family relationships are irrelevant.

[00:02:35] Speaker 03:
Are you saying that any child under the statute that is not dependent is not a child under the statute?

[00:02:42] Speaker 02:
Any child that is not dependent on the statute?

[00:02:45] Speaker 02:
No, what we're saying is that any child that meets those that is not married

[00:02:49] Speaker 02:
that is under the age of 18, incapable of support by the age of 18, or between 18 and 23 and in college, is implicitly, as this court found in Sukuk, a dependent child.

[00:02:59] Speaker 02:
And because that's implicit in the definition of child, Congress had to mean something when they added explicitly into 1115.

[00:03:06] Speaker 02:
If it's implicit in child, they must have meant something by explicitly adding it.

[00:03:11] Speaker 02:
Either that or they're adding the word.

[00:03:12] Speaker 01:
I don't understand what you're talking about.

[00:03:14] Speaker 01:
I mean, you look at, are you saying one oh one four is not applicable or somehow dependent alters the definition of one oh one four.

[00:03:24] Speaker 02:
No, we're saying that there's two prongs to the definition of child in 101-4.

[00:03:27] Speaker 01:
Yeah, the problem is the child here doesn't come within 101-4 because he is not a legitimate child of the veteran, a legally adopted child, or a stepchild who's a member of the veteran's household.

[00:03:45] Speaker 01:
That's the three criteria, right?

[00:03:47] Speaker 02:
If this court uses that family relationship grouping to define child 1115 it would require this court to read out the word dependent that appears explicitly in what I said to you.

[00:04:06] Speaker 03:
I was trying to say was you want us to read out the word child.

[00:04:09] Speaker 02:
I don't, Your Honor.

[00:04:10] Speaker 02:
I want you to say that the word dependent in 1115 modifies the word child in the same way that dependent modified parent in 5121A in Sukuk.

[00:04:18] Speaker 02:
Otherwise, there's no point for the Congress to have put in dependent into 1115 because it's implied in children.

[00:04:25] Speaker 02:
It's a limitation.

[00:04:27] Speaker 02:
Dependent is a limitation, yes, on children.

[00:04:29] Speaker 02:
And we're saying when you're deciding for the purposes of 1115 what a child is, Congress's use of the word dependent is saying we're limiting you

[00:04:38] Speaker 02:
to the dependency prong of the definition of child.

[00:04:42] Speaker 02:
We don't get into the family relationship.

[00:04:44] Speaker 02:
It's irrelevant.

[00:04:45] Speaker 02:
And it was irrelevant to this court in Sukuk.

[00:04:47] Speaker 02:
Sukuk, this court came in.

[00:04:49] Speaker 03:
OK, so Fred down the street is a child.

[00:04:59] Speaker 03:
Not the veterans.

[00:05:01] Speaker 03:
No relation to the veteran, but a child.

[00:05:05] Speaker 03:
If they fall into the definition of dependent,

[00:05:08] Speaker 02:
He meets, if Fred down the street is under the age of 18 and unmarried, he would meet the definition of child in 101 for A, the child dependency prong.

[00:05:17] Speaker 02:
He would not, however, be a dependent.

[00:05:19] Speaker 01:
There is a dependency prong in 101 describing child.

[00:05:27] Speaker 01:
It's the definition of child.

[00:05:28] Speaker 01:
That's what we start with.

[00:05:30] Speaker 01:
And then we go to,

[00:05:32] Speaker 01:
And then we go to 1115 and maybe yes, every child that meets the definition of 101 for

[00:05:40] Speaker 01:
is going to be a dependent because that's just the nature of children.

[00:05:45] Speaker 01:
Although I could see circumstances where it's not, where there may be a divorce or the like, and the child is in the custody of a different parent is not dependent on the veteran.

[00:05:54] Speaker 01:
I mean, in those cases, you know, they might be a child, but they're still not dependent.

[00:06:00] Speaker 01:
I just don't understand how you're saying you can meet the definition of 1014 without meeting the definition of 1014.

[00:06:10] Speaker 02:
We're not saying it like that, respectfully, Your Honor.

[00:06:12] Speaker 02:
What we're saying is that you can't.

[00:06:14] Speaker 02:
There's two prongs.

[00:06:16] Speaker 02:
The initial premise of our argument is that there's two prongs to child in 1014A.

[00:06:20] Speaker 02:
And we know the first prong comes in Sukuk.

[00:06:25] Speaker 02:
Sukuk, this court said.

[00:06:25] Speaker 01:
Can you just talk about the statute?

[00:06:27] Speaker 02:
Don't talk about that case.

[00:06:28] Speaker 02:
Sure.

[00:06:28] Speaker 02:
And the first prong of the 1014A says unmarried.

[00:06:33] Speaker 02:
And then Romanets one through three under the age of 18, incapable of support by the age of 18 and 18 to 23 in college.

[00:06:41] Speaker 01:
Sure.

[00:06:41] Speaker 02:
That's the first prong.

[00:06:42] Speaker 01:
The child here meets that.

[00:06:44] Speaker 02:
Meets that prong.

[00:06:45] Speaker 01:
And the second prong.

[00:06:46] Speaker 02:
Second prong is family relationships, a close grouping of family relationships.

[00:06:49] Speaker 02:
And he doesn't meet that.

[00:06:50] Speaker 02:
We're saying that that prong does not even come into 1115.

[00:06:54] Speaker 02:
And we're saying that by looking at 1115.

[00:06:57] Speaker 03:
But Fred down the street goes to college.

[00:07:01] Speaker 02:
If Fred down the street,

[00:07:02] Speaker 02:
It doesn't have any relation to the veteran.

[00:07:04] Speaker 02:
If he's not a dependent child, then the veteran can't get compensation.

[00:07:10] Speaker 01:
What's your basis for reading that second prom out?

[00:07:12] Speaker 01:
We're supposed to read all parts of the statute.

[00:07:16] Speaker 01:
Where does it say in 1115 that you only look to the first part of the definition for child, not the second part in 1115?

[00:07:24] Speaker 02:
If you read both parts of 101-4a into 11-15, you're ignoring the fact that Congress specifically used the word dependent in 11-15.

[00:07:34] Speaker 02:
That has to mean something, because it's implicit in the definition of child.

[00:07:38] Speaker 01:
Yes, but they're using the word dependent above in the general section that describes a whole bunch of categories.

[00:07:45] Speaker 01:
And some of those people are not inherently dependent, like spouses or parents.

[00:07:51] Speaker 01:
And so it makes sense that they're using the word dependent to modify this entire class.

[00:07:57] Speaker 01:
It may be that every child that meets the definition of 1 0 1 4 is dependent, but that doesn't mean we should read out part of 1 0 1 4, does it?

[00:08:06] Speaker 01:
I mean, look, I am sympathetic to you.

[00:08:07] Speaker 01:
I think that it makes no sense to have a policy that that limits

[00:08:14] Speaker 01:
compensation in this matter to would give it for adopted grandchildren and not dependent on adopted grandchildren.

[00:08:22] Speaker 01:
That makes no sense whatsoever, particularly given the state of the country where grandchildren are caring for their grandkids all over the place.

[00:08:29] Speaker 01:
But this is Congress's problem, isn't it?

[00:08:31] Speaker 02:
I don't think it is.

[00:08:33] Speaker 01:
I would let me point out one thing, your honor, in terms of I mean, it's just a bizarre way to do statutory construction to think that I mean, isn't there a canon that basically says when you're reading statutes together, you should presume that Congress intended for them to work together and that they didn't intend to implicitly repeal part of one.

[00:08:51] Speaker 01:
I think that is exactly the canon we're relying on, and we can look to the... But your argument is against that canon, because your argument is, by use of the word dependent, it directed the VA to ignore the second part of 101-4.

[00:09:06] Speaker 01:
And that just is not proper statutory construction, is it?

[00:09:10] Speaker 02:
In 1115, Your Honor.

[00:09:11] Speaker 02:
We talk about additional compensation to dependents.

[00:09:13] Speaker 02:
And then we step down and it says to parents dependent on the veteran for support.

[00:09:19] Speaker 02:
That suggests Congress has used that word twice.

[00:09:21] Speaker 02:
So either they used it one time redundantly or superfluously or they meant something specific.

[00:09:26] Speaker 02:
And both parent and child, what they both have in common in this regard,

[00:09:29] Speaker 02:
is both of them, in their definitions in 1014A, both have a family relationship component.

[00:09:36] Speaker 02:
Parent has it, child has it, and the extra use of dependent.

[00:09:40] Speaker 02:
Now, the court doesn't have to agree with me on this.

[00:09:42] Speaker 04:
Can I get a word in just before the argument's over?

[00:09:46] Speaker 04:
How does a grandchild get into this statute?

[00:09:50] Speaker 04:
Statute's talking about, I'm talking about 1115, as children.

[00:09:57] Speaker 04:
But as it doesn't say have a grandchild, it says children.

[00:10:01] Speaker 04:
And there's a difference between children and grandchildren.

[00:10:04] Speaker 04:
So I didn't understand in the beginning how a grandchild got into this mix at all.

[00:10:09] Speaker 02:
Because from our perspective, Your Honor, 1115 talks about a dependent child.

[00:10:15] Speaker 04:
Right, but you're talking about adding a grandchild, a great grandchild, a cousin, a nephew, a number of people.

[00:10:23] Speaker 02:
If they're dependent upon the veteran for support, yes, we are.

[00:10:26] Speaker 02:
And that would include Fred down the street.

[00:10:27] Speaker 02:
If he's dependent on the veteran for support, he meets that definition, the prong of 1014A that goes to dependency.

[00:10:35] Speaker 04:
Now the court doesn't have to- We know in this statute, Congress drew some limits.

[00:10:38] Speaker 04:
For example, not all stepchildren qualify.

[00:10:43] Speaker 02:
Right?

[00:10:44] Speaker 02:
And there's a listing of family relationships.

[00:10:47] Speaker 04:
So they were excluding a class of stepchildren who are not members of the household.

[00:10:53] Speaker 04:
And that's ultimately the problem with using... So they're excluding grandchildren, and they're excluding lots of the people down the street.

[00:11:00] Speaker 02:
That's the problem with using the family relationship wrong.

[00:11:05] Speaker 04:
To me, your real argument, which you haven't presented in this case, is an as-applied equal protection challenge to this statute.

[00:11:14] Speaker 02:
I think we do raise that argument in our briefs, Ron.

[00:11:16] Speaker 02:
I think we argue that by using the... You can make that argument below.

[00:11:20] Speaker 02:
We asked the court, we made that argument.

[00:11:22] Speaker 04:
We made a vague argument about family relations.

[00:11:26] Speaker 02:
And we asked the court to avoid getting into that by applying the constitutional avoidance doctrine.

[00:11:30] Speaker 02:
Asking them to avoid constitution is not waiving the argument.

[00:11:33] Speaker 04:
I didn't say you pressed the argument.

[00:11:35] Speaker 02:
Even if we didn't press the argument, and I think we did, we asked the court to avoid it.

[00:11:39] Speaker 02:
But even if we didn't press it and the court considers that to be some sort of waiver,

[00:11:43] Speaker 02:
the actual equal protection violation appears in the Veterans Court's decision itself because what it does is it looks at that family relationship and it divides it down the middle.

[00:11:52] Speaker 04:
And that's why... Judge Hughes' point is that what is the rational distinction between an adoptive parent and the other parent?

[00:12:01] Speaker 02:
There is no rational distinction between it because what you, myself, every person in this room has a fundamental right to define the makeup of our family.

[00:12:10] Speaker 02:
and defining the fundamental makeup of our family says, I can say I can raise my minor brother as my dependent.

[00:12:16] Speaker 02:
I'm a disabled veteran.

[00:12:17] Speaker 04:
I can bring my minor brother.

[00:12:18] Speaker 04:
The statute didn't stop the proceedings here in the state court.

[00:12:23] Speaker 04:
to take responsibility for the child?

[00:12:25] Speaker 02:
No, it didn't.

[00:12:25] Speaker 02:
But what it's doing is it's limiting the veterans' ability to get federal additional dependency compensation.

[00:12:29] Speaker 02:
It's saying some family relationships are good, other family relationships are bad.

[00:12:34] Speaker 02:
Now, Congress draws a line.

[00:12:35] Speaker 02:
They can draw a line through the fundamental right if it's a con- That's true here.

[00:12:40] Speaker 01:
All compensation systems where you have to meet certain criteria, and even this one,

[00:12:45] Speaker 01:
You know, it seems like your argument could also go further than that.

[00:12:51] Speaker 01:
And basically, anybody that lives with these people and is supported by them should get dependency compensation.

[00:12:58] Speaker 01:
But why isn't, and this is a not, this is a, I don't understand why you think this is some kind of strict scrutiny thing.

[00:13:05] Speaker 01:
This is a rational basis test, isn't it?

[00:13:07] Speaker 01:
And isn't it rational for

[00:13:08] Speaker 01:
Congress to say, even if as a policy matter, I don't think it makes any sense, isn't it rational for them to say, we are going to limit it to children, dependent parents, and people who have a legal relationship in terms of an adoption rather than just anybody living in the household and dependent upon them for income?

[00:13:29] Speaker 02:
If I have a fundamental right to associate with the family members of my choosing, if Congress is going to draw a line and say that my choice is bad and your choice is good,

[00:13:37] Speaker 02:
then it has to have a compelling interest, and the line must be the least restrictive means to achieve that compelling government interest.

[00:13:43] Speaker 02:
I see that I'm in my rebuttal time, and unless there are further questions, I'd like to reserve the balance of my time.

[00:13:48] Speaker 02:
You can do that.

[00:14:05] Speaker 03:
Let us hear from the government.

[00:14:06] Speaker 01:
Can you address the constitutional issue?

[00:14:08] Speaker 01:
I mean, there is a lot of cases that suggest that you can't, in some circumstances, condition benefits on family relationships.

[00:14:17] Speaker 01:
And I'm a little confused as to how those apply in this context.

[00:14:22] Speaker 00:
Well, Your Honor, the constitutional issue is not being correctly understood by the appellant.

[00:14:29] Speaker 00:
There is a distinction in these cases between the Supreme Court has upheld numerous benefits programs, Welfare Abroad Programs, Social Security Act.

[00:14:40] Speaker 00:
The Supreme Court has upheld these programs over and over again that draw lines between different

[00:14:45] Speaker 00:
family classifications, the amount of children, divorced women, undivorced women.

[00:14:50] Speaker 00:
The Supreme Court has always upheld those on a rational basis ground, saying it's Congress's position to draw lines in between different categories of needy people, even if those lines do result in some inequality or are not specifically being precise enough.

[00:15:07] Speaker 00:
There is also different cases that are being cited here that are very factually distinct, such as cases

[00:15:14] Speaker 00:
that struck Supreme Court cases that struck down laws changing who can enter into these relationships in the first place.

[00:15:21] Speaker 00:
For example, in Zablocki v. Redhale, that was a statute, a state law that prevented someone from getting married.

[00:15:30] Speaker 00:
if they had unpaid child support payments.

[00:15:31] Speaker 00:
There's also one involving pregnant women who were being forced to take leave and thus were being penalized for having children.

[00:15:40] Speaker 00:
So in another case, more, it was preventing people from living together.

[00:15:43] Speaker 00:
A woman was actually put in jail for living with her grandsons.

[00:15:46] Speaker 00:
And there was a very large factual distinction there.

[00:15:51] Speaker 00:
As Your Honors noted, DB and Mr. O'Brien were not being prevented from being guardian and warding each other.

[00:15:57] Speaker 00:
The VA has no interest in Illinois adoption law.

[00:16:02] Speaker 00:
He has entered into and maintained that relationship.

[00:16:05] Speaker 00:
What is going on here is that he does not qualify for certain additional supplementary benefits because the way the definition of child has been.

[00:16:13] Speaker 00:
created.

[00:16:14] Speaker 00:
And that is not unconstitutional.

[00:16:16] Speaker 00:
It is a rational basis.

[00:16:18] Speaker 00:
There's certainly a rational basis for limiting the amount of dependence from anyone who might be living with the veteran and be financially dependent to certain members of the immediate family.

[00:16:26] Speaker 03:
Nor within the state law bounds does the VA have any interest in saying that you can't adopt anyone you want?

[00:16:34] Speaker 00:
No, Your Honor, Mr. O'Brien had the full choice under state laws to how best to care for DB.

[00:16:41] Speaker 00:
Where this has come in is that the option that was chosen of guardianship does not meet this definition of child in Title 38.

[00:16:48] Speaker 00:
That is not forcing him to do anything.

[00:16:52] Speaker 01:
But at some point,

[00:16:53] Speaker 01:
A statutory classification on limitation on which types of children can get benefits would be a constitutional problem, wouldn't it?

[00:17:03] Speaker 01:
I mean, if you had a statute that said, you know, you can get benefits if you adopt a white kid, but not a black kid, there would be a problem.

[00:17:11] Speaker 00:
Yes, that's correct, Your Honor.

[00:17:12] Speaker 00:
If the statute was making a suspect classification, which obviously it's not, that would be unconstitutional.

[00:17:20] Speaker 00:
We don't dispute that if it said only white adopted children get benefits, that that would be a problem, but obviously that's a different...

[00:17:27] Speaker 00:
factual situation.

[00:17:28] Speaker 00:
There's no fundamental right to obtain benefits regardless of the classification that Congress had drawn.

[00:17:34] Speaker 00:
So to the extent that he's arguing, it's impinging on his right to create his family however he wants.

[00:17:40] Speaker 00:
That's not fatually what's happening based on these Supreme Court cases I discussed.

[00:17:46] Speaker 04:
There is a distinction.

[00:17:48] Speaker 04:
But if you ask the question, why did the Congress decide to have a benefit for an adopted child?

[00:17:56] Speaker 04:
run through your mind, you say, well, the person that adopts the child has the same responsibilities as if it were the natural child.

[00:18:03] Speaker 04:
And you're going to give the natural child the benefit.

[00:18:07] Speaker 04:
So then you say, OK, that's the rationale for the adopted child.

[00:18:11] Speaker 04:
And you say, well, what's the rationale for excluding a legal guardian if the legal guardian has exactly the same responsibilities towards the child that he would if it were adopted?

[00:18:24] Speaker 00:
The question is not whether in each specific factual circumstance for each person we could find a rational basis for that.

[00:18:32] Speaker 00:
It's whether the classification as a whole has any reason to, any reasonable grounds to be found to support it.

[00:18:40] Speaker 00:
There has to be a rational basis for the classification, but the Supreme Court has never required Congress to specifically explain in each factual circumstance why it would apply.

[00:18:50] Speaker 01:
Sure, but you've still got to answer the question of why this is not just a specific factual answer.

[00:18:55] Speaker 01:
What's the rational basis for distinguishing between adoptive parents on the one hand and legal guardians on the other?

[00:19:03] Speaker 00:
The rational basis is that to narrow the basis in order to preserve the government resources, the public fist, that these immediate family relationships, the parent-child relationship, are different than a relationship with a child who has other relations that are not directly biologically or legally a parent-child relationship.

[00:19:25] Speaker 03:
And state law governing guardianship may differ in its requirements from state law involving parenting.

[00:19:33] Speaker 00:
That is true, correct, that... Yes, it is.

[00:19:36] Speaker 00:
There's a distinction between children who presumably have other relations to take care of them, even though in this factual circumstance... I mean, children of other parents to take care of them, even in this factual circumstance, that's not the case, versus a legal parent-child relationship, which... Is it not true that under state law, a bank may be a legal guardian for certain purposes?

[00:19:56] Speaker 00:
I don't have any specific knowledge of that, but I don't doubt that there could be also fostering situations, orphanages, different situations where it's not a direct parent-child care aspect.

[00:20:10] Speaker 04:
So if I've addressed the... Do you view Mr. O'Brien to have preserved a as-applied equal protection challenge to the definition of child?

[00:20:23] Speaker 00:
No, we don't, Your Honor, and I was going to bring that up, although we directly went into the direct constitutional issue.

[00:20:29] Speaker 00:
But below with the Veterans Court, he raised certain objections based on constitutional grounds, but then was using them for a statutory interpretation purpose to argue that the Veterans Court should choose his interpretation of the defendant.

[00:20:43] Speaker 00:
The Veterans Court never ruled on the actual constitutionality because he didn't ask for it.

[00:20:50] Speaker 04:
Your brief to the Veterans Court actually fleshed out

[00:20:53] Speaker 04:
the as-applied equal protection argument.

[00:20:57] Speaker 00:
The secretary did, below before the veterans court, did address those arguments, obviously not wanting to leave this issue unaddressed, but he was raising them for... Isn't that sufficient to keep the argument in the case?

[00:21:09] Speaker 00:
Our position is that the argument was being raised for a statutory interpretation purpose, and the Veterans Court ruled on those statutory interpretation grounds, finding it unambiguous.

[00:21:19] Speaker 01:
I'm sorry, but I mean, he was arguing that to say, you've got to interpret it this way, otherwise the statute's unconstitutional.

[00:21:24] Speaker 00:
I believe he declined to ask for it to be declared unconstitutional specifically, and the Veterans Court decided not to go into that.

[00:21:34] Speaker 01:
But it's implicitly raised.

[00:21:34] Speaker 01:
I mean, is this a waiver issue, or is this a jurisdictional issue?

[00:21:40] Speaker 01:
it's at base it's a statutory interpretation issue because that's not what i asked i'm sorry i'm asking about whether we can hear it or not and is it the government's position that we shouldn't hear it because they waived it by not sufficiently raising it below even though you clearly got the opportunity to respond or do you think it's a jurisdictional issue in the you know unique jurisdictional statute we have here that we can only

[00:22:07] Speaker 01:
you know, have jurisdiction over questions decided by the Veterans Court?

[00:22:12] Speaker 00:
It's our position that we're not challenging the jurisdiction of this court to address the Veterans Court's statutory interpretation decision.

[00:22:20] Speaker 00:
That's not answering my question.

[00:22:22] Speaker 00:
We do believe the constitutional issue has been waged.

[00:22:24] Speaker 01:
Do you have jurisdiction to consider the constitutional question?

[00:22:29] Speaker 01:
Because a waiver is not mandatory.

[00:22:32] Speaker 01:
I mean, we can disregard a waiver if we want.

[00:22:35] Speaker 01:
Do we have jurisdiction, or is it a waiver issue?

[00:22:39] Speaker 00:
Our position is that Mr. O'Brien has waived the constitutional question.

[00:22:43] Speaker 00:
Jurisdictionally, the Veterans Court can, I mean, jurisdictionally, this court can address constitutional issues, but if the argument hasn't been raised below... Can we address the constitutional issue that didn't form the basis of the decision by the Veterans Court?

[00:22:56] Speaker 04:
I think that's the question being asked by my colleague.

[00:23:01] Speaker 00:
I'm sorry, do you repeat that?

[00:23:02] Speaker 04:
On the jurisdictional side, I mean, is our jurisdiction restricted by the issues that are actually decided by the Veterans Court?

[00:23:12] Speaker 00:
Under this court's jurisdictional statute, I

[00:23:16] Speaker 00:
don't believe that the court would have jurisdiction to insert new issues that were not the basis of the Veterans Court decision.

[00:23:24] Speaker 04:
If that's, however, the facial reading of the Veterans Court decision is, by the majority at least, is that a constitutional argument wasn't presented to us.

[00:23:38] Speaker 00:
That's correct.

[00:23:39] Speaker 04:
What we were presented with was a hypothetical

[00:23:42] Speaker 04:
constitutional argument that was being presented to us to say you should interpret the statute in a particular way to avoid the constitutional approach.

[00:23:51] Speaker 03:
It was a straw person, in other words.

[00:23:54] Speaker 00:
Yes.

[00:23:54] Speaker 00:
So with that in mind, that's our position why Mr. O'Brien has waived it.

[00:24:00] Speaker 00:
Now, if the Veterans Court had ruled and said this is unconstitutional, we'd think that this court would have jurisdiction to address that per its statute.

[00:24:10] Speaker 00:
If the question hasn't been raised, then there's no reason to to set to rule on that.

[00:24:15] Speaker 00:
That's the point purpose of waiver of the waiver cases to avoid having to address these issues that aren't coming from the vet that aren't part of the decisions of the veterans court.

[00:24:26] Speaker 00:
So to conclude, to address what Mr. O'Brien's counsel was indicating, there is no dependency prong in section 101.

[00:24:36] Speaker 00:
It's all one definition.

[00:24:38] Speaker 00:
There isn't any sort of distinction between the different elements of the definition that suggests some of them can be used in different circumstances and not others.

[00:24:47] Speaker 00:
And to follow that would really disturb the Tert's holding in Sutich.

[00:24:52] Speaker 00:
because Suchich held the definition applies unambiguously to portions of Title 38 with exceptions that aren't relevant in either case.

[00:25:00] Speaker 00:
There's nothing in Suchich that counsels reading out parts of the definition of 101.

[00:25:05] Speaker 00:
In fact, that's the exact opposite of the court's holding.

[00:25:09] Speaker 00:
So therefore, DB does not qualify as a dependent child.

[00:25:12] Speaker 00:
The meaning of child is under 1115.

[00:25:14] Speaker 00:
The meaning is limited to what's in section 101.

[00:25:17] Speaker 00:
And this court should affirm if there's no further questions.

[00:25:19] Speaker 00:
I'll conclude.

[00:25:21] Speaker 00:
Thank you.

[00:25:28] Speaker 02:
At appendix 73, in their response brief at the court below, the government said, appellant presents a constitutional challenge, and this is a direct quote, on section 115 on an as-applied basis, asserting he is excluded from receiving benefits that he is otherwise eligible for because he chooses to structure his family in a non-nuclear way.

[00:25:45] Speaker 02:
The government understood below that we were making an equal protection argument on an as-applied basis.

[00:25:50] Speaker 02:
To come in here now and say that we've waived it is not logically consistent.

[00:25:54] Speaker 03:
What's the next paragraph today?

[00:25:56] Speaker 03:
has failed to articulate the relevant standard review by failing to identify which constitutional amendment is violated.

[00:26:04] Speaker 02:
And to the extent that we did that, Your Honor, then the Veterans Court's decision which addresses and makes an issue on a constitutional basis

[00:26:12] Speaker 02:
The constitutional error in the Veterans Court decision is what this Court can review.

[00:26:16] Speaker 02:
And so we would ask the Court to consider not applying the waiver doctrine and considering that argument.

[00:26:21] Speaker 02:
I don't think that the Court needs to get to it, because even if this Court finds that both prongs come in, and even if this Court applies rational basis, there's no rational basis for the government to say, Congress has given us a pool of money for additional dependents, and we're going to conserve those resources by not giving it to a veteran that has additional dependents.

[00:26:39] Speaker 02:
There's no rational basis in that whatsoever.

[00:26:41] Speaker 02:
We ask that the court find that Mr. O'Brien's minor child is a dependent for the purpose of additional dependency compensation.