[00:00:00] Speaker 04:
Your Honors, and may it please the Court, the DBA's interpretation of clear and unmistakable error to exclude intervening interpretations of statutes and regulations based on their plain meaning cannot be salvaged.

[00:00:11] Speaker 01:
Sir, I'm sorry, could you first address standing?

[00:00:14] Speaker 01:
I see I'm concerned about standing here for your ability to come forward with this challenge, so please discuss that.

[00:00:22] Speaker 04:
Your Honor, Mr. Haseley is a veteran with a current claim before the agency.

[00:00:27] Speaker 04:
that he believes contains an error and that is subject to the CUE rule under the clear holding of DAV against Gover, that established the standard.

[00:00:36] Speaker 01:
What's the current status of that claim?

[00:00:39] Speaker 01:
As I understand it, it's received an initial decision, which has some level of benefit, but some denial of the degree of benefit.

[00:00:50] Speaker 01:
And so is Mr. Hazley now appealing that to the BVA?

[00:00:55] Speaker 04:
It's correct that, well, what we know, Your Honor, is that Mr. Hazley received a benefits decision that he believes is erroneous.

[00:01:02] Speaker 04:
We do not represent Mr. Hazley before the board, and we don't know exactly what he believes is erroneous about his claim.

[00:01:09] Speaker 04:
We haven't looked at the medical records or into the briefing or anything like that.

[00:01:13] Speaker 01:
All we know and... But as far as I know, he has not filed a Q claim because he doesn't even have a finality on the initial claim.

[00:01:23] Speaker 01:
Is that fair to say?

[00:01:24] Speaker 04:
That's correct.

[00:01:25] Speaker 01:
Okay.

[00:01:26] Speaker 01:
So what is the theory of harm as it relates to this particular regulation that bars the use of Q for a changed judicial interpretation when we don't even have a finality on that initial claim?

[00:01:45] Speaker 04:
Your Honor, finality was not a requirement in the standing holding of Gover.

[00:01:49] Speaker 04:
Gober said that standing was established because the veterans were, quote, personally affected by the CUE rules and, quote, have valid concerns about the effect of the rules and their ability to challenge a board decision on the basis of CUE.

[00:02:03] Speaker 01:
Okay, what else?

[00:02:04] Speaker 01:
Well, let's now get back to my question.

[00:02:06] Speaker 01:
Put Gober to the side.

[00:02:08] Speaker 01:
What is the storyline here for Mr. Haseley's theory for why the existence of this regulation is

[00:02:19] Speaker 01:
is harming him and harming his claim for a higher rating.

[00:02:25] Speaker 04:
Mr. Hazley is harmed because if his decision becomes final, a avenue of review that should be open to him per Congress's clear meaning has been foreclosed.

[00:02:36] Speaker 04:
And again, I know you said put it over to the side, but I don't believe it can be put to the side.

[00:02:39] Speaker 01:
I'm sorry, I'm sorry.

[00:02:40] Speaker 01:
What is the changed judicial interpretation theory that Mr. Hazley would then attempt to employ in acute claim should in fact

[00:02:48] Speaker 01:
his initial claim go final and him not being able to get as full of a benefit award as he would like?

[00:02:56] Speaker 04:
Again, Your Honor, we don't represent Mr. Hazley before the board and we don't know the particulars of what he believes is incorrect about his decision.

[00:03:03] Speaker 04:
We haven't looked into the medical records or the briefing.

[00:03:06] Speaker 04:
All we know is that he believes sincerely and as attested to in our evidentiary submissions that there is error in the decision.

[00:03:16] Speaker 04:
The CUE rule forecloses a congressionally established avenue of review for that CUE.

[00:03:23] Speaker 03:
And under the clear holding of the... With all due respect, it depends on the nature of the error.

[00:03:31] Speaker 03:
What I think we're trying to do with you right now, Mr. Schulman, is to assume that the DAV 2000 opinion hasn't been written

[00:03:41] Speaker 03:
and that the standard is as applied in France, the Earth, and Lujan for personal injury.

[00:03:47] Speaker 03:
So that's the basis on which we're asking you whether Mr. Hagelin has made a sufficient showing.

[00:03:55] Speaker 03:
And what has come out is that he has an active claim.

[00:03:59] Speaker 03:
He hasn't yet decided whether he wants to let the claim go final and try to do a cue or a supplemental claim.

[00:04:10] Speaker 03:
removed from filing a queue.

[00:04:12] Speaker 03:
The next question is, does the regulation bar him from filing a queue?

[00:04:18] Speaker 03:
No, it doesn't bar him from filing a queue.

[00:04:20] Speaker 03:
It would only provide that his queue would lose if he were going to rely on some new law.

[00:04:29] Speaker 03:
So there is no new law that he's pointed to, so that may well be if there's no new law, then the queue regulation doesn't impact him at all.

[00:04:39] Speaker 03:
because you're still free to file the queue.

[00:04:44] Speaker 03:
So given those facts, you say, well, how imminent, as opposed to how remote, is the possibility that this queue regulation harms Mr. Haysley?

[00:04:59] Speaker 04:
Your Honor, our claim about queue is not just limited to the situation in which there would be an actually

[00:05:08] Speaker 04:
sort of reversed interpretation that Mr. Hazley could point to.

[00:05:13] Speaker 03:
Indeed, if Mr. Hazley sincerely believes that there's legal error in the original decision, that would be... Right, when you say that, when you say that, and you say, well, this regulation is somehow impeding his right to bring a cue based on failure to apply the law, regardless of a change in law, the regulation doesn't bar that.

[00:05:39] Speaker 04:
Your honor, Mr. Hazley is injured because Congress has foreclosed an avenue of redress to which he is entitled by law.

[00:05:47] Speaker 03:
It's the same- What's the avenue of redress that's foreclosed?

[00:05:51] Speaker 04:
Making a CUE claim that claims the CUE was because the statute's plain meaning was wrongly applied or misinterpreted by the original decision maker.

[00:06:02] Speaker 03:
Right.

[00:06:02] Speaker 03:
But he hasn't yet come up with a injury that he has today.

[00:06:09] Speaker 03:
that shows that there is any immediate possibility of that harm being applied to him.

[00:06:17] Speaker 03:
Joe Chen was asking, in essence, to put Mr. Haseley's position into a time frame, right?

[00:06:28] Speaker 03:
And your arguments that he would be barred from filing a Q claim is not correct.

[00:06:33] Speaker 03:
He could file the Q claim and his claim... Well, Your Honor... Sorry, go ahead.

[00:06:39] Speaker 03:
Yes, go ahead.

[00:06:41] Speaker 04:
Your Honor, it's true that he could file a Q claim knowing that the claim would fail because of the clearly established DAV interpretation, but I still think that's a count of the harm.

[00:06:52] Speaker 03:
His claim would only file if he was trying to rely on a change in law.

[00:06:58] Speaker 03:
Correct.

[00:06:59] Speaker 03:
I mean, there are a lot of Q claims that succeed not because

[00:07:05] Speaker 03:
Somebody thought there was a change in law that benefited him.

[00:07:08] Speaker 03:
It's because the law that got applied by the RO at the time they did it was applied wrong.

[00:07:15] Speaker 04:
Well, Your Honor, again, with all due respect, it seems to me like you're asking me to rebut the government's argument that Gober should essentially be disregarded or abrogated.

[00:07:24] Speaker 03:
Well, yes.

[00:07:24] Speaker 03:
I mean, that's what a hypothetical is for, usually in our court.

[00:07:29] Speaker 03:
And so when I asked the hypothetical, I assumed you would engage on the basis that Gobert didn't exist.

[00:07:37] Speaker 04:
Correct.

[00:07:37] Speaker 03:
That's precisely the question where that's exactly the question that Judge Chen presented to you.

[00:07:42] Speaker 03:
Perhaps you didn't hear it.

[00:07:45] Speaker 03:
Oh, I heard it, Your Honor.

[00:07:46] Speaker 03:
Assuming Gobert doesn't exist, why does your client have the requisite immediacy as opposed to the non-immolacy of the claim?

[00:07:58] Speaker 04:
Well, Your Honor, I believe that in both Lujan and Laidlaw, it was left open that standing an Article III injury could exist based on a sort of reasonable fear that the harm would occur in the future.

[00:08:11] Speaker 04:
And I think Mr. Hazley establishes that fear by essentially pointing to the inevitable way that the agency's regulation would operate

[00:08:20] Speaker 04:
on his future CUE claim, if and is, I think, reasonably likely, he believes, as he's attested, that the claim contains error.

[00:08:30] Speaker 01:
But Mr. Schulman, what confuses me is that you came right out of the box admitting you don't even know the details of what his claim is and what his current theory is on what the possible error is.

[00:08:45] Speaker 01:
So, I mean, we have no idea whether he's going to, in fact, get relief.

[00:08:50] Speaker 01:
in this initial claim.

[00:08:52] Speaker 01:
And then if he doesn't, we have no idea if he's going to file a Q claim because of that.

[00:08:56] Speaker 01:
And then if he does file a Q claim, we have no idea what the basis of his theory of clear and unmistakable error would be because, of course, we don't have a finality yet of the initial decision, which would have the alleged error in it.

[00:09:13] Speaker 01:
And so we don't know if that Q claim would ever be premised on the notion that

[00:09:21] Speaker 01:
The initial VA denial was based on an interpretation that later got reversed by a court.

[00:09:31] Speaker 01:
I mean, do you see the contingent events that are all linked up in a long chain that make this feel somewhat tenuous?

[00:09:43] Speaker 01:
Or do you not see that?

[00:09:46] Speaker 04:
Well, Your Honor, again, I reiterate that we did not represent and do not represent Mr. Hazley before the board.

[00:09:51] Speaker 04:
I would argue that it is not a requirement of standing to show that you are going to win your future claim or even have a... No, I'm trying to figure out whether he even has a theory for how this regulation would ever be applied against him.

[00:10:12] Speaker 04:
Well, for example, in Laidlaw, Your Honor,

[00:10:14] Speaker 04:
This is at 528 US 184.

[00:10:19] Speaker 04:
The court said it saw nothing improbable about the proposition that the pollution a company was engaging in would, quote, cause nearby residents to curtail their recreational use of that waterway and was subject to them to other economic and aesthetic harms.

[00:10:35] Speaker 04:
That's also a conjecture, Your Honor.

[00:10:38] Speaker 04:
You may consider it a more probable conjecture.

[00:10:41] Speaker 04:
I don't necessarily agree.

[00:10:44] Speaker 04:
But I think that should establish, and there's nothing in Lujan or Laidlaw that rules this out, that Mr. Haseley's, you know, probabilistic inability to bring a legal error CUE claim once his decision becomes final is enough to establish injury in fact and thus Article III standing.

[00:11:06] Speaker 01:
Let's make sure I understand.

[00:11:08] Speaker 01:
Right now you're telling me you're, because you're not counseled for Mr. Haseley in his

[00:11:15] Speaker 01:
benefits claim, you don't have any idea what his theory is for what the VA got wrong with their decision.

[00:11:24] Speaker 01:
Is that right?

[00:11:25] Speaker 01:
That's correct.

[00:11:26] Speaker 01:
Okay.

[00:11:26] Speaker 01:
Go ahead and say whatever you want to say next.

[00:11:29] Speaker 01:
Well, I was turning to the merits, Your Honor.

[00:11:35] Speaker 04:
Okay, Chancellor, go ahead.

[00:11:37] Speaker 04:
The agency's regulation defies the statutory text.

[00:11:41] Speaker 04:
which authorizes, quote, review to determine whether clear and unmistakable error exists in a case, exists present tense.

[00:11:50] Speaker 04:
The most natural reading of that present tense clause, clear and unmistakable error exists, is that Q is measured as of the time of review, not the time of the original ratings office determination.

[00:12:01] Speaker 04:
But even if there is ambiguity in Congress's use of exists, the pro veteran canon means

[00:12:08] Speaker 04:
that the ambiguity must be resolved in favor of the veteran.

[00:12:13] Speaker 04:
In DAV against Gover, a panel of this court sustained a similar interpretation of CUE that the agency applies to a Board of Veterans Appeals decision.

[00:12:21] Speaker 04:
Respectfully, that aspect of Gover.

[00:12:24] Speaker 02:
Councilman, answer a background type question for me.

[00:12:28] Speaker 02:
Has the, has a veteran's claim status changed from the time that this petition was followed, the one we're reviewing now?

[00:12:39] Speaker 02:
and today.

[00:12:42] Speaker 04:
Has the veteran's claim status changed?

[00:12:45] Speaker 04:
Yes.

[00:12:48] Speaker 04:
Mr. Hazley received his decision in April of this year, which is after the petition was initially filed.

[00:12:57] Speaker 02:
Okay.

[00:12:58] Speaker 02:
And do we establish standing at the time that the petition was brought or after that?

[00:13:05] Speaker 04:
Well, we argued for standing at the time the petition was brought on the basis of Gover.

[00:13:09] Speaker 04:
The supplemental standing order did not exist at that point, and I believe the order said that any evidentiary submissions would be considered timely filed.

[00:13:21] Speaker 02:
Just as a general principle of law, when is standing determined?

[00:13:25] Speaker 02:
At the time of the filing of a petition, or the cause of action, or at a later point?

[00:13:31] Speaker 04:
I believe it's typically at the time of the filing of the cause of action, but that it can be cured by later evidentiary submission.

[00:13:41] Speaker 02:
All right.

[00:13:43] Speaker 04:
Thank you.

[00:13:43] Speaker 04:
Thank you.

[00:13:45] Speaker 04:
Your Honor, I'll get back to my sort of main fork in the road here, which is that though we believe the clear and unmistakable error plainly encompasses the sort of error where a

[00:13:59] Speaker 04:
the agency misinterprets the plain meaning of a statute or regulation, even if this court finds that the statutory term is ambiguous, it still should be resolved in favor of, in the pro-claimant fashion, as is dictated by the pro-veteran canon.

[00:14:17] Speaker 04:
This court has not definitively settled the relationship between the canon and Chevron-Defron.

[00:14:23] Speaker 04:
But we submit that the best way to treat the pro-veteran canon in this circumstance is as a clear statement.

[00:14:29] Speaker 03:
Pardon me just for a second.

[00:14:30] Speaker 03:
What do you mean the court has not resolved?

[00:14:32] Speaker 03:
What question is open?

[00:14:35] Speaker 04:
Well, the question that's open is both the pro-veteran canon and Chevron are canons of statutory interpretation that are used to resolve ambiguities in statute.

[00:14:47] Speaker 04:
But there is no single clear, dispositive answer from this court on

[00:14:51] Speaker 04:
whether there's a hierarchy between the pro-veteran canon and chevron, and if so, what that hierarchy is.

[00:14:57] Speaker 04:
We think the best answer because it reflects... I don't understand what you're meaning.

[00:15:02] Speaker 03:
We have clear precedent that says panels are bound to apply the pro-veteran standard at step two of chevron.

[00:15:13] Speaker 04:
I don't agree.

[00:15:14] Speaker 04:
I don't agree with that, Your Honor.

[00:15:15] Speaker 03:
You haven't read the cases?

[00:15:22] Speaker 03:
We have a separate opinion from Judge O'Malley and Procopio, which questions that.

[00:15:29] Speaker 04:
Your Honor, there's a series of, I believe we're getting into rebuttal time, but I'll just answer this question as quick, as expeditiously as I can right now.

[00:15:37] Speaker 04:
We have a variety of cases, including both from the Supreme Court and from the circuit, saying that the canons of construction apply at Chevron step one to resolve ambiguity before any question of deference to the agency kicks in.

[00:15:49] Speaker 04:
We also have a line of cases, both from the Supreme Court and from the circuit, Henderson in the Supreme Court, Thursley and Hudgens in the circuit, saying that the pro-veteran canon operates as a clear statement rule.

[00:15:59] Speaker 04:
That is, that Congress must unambiguously exclude the non-pro-veteran reading if the non-pro-veteran reading is to be given effect.

[00:16:08] Speaker 04:
That must mean that the pro-veteran canon operates at step one to resolve ambiguity before we move to Chevron.

[00:16:15] Speaker 04:
I'll reserve the rest of my time for rebuttal, Your Honor.

[00:16:19] Speaker 02:
Okay.

[00:16:21] Speaker 02:
Chancellor Bay.

[00:16:24] Speaker 00:
Thank you, your honor.

[00:16:25] Speaker 00:
May it please the court.

[00:16:26] Speaker 00:
I will dive right into standing as has been the course of the arguments this morning.

[00:16:32] Speaker 00:
And I will start with Mr. Haseley's personal standing, although I do want to address and the LSP standing as well, which I believe council did not.

[00:16:41] Speaker 00:
I understand your honors have questioned Mr. Haseley's standing and I believe that your honors have it exactly right, which is that

[00:16:49] Speaker 00:
Mr. Haseway does not have standing because he does not have a claim that's even remotely subject to Q right now.

[00:16:55] Speaker 00:
Rather, what he has is a decision that he disagrees with from the VA, and that is still within the period of time, the one-year period of time for him to appeal it to the board or seek other avenues of recourse, other avenues of review.

[00:17:12] Speaker 00:
or re-adjudication.

[00:17:13] Speaker 00:
Therefore, there's simply nothing to tie him to any harm associated with the Q Rule.

[00:17:19] Speaker 00:
I think, as we said in our brief, there's layers upon layers of speculation here as to another, which would necessarily even involve a decision involving another hypothetical claimant, not just Mr. Haseley.

[00:17:33] Speaker 00:
Thereby, I don't think that Mr. Haseley has established personal standing.

[00:17:38] Speaker 00:
I'd like to talk also about NVLSP's standing.

[00:17:42] Speaker 00:
NVLSP appears to mostly assert that it has third-party standing, but it cannot establish pursuant to the factors that have been set forth in Kowalski by the Supreme Court that he meets these two third-party standing factors, the close relationship and the hindrance aspect.

[00:18:05] Speaker 00:
And I'd like to focus mostly on the hindrance aspect here.

[00:18:08] Speaker 00:
And the LSP has not demonstrated that if it has close relationships with any veterans, that they are hindered for protecting their own interests.

[00:18:17] Speaker 00:
And I think the main arguments they make, which is that the veteran system overall hinders veterans and that Q might be difficult to understand and it might be hard for them to assert their own rights, I think that's completely been foreclosed by the Kowalski case already.

[00:18:35] Speaker 00:
Kowalski specifically found that indigent defendants who are proceeding pro se are not hindered from bringing their claims just because they do not have counsel.

[00:18:48] Speaker 00:
And therefore, the law firm in the Kowalski case did not have third party standing because they could not demonstrate hindrance just through these veterans or these indigent defendants.

[00:19:00] Speaker 00:
having to proceed, per se.

[00:19:02] Speaker 00:
So, I think we've established that NVLSP does not have third-party standing and Casely does not have third-party standing.

[00:19:10] Speaker 00:
Therefore, there is no cause to continue with the merits of the case.

[00:19:17] Speaker 00:
Having said that, I will, of course, address the merits.

[00:19:20] Speaker 01:
I know we've already... Can you speak a little bit about organizational standing?

[00:19:24] Speaker 01:
I mean, NVLSP is an organization, after all.

[00:19:27] Speaker 00:
They are an organization.

[00:19:29] Speaker 00:
They did not actually originally assert organizational standing.

[00:19:35] Speaker 00:
Rather, in their opening brief, they talked only about third-party standing.

[00:19:38] Speaker 00:
And I believe in the court's order, it only asked about third-party standing, having said that, because I believe that the LSP did address organizational standing in its supplemental brief.

[00:19:53] Speaker 00:
I'll touch on that quickly.

[00:19:54] Speaker 00:
And the answer is that, like we said in our brief, NVLSP also does not have organizational standing.

[00:20:02] Speaker 00:
The Havens has held that, or the Supreme Court's decision in Havens has stated a distinguished injury to an organization's activities from a setback to the organization's abstract social interests.

[00:20:17] Speaker 00:
And here, NVLSP has not demonstrated

[00:20:21] Speaker 00:
anything specific that shows how the Q Rule has inhibited its daily operations.

[00:20:26] Speaker 00:
In fact, it has admitted that it is representing appellants that are seeking review, and it also has not demonstrated that there has been a drain on the organization's resources that is directly tied to the Q Rule.

[00:20:39] Speaker 00:
I think the only specific thing that they point out is

[00:20:44] Speaker 00:
The only specific thing that they point out has to do with, I think, screening cases, but this is insufficient to show a drain on the organization's resources because as I think Mr. Stichman

[00:20:57] Speaker 00:
declared in an attachment to NDLSP supplemental brief.

[00:21:02] Speaker 00:
Regardless of whether the Q-Rule exists or not, every year NDLSP screens thousands of board decisions to see whether it represents a veteran or surviving family member.

[00:21:11] Speaker 00:
Accordingly, this is just part of its daily operations and has not been specifically affected by the Q-Rule.

[00:21:18] Speaker 00:
So unless the court has any other questions on standing, I'll just turn briefly to the merits.

[00:21:23] Speaker 00:
And regarding the merits, I'll try not to retread on what we already discussed in the MBA case, because of course the Q rule is an issue in that case as well.

[00:21:32] Speaker 00:
And everything that applies to the Q rule there would apply here as well.

[00:21:40] Speaker 00:
I'll try to keep my arguments tailored specifically to things that Haseley has raised.

[00:21:44] Speaker 00:
And I think the important points there are that Haseley, unlike MBA, specifically calls for the abrogation

[00:21:52] Speaker 00:
DAV, it doesn't appear to mention Jordan, at least not in its opening brief, but Jordan would also necessarily have to be abrogated if DAV were, because DAV and Jordan have specifically upheld the board regulation that is identical to the regulation that we have here, but of course the court would have to sit on bond in order to overrule DAV, and there's simply no cause for doing so, nor has counsel mentioned any additional cause today for doing so.

[00:22:20] Speaker 00:
So I'll then just turn to Council's focus on the word exists.

[00:22:28] Speaker 00:
I think we did a good job in our brief about establishing why this word does not hold the import that Haysley seems to think that it does.

[00:22:38] Speaker 00:
And I'll just quote that exact phrase from the statute that this word is used in.

[00:22:46] Speaker 00:
And that's subsection C where it states

[00:22:48] Speaker 00:
Review to determine whether clear and unmistakable error exists in a case may be instituted by the secretary on the secretary's own motion or upon request of the claimant.

[00:23:00] Speaker 00:
So the nature of the word exists here is completely divorced from whether the judicial interpretation will be the one existing at the time of the Q assertion or at the time of the initial decision in which Q is being alleged.

[00:23:14] Speaker 00:
Rather, we're just seeing here that there is

[00:23:19] Speaker 00:
that certain parties may initiate review to determine whether a clear and unmistakable error exists.

[00:23:26] Speaker 00:
And that's to say that regardless of whether this alleged error is based on the record evidence, so based on a factual issue or based on the application of law or even based on the interpretation, which of course we don't think constitutes Q, the error would still exist in the present day.

[00:23:42] Speaker 00:
And that's all that exists means here.

[00:23:44] Speaker 00:
It has nothing to do with

[00:23:45] Speaker 00:
whether the changes in interpretation should be applied retroactively to final decisions, which it very much should not be.

[00:23:54] Speaker 00:
Finally, I would submit in response to counsel's argument regarding the veterans' canon, first that Your Honor is correct that the veterans' canon does not come into play during Chevron step one, but I think more importantly, this court doesn't even need to reach the issue of how the veterans' canon is construed with regards to Chevron deference

[00:24:14] Speaker 00:
And that's because, again, here we have binding precedent, which governs this case, and we have clear congressional intent that the board regulation and the AOJ regulation were meant to be considered together, and that there is congressional intent to specifically incorporate 3.105 and the Veterans Court understanding from Russell and Berger, which states that the law should be

[00:24:42] Speaker 00:
assessed as was the law at the time of the initial decision.

[00:24:47] Speaker 00:
So unless the court has any further questions, we respectfully request that this court either dismiss the petition for lack of standing or deny it.

[00:24:56] Speaker 00:
Thank you.

[00:24:56] Speaker 01:
Ms.

[00:24:57] Speaker 01:
Bae, any chance in the past three hours you came to learn what a Department of Veterans Affairs issue is?

[00:25:05] Speaker 00:
I'm afraid I have not.

[00:25:06] Speaker 00:
I was busy listening to the other arguments and preparing a little bit additional for this one.

[00:25:12] Speaker 00:
I'm sorry about that.

[00:25:14] Speaker 02:
Okay.

[00:25:17] Speaker 02:
Okay, Mr. Schulman, you have three minutes of rebuttal.

[00:25:21] Speaker 04:
Thank you, Your Honors.

[00:25:23] Speaker 04:
Three points, or first main point is on NVLSP's organizational standing.

[00:25:28] Speaker 04:
Under the PETA case of the D.C.

[00:25:30] Speaker 04:
Circuit, we believe it's clear that NVLSP has organizational standing to protest this, you know, protest is the wrong word, to seek release against this blocked avenue of redress, just as the environmental and animal rights organization, PETA, had standing in that case because the agency action actually was inaction

[00:25:54] Speaker 04:
that was challenged was a general affront to its mission to protect birds.

[00:26:00] Speaker 04:
I don't believe there's any cognizable difference in the two situations that would add up to a clear decision that NZLSP does not suffer organizational harm and thus have organizational standing.

[00:26:11] Speaker 04:
My second point goes to the government's statements about plain meaning and, as a tertiary issue, Chevron.

[00:26:24] Speaker 04:
If you go back to Russell v. Principi, which the government has always claimed and which the original DAV v. Goeber decision claims was the understanding of CUE that was in effect codified into the first CUE law, it shows that there's simply no reading in which it can be said that the CUE rule, that it's a reasonable interpretation of the CUE rule or that it's an interpretation of the plain meaning of the CUE rule that, quote,

[00:26:54] Speaker 04:
that it ruled out reinterpretations of the statute based on the statute's plain reading.

[00:27:01] Speaker 04:
Russell said.

[00:27:03] Speaker 01:
Mr. Schulman, the 1996 version of 3.105, if I could, this is the pre-congressional codification version.

[00:27:13] Speaker 01:
Let me just read the first line.

[00:27:14] Speaker 01:
It says, the provisions of this section, that is to say Q, the provisions of Q apply except where,

[00:27:22] Speaker 01:
there's a change in law or Department of Veterans Affairs issue or a change in interpretation of law or Department of Veterans Affairs issue.

[00:27:31] Speaker 01:
So that has always been part of this regulation even before Congress adopted Q and as I understand it, adopted this very regulation.

[00:27:42] Speaker 01:
And this regulation says you may not have Q if it's based on a change in interpretation of law.

[00:27:51] Speaker 01:
So what am I missing here in terms of what Congress codified in terms of apparently it codified the preclusion of relying on Q for a change in interpretation of law?

[00:28:08] Speaker 04:
Your Honor, a later interpretation of the law based on the law's plain meaning

[00:28:14] Speaker 04:
is not that sort of a change in interpretation of the law.

[00:28:17] Speaker 04:
And I think this is clear if you look at Russell, and Congress's codification, to whatever extent it existed, has to be understood not just as the pre-statutory regulation.

[00:28:25] Speaker 01:
Okay, so just so I understand, you want me to read the pre-codification regulation to say the provisions of this section shall apply except where there's a change in interpretation of law that not has anything to do with the plain meaning.

[00:28:44] Speaker 04:
Change in interpretation of law, we would say, refers to an agency's delegated right to fill gaps, make interstitial rules, and interpret genuinely ambiguous terms in statutes.

[00:29:02] Speaker 01:
Why doesn't that also apply to judicial interpretation?

[00:29:06] Speaker 04:
Sorry?

[00:29:07] Speaker 01:
I'm just saying it says change in interpretation of law, which now you want me to read as

[00:29:13] Speaker 01:
a change in agency interpretation of law, and I'm just wondering why do I get to carve down the otherwise plain reading of this regulation provision?

[00:29:25] Speaker 04:
Because, Your Honor, when a court later declares, as in Procopio, what a law always meant, it's doing something more than changing the interpretation of the law.

[00:29:34] Speaker 04:
It's declaring what the law always meant.

[00:29:35] Speaker 04:
And again, I'll go to Russell.

[00:29:37] Speaker 04:
which says, which, you know, gives an understanding of CUE that the agency itself later incorporated into its later regulation.

[00:29:45] Speaker 04:
Either the correct facts that they were known at the time were not before the adjudicator or the statutory or regulatory provisions expand at the time were incorrectly applied.

[00:29:55] Speaker 04:
When a court like in the situation of Procopio goes back and says, no, this is what this term always meant, it's plain,

[00:30:01] Speaker 04:
That is an instance of something being incorrectly applied and thus CUE by the understanding of Russell and indeed by the agency's own understanding until it passed this new regulation essentially trying to rule that out.

[00:30:18] Speaker 03:
But that's all subject to the rule of finality in Chico County like the Supreme Court, right?

[00:30:26] Speaker 04:
Sorry, Your Honor, the rule of finality.

[00:30:28] Speaker 03:
It's been recognized, as they used to say in law school from time immemorial, that when a court interprets a law on day one, that interpretation can assume the law was enacted on day one.

[00:30:43] Speaker 03:
And a court interprets the law five years later.

[00:30:46] Speaker 03:
Then it's always been the law that that interpretation five years later

[00:30:52] Speaker 03:
says what the meaning of the law was the day that it was enacted.

[00:30:57] Speaker 03:
That's black litter law.

[00:30:59] Speaker 03:
I mean, you would fail law school if you didn't understand that.

[00:31:03] Speaker 03:
There's another body of law called the law of finality.

[00:31:06] Speaker 03:
And the law of finality says the rule of retroactivity applies in some cases, but not in others.

[00:31:14] Speaker 03:
And those cases say that this interpretation that happened in year five goes back and has retroactive effect

[00:31:22] Speaker 03:
to open cases.

[00:31:25] Speaker 03:
But it does not have an effect to close it.

[00:31:29] Speaker 03:
That's the clear law of, it's the Supreme Court law that's bedrocked.

[00:31:34] Speaker 03:
And so Q, by definition, is a collateral attack on a closed judgment.

[00:31:42] Speaker 03:
Your Honor, the answer is that simply by... So any Q rule that allowed a later interpretation of the law

[00:31:53] Speaker 03:
to govern the decision in the queue would be contrary to bedrock Supreme Court law.

[00:32:01] Speaker 04:
But, Your Honor, the difference is that Congress has specifically passed a CUE statute that allows for the retroactive award of benefits going back to the date they were awarded.

[00:32:12] Speaker 03:
The Congress ordinarily legislates against the backdrop of bedrock Supreme Court law.

[00:32:21] Speaker 04:
But Congress understood that this is the giving out of benefits in an Article 1 administrative agency.

[00:32:28] Speaker 03:
Can you point to anything in the legislative history of the law that's allowing for Q at the BVA or at the Argo that expressly says Chico County does not apply?

[00:32:43] Speaker 04:
I cannot point to anything that expressly says that, but again, I would point to the language in Russell that Congress said it was adopting.

[00:32:50] Speaker 04:
that CUE is when the statutory or regulatory provisions extant at the time were incorrectly applied.

[00:32:58] Speaker 04:
If that means anything, it means that a later declaration that this is what the law always meant.

[00:33:04] Speaker 03:
It only means that if you use the doctrine that says what the law was later always lost and that it applies retroactively.

[00:33:15] Speaker 04:
Yes, but the entire CUE

[00:33:17] Speaker 04:
structure is based on awarding retroactive benefits.

[00:33:20] Speaker 04:
It's an exception to res judicata principles, your honor.

[00:33:25] Speaker 04:
It's governed on different principles than the background principles governing the Article III course.

[00:33:31] Speaker 04:
It's a specific statute passed to award retroactive benefits based on errors in cases that have become final.

[00:33:39] Speaker 03:
Right.

[00:33:39] Speaker 03:
Well, it's light, utter.

[00:33:41] Speaker 03:
It's like real 60B6 and other things that allow for retroactivity.

[00:33:46] Speaker 03:
But it's barred.

[00:33:48] Speaker 03:
It doesn't apply to closed cases.

[00:33:52] Speaker 04:
I'm not sure what you mean that it doesn't apply to closed cases, Your Honor.

[00:33:56] Speaker 04:
BUE authorizes attack on final decisions.

[00:34:02] Speaker 03:
I appreciate that.

[00:34:06] Speaker 04:
I believe I've used the bulk of my time, so I will yield.

[00:34:10] Speaker 04:
Thank you, Your Honor.

[00:34:19] Speaker 02:
Are we here?

[00:34:25] Speaker 02:
I'm sorry.

[00:34:25] Speaker 02:
Were there any further questions?

[00:34:27] Speaker 02:
Okay.

[00:34:27] Speaker 02:
I'm sorry.

[00:34:28] Speaker 02:
I was on mute.

[00:34:29] Speaker 02:
I was on mute and I was talking.

[00:34:31] Speaker 02:
Yes, there's no further questions.

[00:34:33] Speaker 02:
We thank all the parties for their arguments.

[00:34:36] Speaker 02:
The cases are now taken under submission and this court now goes into recess.

[00:34:42] Speaker 04:
The honorable court is adjourned until tomorrow morning at 10 a.m.