[00:00:00] Speaker 06:
Good morning.

[00:00:00] Speaker 06:
May it please the court, Robbie Manasse for Military Veterans Advocacy.

[00:00:05] Speaker 06:
Congress passed the AMA to make the appeals process for veterans better, but several aspects of the VA's final rule make the process worse.

[00:00:14] Speaker 06:
MVA challenges three.

[00:00:15] Speaker 06:
Our first challenge is to the rule's categorical refusal to consider cue claims based on changes in judicial interpretation.

[00:00:23] Speaker 06:
And before diving into the merits, there's just one overarching point that's easy to miss in the briefing that I want to make clear.

[00:00:29] Speaker 06:
And that's that the VA already recognizes a way that a long final decision can be revisited based on a change in judicial interpretation.

[00:00:37] Speaker 06:
It's called a supplemental claim.

[00:00:39] Speaker 05:
The problem is that route is... Mr. Manas, this is Judge Chen talking.

[00:00:45] Speaker 05:
Could you first start with the question of standing for MVA to challenge these three regulations?

[00:00:53] Speaker 05:
I understand we have an opinion DAV versus Gober.

[00:00:59] Speaker 05:
which at least suggests, perhaps strongly suggests that having members of an association that are veterans alone could be good enough to establish associational standing for the organization to challenge VA regulations.

[00:01:18] Speaker 05:
But as you know, standing is an issue in tomorrow's EnBank case.

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this is all going to be revisited tomorrow.

[00:01:29] Speaker 05:
I don't have a crystal ball.

[00:01:30] Speaker 05:
I can't say what's going to happen in tomorrow's end bank case.

[00:01:34] Speaker 05:
But I would be interested in hearing why you believe MVA has standing in light of Supreme Court case law on associational standing, which, at least from my reading, appears to be pretty demanding in the scrutiny it gives

[00:01:54] Speaker 05:
in terms of understanding whether a given association in view of any members actually have injuries back against some final agency action.

[00:02:04] Speaker 05:
So if you could speak to standing, I'd appreciate it.

[00:02:08] Speaker 06:
Sure.

[00:02:10] Speaker 06:
So Judge Ten, we've gone well above DAV's one veteran member standard.

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And the VA doesn't dispute that we meet the second and third prongs of associational standing.

[00:02:21] Speaker 06:
So the question is, as that's already you put it,

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Do we have a member that has an injury in fact?

[00:02:26] Speaker 06:
And we do.

[00:02:26] Speaker 06:
Um, as to the Q challenge, we have NBA veteran members who have had pending Q motions that haven't been granted and they've been forced to litigate these issues further.

[00:02:39] Speaker 06:
We have Mr. Hodge and we also have an NBA client of Commander Wells, Mr. Hammack, who have both filed Q motions based on changes in judicial interpretation.

[00:02:50] Speaker 05:
And the VA refused to act on them, and so they are pushing for those claims to be heard as Q, but they're not able to get them heard as Q. That's because they can be heard as supplemental claims in light of last year's congressional act that was passed that made Blue Water Navy vets whole.

[00:03:10] Speaker 05:
Am I right about that?

[00:03:13] Speaker 06:
No, there is no requirement in the Blue Water Navy Act that changes in interpretation based on Procopio be filed as supplemental claims.

[00:03:23] Speaker 06:
There is no requirement.

[00:03:25] Speaker 06:
All the Blue Water Navy Act says is that if you file a claim that was denied beforehand and it would be allowed under the Blue Water Navy Act terms, you can trace your effective date back to the original denial.

[00:03:42] Speaker 06:
But that's just permitting you to pursue the supplemental claim path.

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It's not requiring you to pursue the supplemental claim path.

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So the only basis on which the VA has rejected these Procopio-based Q claims is based on its understanding of Q and the Q exclusion.

[00:03:58] Speaker 06:
So if the Q exclusion is... I'm just trying to follow your line of thinking.

[00:04:03] Speaker 05:
If there are two potential pathways to get to the finish line of benefits,

[00:04:10] Speaker 05:
And one path is wide open for the claimant.

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And the other one is closed off.

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What is the harm to the claimant by just taking the path that's wide open to receiving the benefits?

[00:04:24] Speaker 06:
Well, the harm is manifold.

[00:04:26] Speaker 06:
I mean, first, you've got people who have pending few claims.

[00:04:31] Speaker 06:
And so they already have few motions teed up, ready to be decided, since it's ready to be granted.

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And what the VA is doing is forcing them to be filed.

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So they have to go through the hassle of refiling as a different sort of claim.

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And there's this delay that's, I mean, when you've got a Q motion teed up on Procopio, that's ready to be decided.

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But now there's this delay in having to resolve it.

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So even putting effective data aside, there is clear harm.

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We've also had evidence that Blue Water Navy veteran members of the organization have a harder time getting attorneys to

[00:05:03] Speaker 06:
represent them and they need attorney representation to vindicate their claims.

[00:05:06] Speaker 06:
That's why I wanted to sort of mention this point about the supplemental claim path and the Q claim path and how they're all related.

[00:05:15] Speaker 06:
The VA's final treatment of supplemental claims prevents a supplemental claim that's older than a year to be something that an attorney can get g's for, but that's precisely what these Procopio-based

[00:05:31] Speaker 06:
claims are because these claims were filed, they were denied long ago, well over a year ago.

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And that's going to be true of most changes in judicial interpretation.

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They were, they're going to reflect the practice that has been going on for a while.

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And so the supplemental claim path doesn't allow attorneys to get fees and the Q claim path doesn't either because the final rule categorically prohibits Q claims from being filed based on changes in judicial interpretation.

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And so that the upshot is, is that attorneys

[00:05:59] Speaker 06:
aren't getting fees and that disincentivizes them from taking work.

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And so it's harder for NBA Blue Water Navy veteran members and just veterans more generally to pursue their claims because it's harder to find attorney representation.

[00:06:12] Speaker 06:
As to the other challenges, I mean, on the fees, we have clear harm.

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NBA's attorneys are directly regulated.

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Commander Wells has submitted the declaration that he was denied over $50,000 in fees based on this prohibition.

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And if we're not harmed by this, no one is.

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Right.

[00:06:30] Speaker 06:
How about the last rule?

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So the last rule is to the docket switching bar based on the submission of evidence.

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And there we have identified a substantial and credible risk of harm.

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Both our attorney members and our veterans are people who regularly appear before the board to pursue claims.

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And this is a procedural right where imminence is at its lowest as the requirement of imminence.

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And it is straightforward how hamstringing one's ability to pursue the vehicle of their claims, the best suits indicating the claim is going to hurt them.

[00:07:06] Speaker 06:
Um, so, uh, there's a substantial, incredible risk of harm, both to NBA attorney members and NBA veteran members based on this procedural, uh, prohibition.

[00:07:17] Speaker 07:
This is judge Clevenger, but unlike your identification of Hodge with respect to Q.

[00:07:23] Speaker 07:
And Wells, with respect to the attorney's piece, I didn't see you identifying an individual name of a member veteran who would have a claim vis-a-vis the docket switch.

[00:07:38] Speaker 07:
Right.

[00:07:39] Speaker 07:
That is correct.

[00:07:42] Speaker 07:
There is no name associated with anybody with a claim on the docket switch, correct?

[00:07:48] Speaker 06:
That is correct.

[00:07:49] Speaker 06:
There is no one with a currently pending claim, but we have identified Commander Wells and Mr. Hood have both submitted declarations that their practice has been affected because this is in sort of their wheelhouse going before the board and this affects them in terms of the work that they'll take on.

[00:08:04] Speaker 06:
So again, this is a 38 USC 502 allows for pre-enforcement review, not mid-enforcement review or post-enforcement review.

[00:08:13] Speaker 06:
It allows for pre-enforcement review and

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All we need to show is a substantial threat of harm, and there is one here as shown by the Wealth and Hood Declaration.

[00:08:24] Speaker 06:
If I could turn to the merits, I would like to turn to the first challenge on the Q exclusion.

[00:08:31] Speaker 06:
So I was making the point that the VA already allows these claims to be raised to supplemental claims, and that dispatches of the VA's phantom of administrative efficiency being harmed

[00:08:44] Speaker 06:
These claims can already be brought just in a different vehicle.

[00:08:47] Speaker 06:
All we're trying to do is to get veterans the benefits they deserve, the best effective dates that they can get.

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And in depriving veterans of their benefits, the exclusion here is wrong three times over.

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It's contrary to this court's case law.

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It's contrary to the regulation that the exclusion interprets.

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And it's also contrary to the statute that the regulation implements.

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So on the case law, this court's case law is a loan dispositive.

[00:09:14] Speaker 06:
This was a question that was squarely addressed in the Patrick decisions.

[00:09:18] Speaker 06:
This court analyzed the Q claim brought under the parallel board level Q regulation, which contains... Mr. Manas, are you talking about the non-precedential Patrick opinion right now?

[00:09:30] Speaker 06:
I am talking about both Patrick 2, which was non-PREC, and Patrick 3, which was PREC.

[00:09:35] Speaker 06:
And Patrick 3 made this determination in Patrick 2, presidential.

[00:09:41] Speaker 06:
And so,

[00:09:44] Speaker 05:
The second Patrick opinion was about IJA fees, is that right?

[00:09:51] Speaker 06:
That's correct.

[00:09:52] Speaker 06:
That's correct, Your Honor.

[00:09:53] Speaker 06:
But I want to explain.

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So the IJA fees question, it all wrote on this question of whether the government was substantially justified in its position.

[00:10:02] Speaker 06:
If it was, it could have avoided fees.

[00:10:05] Speaker 06:
And in analyzing that question, the court asked, did the VA's position have a reasonable basis in law?

[00:10:13] Speaker 06:
And it said,

[00:10:14] Speaker 06:
you need to consider this question of what Q claims can constitute.

[00:10:19] Speaker 06:
What Patrick 2 said, said Q claims can be grounded in changes in judicial interpretation, and that is the law.

[00:10:26] Speaker 06:
And the VA needs to explain whether it was substantially justified in its position.

[00:10:30] Speaker 06:
It had a reasonable basis to argue otherwise.

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And this court was suggesting, no, it didn't, and said that this was very relevant.

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So it was material for the outcome of this case.

[00:10:41] Speaker 06:
of the Patrick III case, even though it was about fees, the question was, was the VA's contrary position have a reasonable basis in law?

[00:10:51] Speaker 06:
And as Patrick II indicated, it did not.

[00:10:54] Speaker 05:
This is, I just have a quick question.

[00:10:57] Speaker 05:
My understanding is that in 1997, when it comes to CUTE claims, Congress codified a long prior pre-existing administrative practice that was

[00:11:11] Speaker 05:
provided for in rule 3.105, is that right?

[00:11:19] Speaker 05:
That is right, yes.

[00:11:20] Speaker 05:
Okay, so when I look at the pre-1997 version of the VA's rule 3.105, the first sentence, the first statement of that regulation is the provisions of this section referring to Q apply except where

[00:11:41] Speaker 05:
And then dot, dot, dot, there's a change in law or Department of Veterans Affairs issue or a change in interpretation of law for Department of Veterans Affairs issue.

[00:11:49] Speaker 05:
And that language carried forward in after 1997 and then at least with the exact same language that we looked at in the DAV versus Gober opinion, we approved of that.

[00:12:11] Speaker 05:
And I guess what I'm wondering is it looks to me like there had always been an exception to Q when that bar to Q claim whenever there was a quote unquote change in interpretation of law.

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And I don't see that phrase in the old regulation as being cabined in to just agency changes in interpretation of law

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or necessarily excluding judicial changes in interpretation of law.

[00:12:45] Speaker 05:
So as I understand the DAV opinion, as I understand the agency's pre-1997 practice that got codified by Congress all along, there was an adoption of a conception of Q that precluded a Q claim based on

[00:13:07] Speaker 05:
any change in interpretation of law, including a judicial interpretation.

[00:13:12] Speaker 05:
And I was wondering if you could comment on this line of thinking.

[00:13:17] Speaker 06:
Sure.

[00:13:17] Speaker 06:
And I perhaps I'll address Gav first, then turn to, oh, I see that I'm in my rebuttal if you would just indulge me to answer the question.

[00:13:28] Speaker 06:
So I was thinking I would address Gav first, and then turn to the introductory passage you mentioned on this codification idea.

[00:13:37] Speaker 06:
Um, so DAV, all DAV did is it upheld the board's regulatory exclusion, but it didn't say what its scope was.

[00:13:45] Speaker 06:
It didn't say anything about whether it contemplated a change in interpretation of law by a court or an agency.

[00:13:54] Speaker 06:
And in fact, it indicated that it didn't encompass a change in interpretation by a court because to some total of what it said is excited Russell, um, which our briefing explains shows that

[00:14:08] Speaker 06:
Changes in judicial interpretation aren't covered by the exclusion because Russell explained that Q is intended to conform the decision to the true state of the law.

[00:14:20] Speaker 06:
The true state of the law is what the correct interpretation of the statute of provision is, which is what the court is announcing.

[00:14:28] Speaker 06:
And it also cited Harper, but Harper didn't involve a change in interpretation of the meaning of a statute of regulation.

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It involved a new principle of federal law.

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Um, uh, it declared a certain type of, there was a certain type of taxing practice that was declared unconstitutional.

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And, um, Harper said it had to be applied on a case on direct review retroactively, but that was a new rule of federal law.

[00:14:53] Speaker 06:
That wasn't a change.

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It wasn't an interpretation of the meaning of a statute or regulation.

[00:14:57] Speaker 06:
So there's no indication that DAV had any thought about applying this to changes in judicial interpretation.

[00:15:05] Speaker 01:
Okay, let's stop there.

[00:15:08] Speaker 01:
Unless Judge Clemender, do you have any questions?

[00:15:11] Speaker 01:
No, I'm fine, thank you.

[00:15:13] Speaker 01:
Okay.

[00:15:13] Speaker 01:
And we'll reserve three minutes of time for rebuttal.

[00:15:19] Speaker 01:
Let's hear from the other side now.

[00:15:27] Speaker 00:
Thank you, Your Honor.

[00:15:28] Speaker 00:
May it please the Court, I'll just quickly start by addressing

[00:15:32] Speaker 00:
quickly a couple of issues on standing that the court and Mr. Munoz discussed.

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And I'll start by addressing the situation of MVA's member standing with regard to the Q rule.

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And I want to address Mr. Munoz's discussion of Mr. Hodge.

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And I think, as Judge Ten pointed out, Mr. Hodge cannot demonstrate that he was injured

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or even has a prospective actual imminent threat of injury with regard to the Q Rule because he is covered by the Blue Water Navy Act.

[00:16:06] Speaker 00:
And the Blue Water Navy Act is, of course, an extraordinary remedy that Congress undertook to allow veterans subject to the act, such as Mr. Hodge, to apply for benefits with an early or effective date without regard

[00:16:19] Speaker 00:
to whether Q existed or not.

[00:16:21] Speaker 00:
And so, in this case, Mr. Hodge cannot establish, and NBA cannot establish on behalf of Mr. Hodge that he's injured in any way because it appears that the... Yes, but I couldn't just beg it.

[00:16:34] Speaker 07:
Ms.

[00:16:34] Speaker 07:
Judge Clem, could I interrupt?

[00:16:35] Speaker 07:
Does the Blue Water Act require, a veteran who is seeking benefits under the Blue Water Act, does he, does he require defiable supplemental claim in order to pursue those rights?

[00:16:49] Speaker 00:
I'm not completely familiar with the Blue Water Navy Act.

[00:16:55] Speaker 00:
I don't believe that any veterans are required to file claims, but I believe if they want to receive the benefits that the Blue Water Navy Act

[00:17:06] Speaker 00:
confers such as the earlier effective date without regard to it being a supplemental claim, then I do believe that they have to file the supplemental claim, but the effective date would be... That's why I was asking.

[00:17:19] Speaker 07:
My reading of the Blue Water Act is that the effective dates for a Blue Water Act claim are stated in the statute and the statute's key to the requirement to file a supplemental claim.

[00:17:35] Speaker 00:
Yes, Your Honor, but even if the Act requires a veteran to file a supplemental claim, a supplemental claim will then entitle them under the Act to an early effective date, not just the... That's what I understood.

[00:17:48] Speaker 07:
They get to keep their earlier effective date.

[00:17:50] Speaker 07:
So practically speaking, a Blue Water veteran seems to be required, and Mr. Maas can listen and come back on rebuttal if he thinks I'm wrong, they're practically required to file a supplemental claim to preserve their effective date.

[00:18:06] Speaker 07:
Once they file their supplemental claim, if the claim is rejected on any ground, then they can appeal to the BVA or take any of the other three options, a high level review, or they can go to the BVA.

[00:18:22] Speaker 07:
If they pursue, if they decide to elect not to pursue and let the denial of their supplemental claim go final, they can file a few claims, correct?

[00:18:34] Speaker 07:
Nothing bars them from filing a Q claim.

[00:18:38] Speaker 00:
Uh, it's, it's, they let their decisions, um, at the board or the regional office go final on the supplemental claim.

[00:18:46] Speaker 00:
Yeah.

[00:18:47] Speaker 00:
Yeah.

[00:18:47] Speaker 07:
What I'm trying to do is to put Mr. Podge in a first time perspective.

[00:18:53] Speaker 07:
So if he's required now to file a supplemental claim, then he may well prevail on that and they wouldn't have any problem.

[00:19:01] Speaker 07:
If he doesn't prevail on that, he has various options, including go to the BVA, going all the way through us, and then at least going through the CAVC, he can preserve his effective date by filing a queue after he loses there.

[00:19:20] Speaker 07:
So he's not barred from filing a queue in that it may be some time before he would ever be filing a queue.

[00:19:26] Speaker 00:
No, by no means is he barred from filing a Q claim.

[00:19:30] Speaker 00:
And not only is he not barred from filing a Q claim, the Blue Water Navy Act and his supplemental claim in front of that would redress any injuries that he's alleging as a result of Procopio.

[00:19:42] Speaker 07:
At the time he would be filing his Q claim, there may have been some judicial determination that helps him.

[00:19:49] Speaker 07:
There may not be, correct.

[00:19:51] Speaker 07:
There's none with respect to his particular

[00:19:55] Speaker 07:
grounds for which he would object if his supplemental claim was denied, there is no existing law that would prevent him from winning a cue, correct?

[00:20:08] Speaker 00:
So far?

[00:20:09] Speaker 03:
So far as we know.

[00:20:13] Speaker 00:
Yes, Your Honor.

[00:20:15] Speaker 00:
I'd then just like to touch briefly, as Mr. Manoj did, on the docket switching rule.

[00:20:20] Speaker 00:
Ms.

[00:20:20] Speaker 05:
Bae, just to finish off,

[00:20:23] Speaker 05:
This particular issue, I heard Mr. Manas drill down and reference a couple of problems going with the supplemental claim route that thereby creates, in fact, some kind of injury to being deprived going the Q claim route.

[00:20:41] Speaker 05:
And I heard him say something about timing.

[00:20:45] Speaker 05:
I guess if you've already got a pending Q claim, why make Mr. Hodge go through this

[00:20:52] Speaker 05:
supplemental claim route, and then two, going the supplemental claim route is difficult because you're very likely to not have representation because currently there is no ability for attorneys to be compensated for this type of supplemental claim work.

[00:21:13] Speaker 05:
So I heard him describe two kinds of harms.

[00:21:17] Speaker 05:
Could you just speak to that?

[00:21:19] Speaker 00:
Yes, Your Honor.

[00:21:20] Speaker 00:
To address your second question first,

[00:21:22] Speaker 00:
I think that Mr. Manas's second point is belied by the fact that Mr. Hodge appears to have representation, and MBA is assisting him.

[00:21:30] Speaker 00:
And so he can't demonstrate that he has not been able to get help with his supplemental claim, because he, in fact, does have help with his supplemental claim.

[00:21:39] Speaker 00:
I don't know whose client he is exactly, but he's clearly a member of MBA and would be receiving some sort of assistance from MBA, unless Mr. Manas tells me differently.

[00:21:49] Speaker 00:
With regard to your first point, I don't think that Mr. Menos or MBA in its supplemental briefing has established that getting a decision on Q would be any quicker or more accurate than a supplemental claim.

[00:22:04] Speaker 00:
And so given the vagueness of that allegation, I don't think that he can establish that Mr. Hodge has suffered any sort of injury by having to bring it under the Blue Water Navy Act as opposed to as a Q allegation.

[00:22:18] Speaker 00:
I'd like to just quickly touch on the docket switching rule, only to point out that... Could you first do attorney's fees?

[00:22:25] Speaker 07:
Why isn't Mr. Wells' declaration sufficient to show standing on attorney's fees?

[00:22:31] Speaker 00:
Your Honor, in our supplemental brief, we initially disputed or questioned the vagueness, again, of Mr. Wells' declaration.

[00:22:40] Speaker 00:
We didn't think that he had offered enough particulars, but we do think that he has offered

[00:22:46] Speaker 00:
a good deal more particulars, including an attachment to his supplemental reply brief.

[00:22:53] Speaker 00:
So while we question why Commander Wells did not include a sufficient amount of information in the first place, we do think that he likely has standing to demonstrate MBA's associational standing regarding the fee roll.

[00:23:08] Speaker 07:
Will you say you likely?

[00:23:09] Speaker 07:
Is that a concession?

[00:23:11] Speaker 07:
Assuming that we find that all of the information that's been submitted with regard to Wells was timely submitted, did I just hear the government concede standing on attorney's fees for Wells?

[00:23:26] Speaker 00:
I think we could concede standing on attorney's fees, yes.

[00:23:31] Speaker 00:
And now just quickly on the docket switching, the sole point I want to make is that

[00:23:36] Speaker 00:
that this is even more attenuated than the standing with regard to Q, at least in Q they could point to one actual person even though he hasn't actually demonstrated injury with regard to dockets.

[00:23:48] Speaker 05:
Would you just quickly speak to the inevitability idea that I was hearing from the other side that it's inevitable that they're going to be faced with this conundrum of being blocked from doing a lane switch because one of their, they on behalf of one of their clients submitted some evidence

[00:24:07] Speaker 00:
Well, they stated that they submitted evidence and that this shows inevitability, but I don't find that anything that they submitted showed any concrete worry about it actually being inevitable.

[00:24:18] Speaker 00:
I realize this gets into the merits a little bit, but there's no grounds to think that members are even likely to run into this issue.

[00:24:26] Speaker 00:
The docket switching rule permits three different lanes after the initial decision, but then three different lanes also in front of the board.

[00:24:34] Speaker 00:
the docket switching rule is actually very generous to veterans in allowing them to switch within the first 60 days and even after that if they show good cause, the only rule is that they can't switch after they submit evidence or testimony and there's no reason to think that this is going to be any sort of concrete problem for any of their members, much less veterans in general, that they go all the way through with submitting evidence and their

[00:25:00] Speaker 00:
and testimony before they want to switch.

[00:25:02] Speaker 07:
So this is... Ms.

[00:25:04] Speaker 07:
Byers, Judge Clevinger, I would think the court could take judicial notice, given its experience with BVA claims, that at the BVA quite frequently, while the case is at the BVA, there is evidence, new evidence and testimony.

[00:25:19] Speaker 07:
And so the likelihood of someone being in that time posture and wanting to switch dockets seems to be inevitable, but that will arise.

[00:25:30] Speaker 00:
I agree with your honor that it seems inevitable that veterans will want to switch dockets.

[00:25:36] Speaker 07:
So if the occasion is inevitable, it will arise.

[00:25:41] Speaker 07:
Your argument would be, well, they can't name a person who's standing right in line now who wants to switch.

[00:25:48] Speaker 00:
Well, it's not only that, although it is true that they cannot name a single person that is even.

[00:25:54] Speaker 07:
Let me go on beyond that.

[00:25:56] Speaker 07:
I know this is all coming very quickly at us, but I understood

[00:26:00] Speaker 07:
Mr. Manas also to say that with respect to this particular claim, we're dealing with a procedural right rather than a substantive right.

[00:26:08] Speaker 07:
And in the case of standing, I do believe the lesser is required to be shown where you're trying to deal with a procedural right.

[00:26:15] Speaker 07:
Would you agree with that proposition?

[00:26:18] Speaker 07:
Would you agree with the proposition that in the standing analysis, that what we're talking about is a procedural right,

[00:26:28] Speaker 07:
You have a lower threshold of showing in order to establish standing?

[00:26:34] Speaker 00:
Well, Your Honor, even agreeing with the premise tonight... Do you agree with that proposition of law, I'm asking you?

[00:26:42] Speaker 00:
I agree that it's not exactly the same to establish standing without needing to... I believe that

[00:26:52] Speaker 00:
They quote, not needing to meet all the normal standards for redressability, and quote to this court's decision in salmon spawning.

[00:26:59] Speaker 00:
But I think it's important to note also that they're not challenging the docket switching rule as a procedural right.

[00:27:05] Speaker 00:
They're actually challenging the Q rule as a procedural right.

[00:27:08] Speaker 00:
I'm looking at their supplemental brief right now.

[00:27:10] Speaker 00:
And the Q rule is certainly not procedural as we established in our supplemental brief, because they're not even briefed.

[00:27:15] Speaker 07:
No, no, no.

[00:27:16] Speaker 07:
You got me wrong.

[00:27:17] Speaker 07:
We're trying to drill down on the standing for the docket switching.

[00:27:21] Speaker 07:
20.202C2?

[00:27:24] Speaker 03:
Yes.

[00:27:24] Speaker 07:
And what I was trying to get at is that Mr. Manas made the point that he believes that this is a procedural right to switch dockets.

[00:27:35] Speaker 07:
In briefs in the other cases, the government has made an argument that something is a substantive right like Q as opposed to this.

[00:27:42] Speaker 07:
If this is indeed a procedural right, is there a lower threshold we should be looking for for the personal harm?

[00:27:50] Speaker 07:
That's my question.

[00:27:52] Speaker 00:
Yes, Your Honor.

[00:27:52] Speaker 00:
I was simply trying to point out that NDA, in its brief, I'm not entirely positive what Mr. Monoff said about it and the argument today, but NDA in its brief never alleged that the board switching rule was a procedural right.

[00:28:05] Speaker 00:
They only alleged that with regard to Q. So I'd get to that.

[00:28:10] Speaker 07:
Could I come back, please?

[00:28:11] Speaker 07:
This is very quickly precise stuff.

[00:28:16] Speaker 07:
Let's assume that we had and that we were looking at the standing issue on the docket switch.

[00:28:22] Speaker 07:
And let's say that if the government has conceded inevitability, and the government has conceded that this is a procedural matter, is the only reason that you would think standing is inadequate is that they have not identified a named person who is standing in line to make a docket switch.

[00:28:43] Speaker 00:
Well, Your Honor, I don't believe we've conceded that it's inevitable that they would try to switch after the submission of evidence.

[00:28:51] Speaker 00:
But assuming inevitability and assuming it's procedural, then I would believe that MBA has likely demonstrated standing regarding the docket switching.

[00:29:01] Speaker 07:
But we don't think that... Wait, wait, wait.

[00:29:04] Speaker 07:
Be careful.

[00:29:06] Speaker 07:
Assuming that there is inevitability and assuming it's procedural, even without naming

[00:29:13] Speaker 07:
an individual who is seeking to assert his right, you say you would be willing to concede standing?

[00:29:24] Speaker 00:
I am not, I would need to look more closely at the standards for

[00:29:30] Speaker 00:
what standing is required, assuming it's procedural.

[00:29:33] Speaker 00:
I don't have them quite at hand, but I do believe that they are more lenient.

[00:29:37] Speaker 00:
So I would need to look at those to have a firm answer on that.

[00:29:41] Speaker 00:
And I can, of course, submit one to the court if the court wishes us to dig into that issue.

[00:29:46] Speaker 07:
But... Let me just put a footnote to what I've been saying to you to maybe give you a little relief.

[00:29:54] Speaker 07:
The government can't concede standing.

[00:29:56] Speaker 07:
We have to decide ourselves whether to stand.

[00:29:59] Speaker 07:
But the purpose of my discussion with you was to test just exactly how you would see the procedural and the inevitability issues playing into this.

[00:30:08] Speaker 07:
So thank you for your comments.

[00:30:11] Speaker 00:
Thank you, Your Honor.

[00:30:11] Speaker 00:
And I believe I only have a few seconds left.

[00:30:15] Speaker 00:
So I would just ask whether the court would want or permit us to speak very briefly on the merits, at least of the Q-Rule.

[00:30:23] Speaker 01:
Yes.

[00:30:24] Speaker 01:
Go ahead and address the merits.

[00:30:26] Speaker 00:
Thank you.

[00:30:26] Speaker 00:
And, of course, I will be as quick as possible.

[00:30:29] Speaker 01:
Very briefly.

[00:30:30] Speaker 00:
Yes.

[00:30:30] Speaker 00:
Okay.

[00:30:30] Speaker 00:
Ms.

[00:30:31] Speaker 05:
Bae, when it comes to the regulation, which is in front of us as well as the 1996 version of 3.105, the regulation talks about how Q applies except where there's a change in law or Department of Veterans Affairs issue or a change in interpretation of law or a Department of Veterans Affairs issue.

[00:30:56] Speaker 05:
And I just didn't understand, what does Department of Veterans Affairs issue mean?

[00:31:02] Speaker 05:
Do you know?

[00:31:03] Speaker 00:
I'm not entirely sure.

[00:31:05] Speaker 00:
I admittedly did not go and look into exactly what that means simply because the issue at hand in this case was a change in interpretation or change in law.

[00:31:16] Speaker 00:
And so I am not entirely positive what change in VA issue means.

[00:31:20] Speaker 00:
I do believe that both versions of 3.105 make it very clear that changes in interpretation do not serve as grounds for a Q. And I just, to address Mr. Manoff's arguments regarding the Q rule, they say that the case law, the regulation, and the statute are all contrary to the

[00:31:46] Speaker 00:
conclusion that 3.105 precludes Q review on the grounds of a change in judicial pronouncement or a change in judicial interpretation of law.

[00:31:56] Speaker 00:
However, as we demonstrated in our brief, the case law, the regulation and the statute, the regulation and the statute being informed by congressional intent all very clearly demonstrate that

[00:32:08] Speaker 00:
the regulation is valid and that judicial interpretations are precluded.

[00:32:12] Speaker 00:
But I would suggest that the court does not even need to reach those last two because DAV and Jordan are just positive of this matter.

[00:32:21] Speaker 00:
And as Your Honor noted, Patrick II is not presidential and Patrick III did not make Patrick II presidential.

[00:32:30] Speaker 00:
And therefore, there is no reason not to simply follow DAV and Jordan here.

[00:32:36] Speaker 00:
And there is no reason not to extend the rules regarding the board to rules regarding the agency of original jurisdiction, particularly because Congress had shown intent to treat them the same.

[00:32:49] Speaker 00:
With that, unless the court has any other questions, which I'm happy to field, we would ask that the court.

[00:32:54] Speaker 00:
I'm sorry.

[00:32:55] Speaker 05:
I do have one last question.

[00:32:56] Speaker 05:
And it relates to the Nod Modification Regulation.

[00:33:04] Speaker 05:
I did not see a specific response to the comment about how it would be burdensome or unfair to claimants to restrict their ability to switch lanes after they submit evidence.

[00:33:20] Speaker 05:
And the response to that seemed to be more about just general efficiency and

[00:33:29] Speaker 05:
and things like that, but I don't understand right now sitting here why it's inefficient to deny a claimant the ability to switch lanes once the claimant has submitted some evidence.

[00:33:46] Speaker 05:
I don't understand what it is about that action, that receipt of evidence that causes the agency to fall down if a claimant subsequently wants to switch lanes.

[00:33:57] Speaker 05:
Could you explain?

[00:33:58] Speaker 00:
Yes, Your Honor.

[00:34:00] Speaker 00:
First, more broadly speaking, the AMA was put in place in order to help fix some of the efficiencies.

[00:34:09] Speaker 05:
I understand all that.

[00:34:10] Speaker 05:
We only have a little bit of time.

[00:34:11] Speaker 05:
Could you just answer my specific question of why is there some real tangible inefficiency to permitting a lane switch after the submission of evidence?

[00:34:23] Speaker 00:
Well, Your Honor, I think as VA pointed out at Appendix 16 and 17 that there are inefficiencies with both making it difficult for VA to provide accurate data like wait time if veterans are allowed to switch basically at will and that there is a need to balance the desire for veterans to change dockets against the needs of other veterans waiting for a board decision and that those other veterans

[00:34:48] Speaker 00:
if veterans were allowed to switch after evidence was submitted, so more or less whenever, that they would then, because they keep their original dockets.

[00:34:59] Speaker 07:
The question is why is it less efficient after the evidence as opposed to no evidence?

[00:35:06] Speaker 07:
Clearly a veteran is allowed to switch dockets if there's no evidence or testimony involved.

[00:35:15] Speaker 07:
And so that's inefficient because it requires BVA to jockey things around.

[00:35:21] Speaker 07:
Why is it more inefficient if evidence or testimonies come in?

[00:35:26] Speaker 07:
That's the question.

[00:35:29] Speaker 07:
Well, I think VA explained that the reason it's inefficient is because... The question is, where does VA explain it in the public record?

[00:35:37] Speaker 07:
It doesn't work for you to come in here now and make an explanation for rationale.

[00:35:43] Speaker 07:
The rationale has to be on the record.

[00:35:45] Speaker 07:
in order to save the regulation from arbitrary inquisitiveness?

[00:35:50] Speaker 07:
Yes, Your Honor.

[00:35:52] Speaker 07:
Where is there an explanation in the record of why it is more inefficient for the agency to switch a docket at the BBA if there is evidence or testimony compared to the inefficiencies if the request isn't based on those two reasons?

[00:36:11] Speaker 00:
Well, Your Honor, I think at

[00:36:14] Speaker 00:
the appendix pages 397 and 398, which I think was the notice of the proposed rule, the VA I think explained in those pages that the purpose of that particular prohibition about evidence and testimony would have been to prevent the appellant from unfairly gaining advantage of two dockets.

[00:36:33] Speaker 00:
And this was supported again by then its comments to the, or its response to the comments submitted in

[00:36:42] Speaker 00:
with regard to the proposed rule and VA I think explained on Appendix 16 that it would give the veteran an opportunity to switch dockets and unfairly disadvantage other dockets or other veterans who might otherwise wait longer if because the veteran who's switching gets the advantage of keeping their original get date and so they would then jump in line.

[00:37:05] Speaker 07:
Wouldn't that also be true if someone is trying to switch a docket but isn't using

[00:37:10] Speaker 07:
testimony or evidence as the basis.

[00:37:14] Speaker 00:
It would be true, but that's why VA has built in, I think now a 60-day rule, it was before a 30-day rule, and I don't think the 60-day rule is that issue in this case, but that's why VA has built in safeguards and why the... That's after the fact.

[00:37:31] Speaker 07:
That's not in the regulations that are in front of us.

[00:37:35] Speaker 07:
I mean, you can't supply a rationale outside the record.

[00:37:41] Speaker 07:
It may well be that it's correct that you've cured the problem.

[00:37:48] Speaker 07:
I'm hearing you to say that the rationale explained that 397, 998, 916, 917 is only with regard to inefficiencies or prejudice where someone has put in the new evidence because they're jumping

[00:38:06] Speaker 07:
a position over some other veteran who's waiting for his docket?

[00:38:11] Speaker 00:
Yes, Your Honor.

[00:38:12] Speaker 00:
VA... VA discuss these... Sorry, Your Honor.

[00:38:19] Speaker 07:
Isn't the other veteran equally prejudiced if the docket changes without faces in evidence or testimony?

[00:38:30] Speaker 00:
I'm not entirely sure I understand, Your Honor's question.

[00:38:33] Speaker 00:
Are you asking whether veterans are

[00:38:34] Speaker 00:
Also prejudice by veterans switching dockets before submitting evidence or testimony?

[00:38:40] Speaker 00:
Yes.

[00:38:42] Speaker 00:
I mean, I think that, yes, there is some level of some veterans are going to be disadvantaged by the docket switching rule.

[00:38:49] Speaker 00:
But it also, again, as VA explained, there has to be a balance.

[00:38:53] Speaker 00:
They're trying to balance the desire to change dockets and the right to change dockets against the needs of the other veterans waiting for their board decision.

[00:39:01] Speaker 00:
VA determined and explained that 1617 and 39798 that with regard to both the time and the evidence submission that these rules were put in place to balance the needs of the veterans who want to switch versus the needs of the veterans that are waiting and also referenced its own difficulties in providing accurate data, which was part of what it wanted to do, which is give accurate data regarding wait time to the veterans who are in front of the board.

[00:39:30] Speaker 05:
I'm sorry.

[00:39:32] Speaker 01:
I think I'm going to.

[00:39:34] Speaker 05:
I'm sorry.

[00:39:34] Speaker 05:
I do have another question for Ms.

[00:39:36] Speaker 05:
Bae, if I may.

[00:39:38] Speaker 05:
And it relates to the attorney's fees on 5104CB type supplemental claims.

[00:39:49] Speaker 05:
And Ms.

[00:39:50] Speaker 05:
Bae, when I read the two Federal Circuit opinions in Stanley and Carpenter, that each went through the legislature

[00:40:00] Speaker 05:
It seems clear to me that those opinions read as saying that the statute was designed to permit fees for any work performed after the initial decision.

[00:40:12] Speaker 05:
And so I don't know why that wouldn't also apply to this type of supplemental claim that we're talking about here as to this regulation, 14.636C1I.

[00:40:29] Speaker 05:
And Carpenter, that's all I'm asking.

[00:40:33] Speaker 00:
We actually think that Stanley and the Sears case suggests that there's a different treatment for reopening a case versus the original case.

[00:40:43] Speaker 00:
And here, I think we established in our brief that this is not, it's not, it's treated essentially as a new case for the purposes of a supplement claim that is after a year.

[00:40:53] Speaker 00:
And that's why VA drew the distinction between supplemental claims that are continuous, i.e.,

[00:40:59] Speaker 00:
within one year and part of the three lanes that a claimant can undertake versus a supplemental claim that's, you know, for example, 10 years down the line after the cases become final.

[00:41:10] Speaker 00:
And so when the cases become final and a veteran submits a supplemental claim, it's

[00:41:16] Speaker 00:
essentially treated as a new case, and that's why the AOJ's decision would be treated as an initial decision.

[00:41:23] Speaker 00:
And I don't want to get too into depth because of time, but I think our brief establishes why there's such a distinction and a difference between supplement claims that are filed on non-final decisions versus supplement claims that are filed in final decisions.

[00:41:38] Speaker 00:
And just to finish up, I would note that the VJRA, as is cited in our brief,

[00:41:46] Speaker 00:
suggests that Congress did not intend paid representation for vets who wait years without any action and then request a reopening and pursuit of the claim at the RO level.

[00:41:58] Speaker 00:
So I think that there is plenty of precedent and congressional intent for treating supplemental claims on final decisions differently than supplemental claims that are part of the same initial decision because it hasn't been finalized yet.

[00:42:16] Speaker 01:
Okay, let's we can stop there and let's go back to Mr. Manas and I'm going to restore you back to three minutes.

[00:42:27] Speaker 06:
Thank you, Judge Raina.

[00:42:28] Speaker 06:
A lot to respond to, just starting with standing on cue and to address Judge Clevenger's question.

[00:42:34] Speaker 06:
There's clear harm that's already happened to Hodge and Hammock.

[00:42:38] Speaker 06:
They're being forced to face delay by refiling in a different path and

[00:42:44] Speaker 06:
Five hundred dollars now is worth a lot, is more valuable than five hundred dollars a year from now.

[00:42:50] Speaker 01:
Delay matters, I mean, hassle matters, and the Supreme Court precedent... Counselor, let's assume that there's no clear harm.

[00:43:00] Speaker 01:
What about the line of thought that Judge Cleveringer was asking about, the inevitability line of thought?

[00:43:12] Speaker 06:
Well, so I believe the inevitability point was being raised with regard to the docket switching bar, which I agree it is inevitable given the practice of these veterans attorneys and the situation of these disabled veterans who have claims.

[00:43:25] Speaker 06:
But it's also, I think, inevitable for the Q path.

[00:43:29] Speaker 06:
To be clear, Ms.

[00:43:31] Speaker 06:
Bates said we didn't claim that procedural right relaxed imminence applies across all claims.

[00:43:37] Speaker 06:
We did.

[00:43:37] Speaker 06:
In our supplemental brief, we said relaxed requirements for each challenge.

[00:43:41] Speaker 06:
That applies for two reasons as to Q. One is we have a right to pre-enforcement review under 38 USC 502, which furnishes a procedural right.

[00:43:50] Speaker 06:
And two is Q is a procedural path to benefits.

[00:43:54] Speaker 06:
Yes, it has a substantive, it matters substantively because it matters for benefits, but it's a procedural path.

[00:44:01] Speaker 06:
And so it is itself procedural as well.

[00:44:03] Speaker 06:
And there's no question that this court

[00:44:08] Speaker 06:
that there's more than just Procopio claims out there.

[00:44:11] Speaker 06:
I mean, this court's jurisdiction is to review interpretations by the VA and the Veterans Court.

[00:44:16] Speaker 04:
And so it's... Did you identify any signs of the Procopio claims?

[00:44:20] Speaker 06:
Yes, we did.

[00:44:21] Speaker 06:
So the hood declaration at paragraph five mentions Hudgens and, in fact, cites to an opinion of the board relying upon the Veterans Court's erroneous interpretations of Hudgens before this court reversed.

[00:44:35] Speaker 06:
And so those claims exist too.

[00:44:37] Speaker 06:
And I mean, there's no, as I said, this court's experience, this court's jurisdiction is to review erroneous interpretations.

[00:44:45] Speaker 06:
So it changes interpretations all the time.

[00:44:47] Speaker 06:
These things exist.

[00:44:49] Speaker 06:
And as a, you know, veterans deserve to be able to pursue the Q path.

[00:44:54] Speaker 06:
The Blue Water Navy Act doesn't require Procopio veterans to

[00:44:58] Speaker 06:
file supplemental claims, but even putting them aside, the Blue Water Act doesn't exist.

[00:45:04] Speaker 07:
Doesn't the Blue Water Act specify how you get your effective date for a Blue Water claim?

[00:45:13] Speaker 06:
All it says is that if you file a claim, it doesn't say what type of claim.

[00:45:16] Speaker 06:
It could be a Q claim, a supplemental claim.

[00:45:18] Speaker 06:
It just says claim.

[00:45:19] Speaker 06:
It says nothing about supplemental claims.

[00:45:21] Speaker 07:
It says effective date of award.

[00:45:23] Speaker 07:
The date of award shall be determined in accordance with Section 5-110.

[00:45:30] Speaker 07:
Exactly.

[00:45:32] Speaker 07:
And 5-1-1-0 points you to a supplemental claim, doesn't it?

[00:45:38] Speaker 07:
No, it does not.

[00:45:39] Speaker 07:
It covers... 5-1-1-0 doesn't point you to a Q claim.

[00:45:43] Speaker 06:
Right, but that's because we're basing these claims on Procopio.

[00:45:47] Speaker 06:
The Blue Water Navy Act sets up geographical points.

[00:45:51] Speaker 06:
It actually is not entirely commensurate with the Procopio holding, so this is a different

[00:46:00] Speaker 07:
And again, it's not mandating... Procopio claim is broader than the statutory claim?

[00:46:10] Speaker 06:
I'm just saying you can bring a claim under either the statute or the Procopio change in interpretation.

[00:46:17] Speaker 06:
But even putting that aside, all 5110 speaks to is that the effect... But the Blue Water Act

[00:46:25] Speaker 07:
basically preserved the original filing date for a Blue Water claimant who files a supplemental claim.

[00:46:34] Speaker 07:
I understand that's a guaranteed securing of the original filing date, whereas if you go after Q, you might get the filing date, but if you lose your Q, you don't get it.

[00:46:47] Speaker 07:
So if you lost your Q, you're going to lose your entire claim, right?

[00:46:51] Speaker 06:
No, I don't agree.

[00:46:52] Speaker 06:
I think the Blue Water Navy Act would

[00:46:55] Speaker 06:
I believe the Blue Water Navy Act would allow you to file a supplemental claim afterwards based on the Blue Water Navy Act.

[00:47:05] Speaker 06:
But again, I want to be clear about the effective date point.

[00:47:08] Speaker 06:
All it's talking about is effective date, not how you're required to file your claim.

[00:47:13] Speaker 06:
We know that Hodge and Hammond want to pursue two claims there.

[00:47:17] Speaker 06:
trying to pursue Q claims, and the Blue Water Navy Act doesn't exist for most veterans.

[00:47:23] Speaker 06:
This is a special circumstance, even if you accept your version of what it does.

[00:47:28] Speaker 06:
I mean, every other veteran out there, this is the exception that proves the rule.

[00:47:32] Speaker 06:
They're not going to get the benefit of the better effective data, and this needs to be fixed now.

[00:47:39] Speaker 01:
If I can just briefly address... We're out of time, but I did want to let Judge Chen... Do you have any questions, Judge Chen?

[00:47:46] Speaker 01:
Uh, no, I'm okay.

[00:47:47] Speaker 01:
Thank you.

[00:47:49] Speaker 01:
Okay.

[00:47:49] Speaker 01:
If you can, uh, briefly conclude, Mr. Manos.

[00:47:55] Speaker 06:
Sure.

[00:47:56] Speaker 06:
Uh, thank you, Judge Raina.

[00:47:57] Speaker 06:
Um, so on the merits, we should win on the case law, the regulation and the statute on the, on the Q claim.

[00:48:03] Speaker 06:
On the fees, I just want to point out, I mean, this is the plain text of the statute and to address Judge Chen's point, I mean, um,

[00:48:13] Speaker 06:
about the case law.

[00:48:14] Speaker 06:
I agree wholeheartedly.

[00:48:15] Speaker 06:
I don't think I have to read any farther than this quote from Carpenter.

[00:48:18] Speaker 06:
A veteran's claim based on a specified disability does not become a different case at each stage of the often lengthy and complex proceedings, including remands as well as reopening.

[00:48:28] Speaker 06:
There's no doubt on the statutory text, the purpose of the AMA or this court's case law that these should be allowed.

[00:48:35] Speaker 06:
And as for the docket switching bar, Ms.

[00:48:37] Speaker 06:
Bay didn't engage with the fact that the time bar already provides, already guards against the inefficiencies she was

[00:48:43] Speaker 06:
who's mentioning, which as Judge Clevenser pointed out, aren't in the final rule of mention.

[00:48:48] Speaker 06:
But we're not challenging the time bar, so the VA needs to grapple with that problem separately.

[00:48:52] Speaker 06:
Thank you, Your Honors.

[00:48:54] Speaker 01:
Okay.

[00:48:56] Speaker 01:
We thank the counsel for the arguments.

[00:48:59] Speaker 01:
This case is now taken into submission.