[00:00:00] Speaker 00:
The Honorable Court is now in session.

[00:00:04] Speaker 00:
The next case for argument is 191095 Merritt v. Wilkie.

[00:00:10] Speaker 00:
Mr. Carpenter, whenever you're ready.

[00:00:13] Speaker 03:
Thank you very much, Your Honor.

[00:00:14] Speaker 03:
May it please the Court, Kenneth Carpenter, appearing on behalf of Christina Merritt, the substitute appellant for her deceased husband, Mr. Merritt.

[00:00:23] Speaker 03:
Mr. Merritt's death, Your Honor, does not affect

[00:00:26] Speaker 03:
in any way or deprive this court of Article 3 jurisdiction as the Secretary has suggested.

[00:00:33] Speaker 05:
Mr. Carpenter, has your client filed a claim for accrued benefits with the VA?

[00:00:41] Speaker 03:
No, she has not, Your Honor.

[00:00:43] Speaker 03:
She has not because there is nothing pending before the VA for her to substitute in.

[00:00:51] Speaker 03:
The proceedings are entirely before the court

[00:00:54] Speaker 03:
if this court affirms there are no further proceedings to proceed with before the court.

[00:01:01] Speaker 03:
The only way that she is able to proceed is if this appeal is sustained and the case is remanded back to the Veterans Court for enforcement of its order.

[00:01:13] Speaker 05:
But I'm not following.

[00:01:15] Speaker 05:
Doesn't the fact that she's failed to file the accrued benefits claim as required by the VA regulations mean that this case is moot?

[00:01:24] Speaker 05:
So how can she recover if she didn't file a claim within the one year period?

[00:01:31] Speaker 03:
Because the Veterans Court in the Breedlove case expressly interpreted 5121A to apply only to the agency.

[00:01:42] Speaker 03:
Mr. Merritt had nothing pending before the agency at his death.

[00:01:48] Speaker 03:
He only had the appeal pending before this court and therefore

[00:01:53] Speaker 03:
the appeal that was pending is subject only to the rules of the Veterans Court and this court as to the question of substitution.

[00:02:01] Speaker 03:
5121A does not require a substitution in a proceeding that is not before the agency.

[00:02:13] Speaker 03:
She would have no claim.

[00:02:14] Speaker 01:
Mr. Premier, Judge Clevinger, following up on what Judge Dyke said, doesn't your client

[00:02:21] Speaker 01:
have to have filed a claim within one year of the death of Mr. Barrett in order for her to be able to protect and accrue benefits claim.

[00:02:33] Speaker 03:
Under the language of?

[00:02:35] Speaker 01:
That's a yes or no question.

[00:02:37] Speaker 01:
Yes, Your Honor.

[00:02:38] Speaker 03:
Yes, Your Honor.

[00:02:39] Speaker 03:
However.

[00:02:40] Speaker 01:
And so I guess what Mike was asking is, since one year has passed, how can there be a live controversy?

[00:02:48] Speaker 03:
Because there is no claim

[00:02:51] Speaker 03:
pending before the agency.

[00:02:53] Speaker 01:
The only way that... But the question is not whether Mr. Merritt has a claim pending in front of him.

[00:03:01] Speaker 01:
She wants to file a claim on her own behalf or... No, Your Honor.

[00:03:07] Speaker 01:
She does not.

[00:03:09] Speaker 03:
No, Your Honor.

[00:03:10] Speaker 03:
There is a difference at law between accrued benefits under 5121 small a versus a substitution

[00:03:19] Speaker 03:
in which Congress has allowed a qualified survivor to step into the shoes of a veteran or claimant based upon their standing as a qualified dependent.

[00:03:34] Speaker 05:
The... So, Mr. Carpenter, I mean, you look at the Reeves case in footnote five and it says claims for accrued benefits must be filed within one year of the veteran's death.

[00:03:46] Speaker 05:
given that more than one year has passed since Reeves' death, Ms.

[00:03:50] Speaker 05:
Reeves might forfeit all right to relief if it were determined that her motion to substitute did not qualify as an informal accrued benefits claim.

[00:03:59] Speaker 05:
And now with the amendment to the regulations, it's difficult for me to see how her notice satisfies the new, more rigorous requirement of the regulations.

[00:04:14] Speaker 05:
So if that's the case, then she's out of luck.

[00:04:17] Speaker 05:
She should have filed a claim for accrued benefits but didn't.

[00:04:22] Speaker 03:
With all due respect, Your Honor, the only way that an accrued benefit claim can be filed under 5121 small a is if there is a pending claim by the deceased veteran or claimant.

[00:04:37] Speaker 03:
There was no pending claim before the agency

[00:04:41] Speaker 03:
So there was no basis for Mrs. Merritt to have filed a claim under 5121A.

[00:04:46] Speaker 00:
She had... Can I just interrupt and get my two cents in?

[00:04:52] Speaker 00:
I'm sorry to interrupt you, but just following up on the same point, so your position is the claim, she can only file a claim before the agency.

[00:05:02] Speaker 00:
I guess I'm not clear what that means.

[00:05:05] Speaker 00:
If we were to remand this,

[00:05:07] Speaker 00:
to the CAVC, does that come within your definition of something before the agency?

[00:05:14] Speaker 03:
Yes, it does, Your Honor.

[00:05:15] Speaker 03:
But it would be based upon a remand from the court in which the court found that Mrs. Merritt was entitled to be the substituted appellant.

[00:05:26] Speaker 03:
It is our position that because of the absence of any reference in 5121A

[00:05:33] Speaker 03:
that requires the filing of that claim to substitute before the agency, not including the courts, would not be a bar to the finding by the court that she was a substituted appellant.

[00:05:50] Speaker 03:
That does not mean that the agency could not find on remand that she didn't meet the requirements of 5121 small a.

[00:05:59] Speaker 03:
But the requirements of 5121 small a to be a qualified substituted appellant only require that she had been married to the veteran at the time of his death.

[00:06:13] Speaker 01:
And she won.

[00:06:14] Speaker 01:
Mr. Carpenter, on that question, don't we have to decide that Christina Prewitt and Christina Merritt are one and the same persons in order to proceed at this stage?

[00:06:27] Speaker 03:
No, Your Honor, I do not believe that you need to do that.

[00:06:30] Speaker 01:
Although, if the court wants to pursue that inquiry, I believe we've provided adequate information in the record for you to make that... On that point, Mr. Carpenter, you say that we can rely on Christina Prewitt and Christina Merriman being one and the same person because it's a made-up name, a combination of Christina

[00:06:56] Speaker 01:
Marie Pisano and Christina Pisano Prewitt.

[00:07:01] Speaker 01:
That's correct, Your Honor.

[00:07:04] Speaker 01:
And that was agreed, you don't say who it was agreed to by.

[00:07:11] Speaker 01:
How do you get Prewitt out of the maiden, combination of the maiden name?

[00:07:18] Speaker 01:
Explain that to me.

[00:07:20] Speaker 03:
Your Honor, I cannot explain it.

[00:07:21] Speaker 03:
I merely represented what I was told by Mrs. Merritt.

[00:07:26] Speaker 03:
and that that was the agreement between she and her husband as to the name that she would use after their marriage as opposed to the name Merritt.

[00:07:37] Speaker 03:
The question is whether or not she is or is not a person who was married to Mr. Merritt.

[00:07:45] Speaker 03:
I believe that there is ample evidence.

[00:07:49] Speaker 01:
You also say that we know this is true.

[00:07:53] Speaker 01:
because the driver's license is in the name of pre-wet.

[00:07:58] Speaker 01:
I'm looking at the driver's license right now, and it is not in the name of pre-wet.

[00:08:04] Speaker 01:
It's in the name of merit.

[00:08:07] Speaker 03:
I apologize, Your Honor.

[00:08:09] Speaker 03:
That was a misstatement on my part.

[00:08:11] Speaker 01:
It was intended to say... It's material to your argument that they are one and the same person.

[00:08:19] Speaker 03:
But Your Honor, what was meant to have been said was that it was evident that she was Mrs. Merritt based upon the name Merritt on the driver's license.

[00:08:30] Speaker 03:
I apologize for that error.

[00:08:33] Speaker 01:
Well, that is a complete change of what you said in your writing to us.

[00:08:40] Speaker 01:
So all we're left with to satisfy ourselves, before I say that, let me say that on the death certificate,

[00:08:49] Speaker 01:
the alleged name of the surviving wife was Prewitt, not Merritt.

[00:08:56] Speaker 03:
That's correct, Your Honor.

[00:08:57] Speaker 03:
That's the name.

[00:08:58] Speaker 01:
So that raises a question as to whether they're the same.

[00:09:02] Speaker 01:
And now your only argument that they are the same is an out-of-court statement by your client that this was a made-up name that supposedly

[00:09:16] Speaker 01:
refers to both her maiden name and her married name.

[00:09:21] Speaker 01:
Do you have any other evidence on the record that would tell us that these are one and the same persons?

[00:09:30] Speaker 03:
No, Your Honor, I do not.

[00:09:31] Speaker 03:
But it seems to me that it is unreasonable for someone to claim to be a spouse of an individual when she is not.

[00:09:42] Speaker 03:
There is no reason for her to continue.

[00:09:46] Speaker 01:
I don't, I don't mean to be passing any aspersions on your client, but there is money at stake here.

[00:09:57] Speaker 03:
Well, your honor, there is only money at stake if she prevails in the appeal.

[00:10:02] Speaker 03:
There is no money.

[00:10:03] Speaker 01:
If it were to turn out the remand to the agency and further exploration,

[00:10:11] Speaker 01:
If it were to turn out that she's not in fact one missing person, then the money should not go to her.

[00:10:19] Speaker 03:
And that would be absolutely correct, Your Honor.

[00:10:22] Speaker 03:
And there is nothing that would impede the secretary.

[00:10:25] Speaker 03:
Sorry, Your Honor.

[00:10:26] Speaker 01:
Since all we have is an allegation by your client that isn't sworn to,

[00:10:37] Speaker 01:
It seems to be that it looks like there might be an act question that is better resolved by the agency than by us.

[00:10:46] Speaker 03:
Well, I disagree, Your Honor, because there is nothing pending before the agency.

[00:10:51] Speaker 03:
Well, let me bring you back.

[00:10:52] Speaker 05:
On that point, Mr. Carpenter, let me bring you back to the statute which says if a claimant dies while a claim for benefit is pending,

[00:11:05] Speaker 05:
or an appeal of a decision with respect to such a claim.

[00:11:09] Speaker 05:
So you can file an accrued benefits claim as long as there's an appeal pending with respect to the claim.

[00:11:16] Speaker 05:
So your theory that she couldn't file for accrued benefits because it was on appeal seems to be contradicted by the face of the statute.

[00:11:26] Speaker 03:
Your Honor, the Veterans Court in Breedlove addressed that issue.

[00:11:32] Speaker 03:
and concluded that the reference to appeal meant an appeal before the agency and not an appeal to the court.

[00:11:40] Speaker 03:
That precise argument was made in Breedlove and rejected by the Veterans Court that concluded that 5121A only applied to claims and appeals pending before the agency.

[00:11:57] Speaker 03:
So what were the, I'm not familiar with Breedlove, what were the facts of Breedlove?

[00:12:01] Speaker 03:
The facts were essentially the same as they were here in terms of the death of an individual who had a qualifying survivor who wished to be substituted.

[00:12:13] Speaker 03:
The question was whether or not before the court with the interpretation of 5121A and whether that statutory provision did or did not apply to the Veterans Court and required the Veterans Court to substitute.

[00:12:30] Speaker 03:
the Veterans Court concluded in breed love that 5121, capital A, did not apply to claims pending, or excuse me, appeals pending before that court, and only applied to claims and appeals pending before the secretary.

[00:12:49] Speaker 03:
And the Congress had expressly failed to address the role, if any, of the courts in substitution.

[00:12:58] Speaker 03:
the court went on to conclude in Breedlove that they would then, based upon their own rule and their prior case law regarding substitution, decide that substitution would be appropriate in appeals before the court.

[00:13:24] Speaker 03:
If I could return to my

[00:13:29] Speaker 01:
I just wanted to ask you one question.

[00:13:32] Speaker 01:
Judge Cleminger, in your reply brief, you note that in the event that we were to allow this case to go forward and we were to ruin your client's favor, the case would go back to the VA, at which point you would be required to file all of the information the secretary is asking for now.

[00:13:53] Speaker 01:
Do you say that in your reply brief?

[00:13:56] Speaker 01:
That's correct.

[00:13:57] Speaker 01:
And the secretary is saying that she would be required to file a claim for accrued benefits.

[00:14:06] Speaker 01:
So you agree that along the remand she would be required then to file a claim for the accrued benefits, right?

[00:14:15] Speaker 03:
I'm not sure I would go quite that far, Your Honor.

[00:14:20] Speaker 01:
I don't want to say yes or no.

[00:14:22] Speaker 01:
You said in your requirement they'd be required to fire all of the secretaries asking for her.

[00:14:28] Speaker 03:
And I agree.

[00:14:29] Speaker 03:
She would be required to provide all of that information in order to satisfy... I'm sorry, Your Honor.

[00:14:39] Speaker 01:
Would she be required to file a claim for accrued benefits?

[00:14:43] Speaker 03:
I do not believe so, Your Honor, because

[00:14:47] Speaker 03:
What would be then pending would be a remand from this court that was not pending at the time of death and in which she had been substituted by both this court and the Veterans Court following the remand from this court.

[00:15:04] Speaker 03:
What she would be required to do is to substantiate that she is, in fact, the spouse of Mr. Merritt.

[00:15:12] Speaker 03:
If she cannot satisfy that, and I believe

[00:15:15] Speaker 03:
that the secretary is entitled to make on remand a threshold determination of that anew.

[00:15:23] Speaker 03:
And if they find that she is not, then that would be a matter within their discretion to make a decision of the secretary under 501 that would then be subject to appeal as to whether or not she was or was not a person who was married at the time of death to Mr. Merritt.

[00:15:46] Speaker 01:
At the end of the game, the same question, is she the same, would have to be decided.

[00:15:56] Speaker 01:
Why isn't it more prudent to have it decided up front before we proceed any further?

[00:16:03] Speaker 03:
Simply because there is a question of law before the court that needs a legal determination that should not be deferred.

[00:16:14] Speaker 03:
pending a determination of her status by the agency.

[00:16:19] Speaker 03:
And that if this court wants to make that determination and require additional evidence from Ms.

[00:16:24] Speaker 03:
Merritt before she proceeds, excuse me, before this court proceeds, then certainly Mrs. Merritt will provide that information to the court as required.

[00:16:36] Speaker 01:
But it's a chicken and egg situation, Mr. Carpenter.

[00:16:39] Speaker 01:
If she's not one and the same,

[00:16:41] Speaker 01:
determined later on that that means she didn't have standing here.

[00:16:45] Speaker 01:
If she didn't have standing here, it means we didn't have the authority to answer the question of the law before us.

[00:16:51] Speaker 03:
And I understand that, Your Honor.

[00:16:52] Speaker 03:
What I'm trying to suggest is that if this court wants additional proof to be satisfied before you go forward to resolve this case as to the validity of her representation that she was married to Mr. Merritt at the time of his death,

[00:17:11] Speaker 03:
I will certainly produce that information in the form of sworn affidavits from her and anyone else who was in a position to know.

[00:17:23] Speaker 00:
Okay.

[00:17:24] Speaker 00:
Our time has expired.

[00:17:26] Speaker 00:
We didn't get a chance to discuss the merits, but of course we have all of your arguments in your briefs.

[00:17:31] Speaker 00:
So why don't we turn to the government and we'll restore a couple minutes for rebuttal.

[00:17:35] Speaker 00:
Thank you.

[00:17:39] Speaker 00:
Mr. King?

[00:17:40] Speaker 04:
Thank you, Your Honor, and good morning.

[00:17:43] Speaker 04:
We may please the court.

[00:17:44] Speaker 04:
I'd like to go right to the primary issue involved in standing.

[00:17:47] Speaker 04:
I believe the court has already honed in on the appropriate question.

[00:17:51] Speaker 05:
Do you disagree with read love and that there is no ability or obligation to file a claim for accrued benefits until the case is back before the agency?

[00:18:04] Speaker 04:
I don't, Your Honor, I don't believe that's what Breedlove was saying.

[00:18:09] Speaker 04:
Part of Breedlove was, I think maybe there's some confusion here between 38 U.S.D.

[00:18:13] Speaker 04:
Section 5121, Big A, and 5121 itself, because in Breedlove, the court was examining whether 5121, Big A applied to the courts, and it said it did not.

[00:18:28] Speaker 04:
However, the substance of entitlement for accrued benefits belongs in 5121.

[00:18:34] Speaker 04:
But the interesting point that Mr. Carpenter had raised about whether or not there needs to be a pending claim, Reed Love actually recognized that there was a death of the veteran during the proceedings before the Veterans Court, but still addressed the questions of whether or not that she was indeed the surviving spouse and whether or not they had filed the appropriate application within the one-year deadline.

[00:18:58] Speaker 04:
And it essentially did what we've asked this court to recognize in this case where

[00:19:04] Speaker 04:
Those are really upfront determinations that need to be made by the VA.

[00:19:08] Speaker 04:
Wait, wait.

[00:19:09] Speaker 05:
To be clear about this, do you contend that she's out of luck, that the case is moved because she didn't file a claim for accrued benefits within the one-year period with the VA?

[00:19:20] Speaker 04:
At this point, yes, Your Honor.

[00:19:22] Speaker 04:
We had stated that she could have filed an application when we were addressing the motion to substitute.

[00:19:29] Speaker 04:
Now that that one-year deadline has passed, she has essentially forfeited her rights.

[00:19:34] Speaker 04:
And that's exactly what the court recognized.

[00:19:38] Speaker 04:
This court recognized and then Reeves recognized that could happen if you blow that one-year deadline.

[00:19:43] Speaker 04:
We're essentially in forfeiture territory.

[00:19:45] Speaker 04:
And the scheme that she's suggesting that you could somehow have the court essentially take jurisdiction, address the merits, remand it back to address the upfront question,

[00:19:57] Speaker 04:
really upends the entire analysis that is supposed to occur here.

[00:20:01] Speaker 04:
She's merely alleged that she may have some sort of future entitlement, but these are determinations that need to be made upfront by the VA, especially here where there is a dispute over whether or not Christine Americk is actually the surviving spouse and when she has not filed the appropriate application before

[00:20:25] Speaker 04:
before the VA as an accrued benefits claimant.

[00:20:30] Speaker 00:
Wait a minute, I'm a little confused.

[00:20:32] Speaker 00:
You're saying we shouldn't do anything here.

[00:20:35] Speaker 00:
We should remand it back to the VA to make that determination in the first instance?

[00:20:40] Speaker 04:
Oh, I'll clarify that, Your Honor.

[00:20:42] Speaker 04:
In the parties were briefing the motion to substitute and we said remand was a possibility.

[00:20:47] Speaker 04:
That was still within the one-year deadline.

[00:20:50] Speaker 04:
Now that the one-year deadline has passed,

[00:20:52] Speaker 04:
She no longer has a claim for accrued benefit.

[00:20:56] Speaker 04:
She has not met the statutory requirement and essentially forfeited that right.

[00:21:02] Speaker 04:
So really there would be nothing to rematch.

[00:21:05] Speaker 04:
She's already blown that deadline and seems to concede here today that she did not file the appropriate application.

[00:21:12] Speaker 04:
Now that we're outside the one-year deadline.

[00:21:14] Speaker 04:
So I want to clarify the sort of the time frame we were talking about.

[00:21:17] Speaker 01:
This is George Cliff.

[00:21:20] Speaker 01:
I heard Mr. Kirkman's response to my question to him about whether she would be required to file the claim.

[00:21:27] Speaker 01:
And he had an argument.

[00:21:29] Speaker 01:
I didn't watch her plan completely saying that.

[00:21:38] Speaker 01:
Did you understand him?

[00:21:41] Speaker 01:
I'm sorry.

[00:21:42] Speaker 04:
I was having trouble hearing Judge Clevenger.

[00:21:45] Speaker 04:
Yeah, same, Your Honor.

[00:21:46] Speaker 04:
Your phone was breaking up slightly.

[00:21:47] Speaker 04:
If you could restate your question.

[00:21:49] Speaker 01:
Yes, thank you.

[00:21:50] Speaker 01:
I understood Mr. Carpenter and my direct question to him to be whether she was out of time.

[00:21:56] Speaker 01:
He said no.

[00:21:57] Speaker 01:
When we were at a remand, it was because he had not had a claim pending in front of the agency.

[00:22:03] Speaker 01:
He made an argument that I didn't follow that contended that she was not out of time.

[00:22:12] Speaker 04:
Again, I think that goes towards the question of 38 USC section 5121A.

[00:22:19] Speaker 04:
uh... in some respects but i i don't think that's an accurate uh... for mitzvah's representation of an accurate statement that she could somehow file out of time afterwards uh... we excited the spring court case schweiker where it basically that we're coming talking about the sort of statutory requirements uh... this court has no authority to overlook those uh... whether you know to say that there's somehow some uh... implied exception or difference

[00:22:47] Speaker 04:
simply because the case is before the court, but that also is inconsistent with Breed Love, which again had addressed the fact that that was, you know, it wasn't before the VA, it was before the Veterans Court.

[00:23:03] Speaker 04:
That's essentially the similar situation now, but again, Breed Love had still recognized that those requirements of meeting a surviving spouse and filing within the one-year deadline needed to be satisfied.

[00:23:15] Speaker 04:
and it recognized that those were satisfied in-breed love before it then addressed the separate question of whether it would allow substitution.

[00:23:23] Speaker 04:
Does that answer your question, Your Honor?

[00:23:25] Speaker 02:
Thank you.

[00:23:27] Speaker 02:
Yes, thank you.

[00:23:29] Speaker 04:
And I think that generally wraps up sort of the primary issues when it comes to standing without the question of, with the dispute over whether Ms.

[00:23:38] Speaker 04:
Murray is indeed this arriving spouse.

[00:23:41] Speaker 05:
Would it be fair to say that the VA has no evidence

[00:23:45] Speaker 05:
to suggest that she's not the surviving spouse?

[00:23:50] Speaker 04:
I'm not sure if there's anything else in the record that the VA has.

[00:23:53] Speaker 04:
And I think that would also upend the burden in that if she is the... No, but that's not my question.

[00:23:58] Speaker 05:
My question is, do you have any evidence that she's not the surviving spouse?

[00:24:04] Speaker 04:
To disprove her allegations, Your Honor?

[00:24:06] Speaker 04:
Yes.

[00:24:07] Speaker 04:
I don't believe.

[00:24:08] Speaker 04:
Well, I'm not aware of any evidence of that nature.

[00:24:12] Speaker 01:
What about the death certificate that claims that Christina Quit is the wife?

[00:24:21] Speaker 04:
Again, Your Honor, we don't have any other evidence.

[00:24:24] Speaker 01:
The death certificate lists Christina Quit as the informant, and the relationship to the decedent is stated as wife.

[00:24:36] Speaker 04:
Again, Your Honor, the only thing I could say is that we only have the difference in the

[00:24:41] Speaker 01:
Isn't that some evidence that there may be a difference between Christina Prewitt and Christina Merritt?

[00:24:49] Speaker 04:
Yes, Your Honor.

[00:24:49] Speaker 04:
Exactly.

[00:24:50] Speaker 01:
How can they both be the wife in Kansas for looking me as illegal?

[00:24:57] Speaker 04:
Unless they're the same person.

[00:24:58] Speaker 04:
Yes.

[00:24:59] Speaker 04:
Your Honor, these are obviously important questions.

[00:25:02] Speaker 04:
And there is a distinction between Christina Prewitt and Christina Merritt.

[00:25:05] Speaker 04:
And the only evidence that has come forward about this being a combined name

[00:25:10] Speaker 04:
is statement of counsel, which is not evidence.

[00:25:13] Speaker 04:
And it has recognized there's no other documentation that even includes sort of identifying information for the maiden name, Pezzano.

[00:25:21] Speaker 04:
So based on the fair record that's been submitted revolving the motion to substitute and the briefing on it, there's simply still a continued factual dispute over the appropriate identity.

[00:25:35] Speaker 04:
It may be the same person, it may not be, but that's sort of the fact-finding point that the determination needs to be made below and that the burden is on Ms.

[00:25:45] Speaker 04:
Merritt to prove her status sufficiently to meet one of the requirements under 38 U.S.D.

[00:25:54] Speaker 04:
Section 5121.

[00:25:56] Speaker 05:
If she had submitted a claim

[00:26:01] Speaker 05:
for accrued benefits within the one-year period, even while this case was pending on appeal, would the VA have accepted that application?

[00:26:10] Speaker 04:
Yes, Your Honor, would have accepted the application.

[00:26:12] Speaker 04:
It may be more appropriate to have incurred a stay for that adjudication to occur to recognize, to make sure both requirements were satisfied, but the VA would have accepted the application.

[00:26:26] Speaker 04:
And that's essentially what we had suggested

[00:26:28] Speaker 04:
on the motion to substitute, that it could be addressed that way.

[00:26:33] Speaker 04:
And for unclear reasons, the filing did not occur.

[00:26:41] Speaker 04:
Now, I think that hopefully addresses all the standing questions.

[00:26:46] Speaker 04:
But assuming the court does find that there is standing in this instance and addresses our next argument regarding jurisdiction, we believe this case

[00:26:55] Speaker 04:
only involves a question about the application of law to fact or a factual finding of no actual prejudice.

[00:27:01] Speaker 00:
Well, my preference would be the ability to discuss the standing and those related questions, that that's what we cover in the argument, unless my colleagues disagree.

[00:27:18] Speaker 01:
No disagreement from Judge Clevinger.

[00:27:22] Speaker 05:
Okay.

[00:27:24] Speaker 04:
So, Rhonda, to clarify, you just want to focus on the standing issue right now?

[00:27:27] Speaker 00:
Yeah.

[00:27:29] Speaker 00:
I think the argument for the appellant just consumes the standing, so we'll leave the remaining issues for the brief discussion on the brief.

[00:27:36] Speaker 00:
I think that's more appropriate.

[00:27:38] Speaker 00:
Understood.

[00:27:38] Speaker 04:
Greg and I, I think the merge issue is the easier of the issues that are addressed here, as you can see on the papers.

[00:27:44] Speaker 04:
But when it comes to standing, again, the court has identified

[00:27:49] Speaker 04:
The two main distinctions that really tank Ms.

[00:27:53] Speaker 04:
Merritt's claim here, and those are the key distinctions that differentiate this case from Reeves.

[00:27:59] Speaker 04:
It is not a straightforward application of Reeves.

[00:28:02] Speaker 04:
And I think outside of that and our discussion of Reeves, really the bottom line here is that Congress has established a scheme for accrued benefits.

[00:28:12] Speaker 04:
Certain requirements need to be met, and they have not been met here, and the court has no

[00:28:18] Speaker 04:
basis under the Supreme Court President Schweigler to overlook those basic statutory requirements for receipt of benefits.

[00:28:28] Speaker 04:
All that needs to happen is the process is followed.

[00:28:32] Speaker 04:
Thank you.

[00:28:34] Speaker 04:
No further questions from the court.

[00:28:36] Speaker 04:
I will turn it over to Mr. Carpenter.

[00:28:38] Speaker 00:
Thank you.

[00:28:39] Speaker 00:
Mr. Carpenter will restore three minutes rebuttal if you need it.

[00:28:43] Speaker 03:
Thank you very much, Your Honor.

[00:28:44] Speaker 03:
It seems to me that there is an inherent contradiction in the government's position.

[00:28:49] Speaker 03:
The government relies upon the proposition that Mrs. Merritt doesn't have standing before this court because her application is out of time.

[00:29:00] Speaker 03:
The only way her application can be out of time is if she is the wife of Mr. Merritt.

[00:29:08] Speaker 03:
It seems to me that this is a non-issue here

[00:29:15] Speaker 03:
from the perspective of who should make this determination.

[00:29:20] Speaker 03:
This determination should be made by the court.

[00:29:24] Speaker 03:
The court should satisfy itself, and if it requires more evidence or actual evidence for it.

[00:29:32] Speaker 01:
I'm sorry, Your Honor.

[00:29:33] Speaker 01:
Yes, Covenger.

[00:29:34] Speaker 01:
Could I interrupt you for a second?

[00:29:36] Speaker 01:
You just said the only way she's out of time is if she's the wife.

[00:29:39] Speaker 01:
Are you saying, in essence then, that if we determine she is the wife,

[00:29:44] Speaker 01:
then she is out of time.

[00:29:46] Speaker 03:
No, I am not, Your Honor.

[00:29:48] Speaker 01:
That's what your lead-in suggested to me.

[00:29:53] Speaker 03:
No.

[00:29:54] Speaker 03:
I am suggesting that the government's position that there is no jurisdiction is based upon her being out of time.

[00:30:04] Speaker 03:
She is only out of time under the government's argument if she is in fact

[00:30:11] Speaker 03:
Mrs. Merritt.

[00:30:12] Speaker 01:
I didn't understand the government's inresponsibility and arguments to be saying it was a jurisdictional issue.

[00:30:18] Speaker 01:
It was all in the context of the mootness discussion that Judge Dyke began the subject with.

[00:30:25] Speaker 03:
I understand that, Your Honor.

[00:30:26] Speaker 03:
I'm responding to their brief in which they assert that Mr. Merritt's death deprives this court of jurisdiction to decide this appeal.

[00:30:37] Speaker 03:
And that is simply incorrect

[00:30:40] Speaker 03:
under the interpretation of 5121A as interpreted by the Veterans Court in Breedlove.

[00:30:52] Speaker 03:
This is a question that should be decided.

[00:30:54] Speaker 05:
But if we hold that you had to file within the one-year period, this case is moved, right?

[00:31:02] Speaker 03:
That would be true, Your Honor, except that issue is not before this Court.

[00:31:07] Speaker 03:
What is before this court is whether or not Mr. Merritt's death deprives this court of jurisdiction.

[00:31:14] Speaker 03:
And the only way that Mr. Merritt's death deprives this court of jurisdiction is if there isn't an appropriate person to be substituted before this court.

[00:31:26] Speaker 03:
The question of being substituted before the agency is only based upon a claim that was pending because this is a

[00:31:36] Speaker 03:
predicate statute for accrued benefits in which the claimant is not asking for accrued benefit.

[00:31:45] Speaker 03:
The claimant is asking to be placed in the shoes of the appellant.

[00:31:51] Speaker 03:
Mrs. Merritt wishes to be in Mr. Merritt's shoes to pursue this appeal.

[00:31:57] Speaker 03:
in order to get a determination of law by this court as to whether or not the Veterans Court erred in failing to enforce its remand order.

[00:32:08] Speaker 05:
Why did Mrs. Merritt not file within the one-year period for accrued benefits?

[00:32:15] Speaker 03:
Because I did not believe that there was any basis for such an application since under my reading of BreedLove, there is no

[00:32:27] Speaker 03:
jurisdiction of the agency of original jurisdiction to take up this matter unless there was either a claim pending or an appeal pending before the agency.

[00:32:38] Speaker 03:
Reed Love clearly says that 5121A requires the motion for substitution as a predicate to proceeding before the agency.

[00:32:52] Speaker 03:
Mrs. Breedlove was not asking to proceed before the agency.

[00:32:56] Speaker 03:
She was asking to proceed in this appeal before this court because of her husband's death.

[00:33:05] Speaker 00:
If there are no further questions, I think that time has run out.

[00:33:10] Speaker 00:
And I think that will conclude the argument for this morning.

[00:33:13] Speaker 00:
We thank both counsel and the cases submitted.

[00:33:18] Speaker 01:
The honorable court is adjourned from day to day.