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

[00:00:01] Speaker 05:
The next argued case is number 20, 1305, Monk against Wilkie.

[00:00:06] Speaker 05:
Ms.

[00:00:06] Speaker 05:
Needham, please proceed.

[00:00:08] Speaker 00:
Good morning, Your Honors.

[00:00:09] Speaker 00:
Madison Needham, law student intern, appearing on behalf of Appellants.

[00:00:14] Speaker 00:
Before I begin, I would first like to acknowledge Mr. Monk, who is on the line today.

[00:00:20] Speaker 00:
Mr. Dalsman is beginning his seventh year of waiting on the VA to decide his claim.

[00:00:25] Speaker 00:
That is too long under any legal standard.

[00:00:29] Speaker 00:
Martin directed the CABC to make it possible for veterans to challenge VA delay under track.

[00:00:35] Speaker 05:
Let's be clear about what is still being delayed.

[00:00:40] Speaker 05:
There have been over this period a number of decisions.

[00:00:45] Speaker 05:
Is that right?

[00:00:45] Speaker 05:
What is left to be decided?

[00:00:48] Speaker 00:
Mr. Dolphin's TDIU effective date determination is still sitting before the board.

[00:00:54] Speaker 00:
That concerns at what point he should have started receiving TDIU benefits and it totals to about $60,000 in a retroactive payment which has not been decided.

[00:01:06] Speaker 05:
That's the remaining issue, is that correct?

[00:01:10] Speaker 00:
That is the remaining issue for Mr. Dolphin, yes.

[00:01:16] Speaker 02:
And Mr. Dolphin did receive a board decision earlier this year at the beginning of the year, correct?

[00:01:23] Speaker 00:
Mr. Dalton received a partial decision on some of his appealed benefits, but I will direct this court's attention to its recent decision in moat, where it was stated that a remand, which is not a complete decision, is not enough to end the inquiry of delay.

[00:01:42] Speaker 00:
Mr. Dalton received a remand on several of his claims, which have since been cited, but others remain undecided at the RO level.

[00:01:54] Speaker 02:
I'm confused.

[00:01:55] Speaker 02:
Are you saying the board didn't do anything on any of the merits in the Dolphin case at the beginning of the year?

[00:02:04] Speaker 00:
At the beginning of the year, the board made an adjudication on some of Mr. Dolphin's claims and remanded others.

[00:02:11] Speaker 00:
But as recognized, a remand is not a decision.

[00:02:14] Speaker 00:
And so... Right.

[00:02:16] Speaker 02:
But a decision is a decision, right?

[00:02:19] Speaker 02:
I mean, you're saying it remanded on some things, but it actually

[00:02:22] Speaker 02:
addressed on the merits and other things.

[00:02:25] Speaker 02:
I mean, this was a really complicated case, and I just want to make clear that it did issue a decision on the merits of some of the issues before it.

[00:02:38] Speaker 02:
Is that fair to say?

[00:02:41] Speaker 00:
Mr. Dalton received a resolution on some of the claims that were before the board, but it still amounted to ultimately $60,000 that he has now been waiting more than six years

[00:02:51] Speaker 00:
to receive.

[00:02:53] Speaker 00:
He was entitled to a proper and full decision on his benefits when he appealed them in 2014, when he went to the board and he said, here are, you know, I've been hurt, I'm in need of assistance, here's my information.

[00:03:06] Speaker 05:
I thought you told us the only remaining question was the effective date and that the benefits have all been resolved, as I understand it, in Mr. Dolphin's favor.

[00:03:18] Speaker 05:
The only question is whether the effective date that was selected by the board is correct or whether it should be earlier.

[00:03:28] Speaker 05:
Is that correct or not?

[00:03:30] Speaker 00:
The effective date issue for the TDIU claim is still before the board for Mr. Dolphin.

[00:03:37] Speaker 00:
But I would like to demonstrate that even if all of Mr. Dolphin's claims were resolved tomorrow... That's right.

[00:03:44] Speaker 05:
The question is, were they all resolved?

[00:03:47] Speaker 05:
And the thing...

[00:03:48] Speaker 05:
that they were all resolved.

[00:03:51] Speaker 05:
Is that correct or not?

[00:03:53] Speaker 00:
That all of the claims except for the TDIU effective date were resolved?

[00:03:58] Speaker 00:
No.

[00:03:58] Speaker 00:
Mr. Dolphin had a remand on the determination for other service connection injuries, I believe including an injury to his knee and his arm from the board.

[00:04:08] Speaker 04:
Well, Counsel, why do we have a final judgment here if there's still an unresolved claim?

[00:04:15] Speaker 00:
On the TDIU determination?

[00:04:17] Speaker 04:
Yes.

[00:04:20] Speaker 00:
It is unclear why the TDIU determination was not included in the board decision earlier this year.

[00:04:26] Speaker 04:
Well, whatever the reason is, if there's an unresolved claim, we don't have a final judgment.

[00:04:32] Speaker 04:
And why do we have jurisdiction?

[00:04:36] Speaker 00:
What we are appealing here is we're talking about the CEDC's interpretation of track to Mr. Dolphin's total delay.

[00:04:44] Speaker 00:
So a delay claim becomes right.

[00:04:46] Speaker 00:
And we have that kind of final decision, final agency action, when it simply becomes too long.

[00:04:52] Speaker 00:
Otherwise, you couldn't possibly challenge delay in court.

[00:04:55] Speaker 00:
So what we're saying here is the CAVC did not properly interpret track in order to assess that long period of delay that it took for Mr. Dalton to properly get his full decision, as well as the other appellants.

[00:05:06] Speaker 00:
And I would like to point out that the CAVC makes three principal legal errors in its interpretation of track.

[00:05:13] Speaker 00:
First, it recreated Costanza's rejected refusal to act test because it required Mr. Dolphin to demonstrate that there was no action whatsoever on the part of the VA.

[00:05:22] Speaker 00:
When truly TRAC confirms the total length of delay, not whether the agency has taken any action, moving through a case and, you know, resolving taking some steps which they're statutorily required to take does not actually mean that they are necessarily going to resolve it in a timely manner of time, which is what TRAC is supposed to assess.

[00:05:43] Speaker 00:
Second.

[00:05:44] Speaker 04:
Council, the seal with respect to Hudson, Obie, and Monk are moot, is that correct?

[00:05:54] Speaker 00:
Mr. Hudson and Mr. Monk actually still, they have claims currently pending before the board under this court's recent decision in moot.

[00:06:03] Speaker 00:
Mr. Hudson received a remand for further fact adjudication, which is now again before the board.

[00:06:10] Speaker 00:
But even if all of the appellant's claims were resolved, we stand on our arguments in our briefing that the exceptions to mootness apply and that this court would be empowered to review the CAVC's interpretation of TRAC so that... So we have to decide the mootness issue.

[00:06:30] Speaker 00:
The government has conceded mootness as to Mr. Dolphin's claim and we contend that the mootness factors still apply to those who have had their decisions fully resolved.

[00:06:46] Speaker 05:
I thought that you as the opponent agreed that the only remaining claim of this group was that of Mr. Dolphin and that none of the others were before us.

[00:06:57] Speaker 05:
Isn't that what you have been telling us?

[00:07:01] Speaker 00:
We would like to, because the government has conceded mootness in Mr. Dolphin's case, we would like to focus on that aspect of the case.

[00:07:13] Speaker 04:
You say the government has conceded mootness in Dolphin.

[00:07:17] Speaker 04:
I thought Dolphin was the only live claim.

[00:07:23] Speaker 04:
The others receive benefits, right?

[00:07:27] Speaker 00:
Allow me to refer to the record shortly to explain, Your Honor, one moment.

[00:07:36] Speaker 00:
Mr. Hudson, for instance, had his case recertified again to the BVA this August, and that was

[00:07:48] Speaker 00:
the result of a remand from the board.

[00:07:50] Speaker 00:
And so in moat, again, we said a remand is not a decision.

[00:07:54] Speaker 00:
And so he was remanded down to the RO, appealed back up to the board level, which would mean that he would still have a pending claim.

[00:08:04] Speaker 05:
Well, that's not before us, right?

[00:08:08] Speaker 05:
That hasn't gotten to the stage of appeal to this court.

[00:08:12] Speaker 05:
Is that correct?

[00:08:14] Speaker 00:
I will leave that for rebuttal, Your Honor.

[00:08:17] Speaker 00:
I see that I only have a minute remaining, and I apologize.

[00:08:22] Speaker 05:
Is that correct?

[00:08:25] Speaker 00:
One moment, Your Honor.

[00:08:32] Speaker 00:
We represent all of the appellants in this case, and all of the appellants in this case are before you.

[00:08:40] Speaker 00:
You do not accept that they have a live claim, then we stand on the exceptions to mootness outlined in our briefing.

[00:08:47] Speaker 00:
But what is really important to note that this is a case about delay and about mandamus.

[00:08:53] Speaker 00:
We are not asking you to review the individual factual determinations of each appellant.

[00:08:58] Speaker 00:
Rather, what we ask you to recognize is that six years that Mr. Dolphin has waited and the incredible amount of delay that the appellants have

[00:09:09] Speaker 00:
suffered is simply too long, and that the CAVC, by misinterpreting track, has continuously prevented veterans from being able to pass.

[00:09:23] Speaker 05:
These are a lot of parents who have declined to participate in the new system that was enacted by Congress and that are staying under the so-called legacy system, and we're really trying to understand what's left

[00:09:38] Speaker 05:
Based on that choice, based on your telling us in your brief that the issues are moot and have been resolved, as to everyone but Mr. Dolphin, we have the government's response and we'll ask them, agreeing that there is a single remaining issue.

[00:09:55] Speaker 05:
And I thought this was quite clear from your briefing that that was what was being presented before us.

[00:10:03] Speaker 05:
It doesn't quite fit what you're now telling us.

[00:10:08] Speaker 00:
I would like to answer your point about the AMA.

[00:10:12] Speaker 00:
These are veterans in the legacy appeal system, and while they may have at certain points been offered the opportunity to opt into the AMA, there is no obligation for a veteran to give up their place in line and engage in an untested system in order to have their appeals adjudicated in a timely fashion.

[00:10:31] Speaker 00:
The Secretary has the burden to decide these claims.

[00:10:35] Speaker 00:
in a timely fashion, and the CEDC has the burden to compel action of the secretary unreasonably delayed.

[00:10:41] Speaker 00:
What we present to you here is a case in which the CEDC misinterpreted the track factors.

[00:10:48] Speaker 00:
And we have, at least, we will give you Mr. Dolphin's case.

[00:10:52] Speaker 00:
That is something you can decide here today.

[00:10:55] Speaker 00:
I would like to reserve the rest of my time for rebuttal.

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

[00:11:00] Speaker 05:
All right, we'll hear from the government, the municipality.

[00:11:04] Speaker 03:
Thank you, Your Honor.

[00:11:05] Speaker 03:
Good morning, and may it please the Court.

[00:11:08] Speaker 03:
I'll begin with a brief discussion of the individual appellant's situation right now to try to resolve that a little bit for the Court's benefit.

[00:11:22] Speaker 05:
So do you agree?

[00:11:24] Speaker 05:
Is the government's position that all of the appellants are now before us for review?

[00:11:30] Speaker 03:
No.

[00:11:31] Speaker 03:
We take the position that among

[00:11:35] Speaker 03:
Mr. Monk, Mr. Hudson, and Ms.

[00:11:37] Speaker 03:
Obey, that their claims are moot.

[00:11:40] Speaker 03:
As Your Honor noted, the reply brief from appellants focuses, you know, a great deal now in terms of the track factors on Mr. Dolphin's claim because we did concede in our 28-J response letter that the TDIU effective date issue under Harper leaves that issue live for his appeal.

[00:12:02] Speaker 03:
But with Mr. Monk, it's important to note, and I'll just run through these quickly.

[00:12:08] Speaker 03:
He received a board decision that denied him relief.

[00:12:10] Speaker 03:
He appealed it and it was remanded from CAFSE and that's through the system now.

[00:12:19] Speaker 03:
Mr. Hudson went before the board.

[00:12:22] Speaker 03:
The first line of the board's decision is new evidence was submitted.

[00:12:29] Speaker 03:
The evidence was reviewed by the board and based on that evidence, it reviewed or remanded for further adjudication on TDIU because now there was evidence presented of unemployability as well as a benefit claim related to hypertension and so directed the regional office to take up those issues and provide a very specific directions on what needed to be done and what sort of findings needed to be made.

[00:12:57] Speaker 03:
uh... mizobi received what she was looking for which was dependent benefits she's now pursuing other unrelated uh... benefits uh... within the system so in for each of those three appellants they received what they're complaining about what they want the court to order uh... VA to do which is a decision to order the board to do they got a decision uh... the fact that some of them are are remands i don't think the analogy of moat

[00:13:27] Speaker 03:
works at all here, because when you look at the cases that are remanded, which would be specifically Hudson, Monk's remand was from CAFC, it wasn't from the board, but Mr. Hudson's case, is based on new evidence and a remand to develop the issues that the board acknowledged were brought up there.

[00:13:49] Speaker 03:
And that's one of the things running through this case here.

[00:13:53] Speaker 03:
that I don't think appellants ever deal with well in their briefing is that we're dealing with an open system here.

[00:14:00] Speaker 03:
This court's jurisprudence documents very well both the problems with the legacy system, which are well known and have been discussed in many contexts and are talked about very frankly in our brief.

[00:14:17] Speaker 03:
And also the features of that system that tend to inform those problems in terms of delay, that the open system, the opportunity to present new evidence, the fact that claims can move up and down the ladder as evidence brings up new issues that need to be reviewed.

[00:14:34] Speaker 03:
More medical exams need to be taken.

[00:14:36] Speaker 03:
When you look at Mr. Dolphin's case in particular, you can see that writ large.

[00:14:41] Speaker 03:
The 17 individual issues,

[00:14:44] Speaker 03:
The claim has moved up and down through the various mechanisms that are to the veteran's benefit within the legacy system to make sure that everything is adjudicated, that where medical exams need to be done, they are done.

[00:14:58] Speaker 03:
His record indicates numerous, at one point I think it was 10 medical exams scheduled in a certain time period.

[00:15:08] Speaker 03:
The result of that is you move through the timeline.

[00:15:10] Speaker 03:
They speak in their reply brief.

[00:15:12] Speaker 03:
They always try to cut it down to five years, five years, but that's the delay and that's what's unreasonable here.

[00:15:18] Speaker 03:
And when you look at Mr. Dolphin, and I think this was alluded to in some of your honors statements during Appellant's initial argument, there's activity throughout those years.

[00:15:30] Speaker 03:
And that's not just activity, sort of ministerial activity, moving the thing along.

[00:15:36] Speaker 03:
It's activity that's resulting in benefits, right?

[00:15:40] Speaker 03:
Along the way, Mr. Dolphin is receiving disability benefits.

[00:15:45] Speaker 03:
It goes from 90% for six disabilities in 2014 and moves up to 100% with SMC in 2015.

[00:15:54] Speaker 03:
More exams are scheduled.

[00:15:55] Speaker 03:
He gets more rating decisions for other individual benefits.

[00:15:59] Speaker 03:
He gets TDIU granted in 2018.

[00:16:03] Speaker 03:
And so what's going on now in his claim is there are other disabilities that he's raised.

[00:16:12] Speaker 03:
Those are being developed.

[00:16:13] Speaker 03:
It's not, he's already on 100% with SNC, but he wants higher individual ratings for certain disabilities.

[00:16:21] Speaker 03:
And the effective date of the TDIU, and the Appellant's Council described that.

[00:16:27] Speaker 03:
So I think, you know, on this question, two points.

[00:16:32] Speaker 03:
Mr. Dolphin is the only claimant whose claim is not moot because of the way Harper treats TDIU, and we do concede that.

[00:16:43] Speaker 03:
But when you then move to the analysis of the extraordinary relief of mandamus and you look at the facts of Mr. Dolphin's claim and run those through the appropriate analysis, the track factors,

[00:17:00] Speaker 03:
The Court of Appeals for Veterans Claims there, its application of the facts to those standards, those legal standards, was exemplary.

[00:17:12] Speaker 03:
It balanced.

[00:17:14] Speaker 03:
It looked at the issues from Mr. Dolphin's perspective, the delay.

[00:17:19] Speaker 03:
It used its expertise, meaning the court's expertise with the veteran system.

[00:17:24] Speaker 03:
to describe and apply to this balancing review, the specific components of the veteran system important within that system.

[00:17:35] Speaker 03:
And I think it comes up that the court starts to consider the effect of remand on some of these other appellants like Mr. Hudson, but also Mr. Dolphin.

[00:17:44] Speaker 03:
You know, remand moves, you're not, to say that these claimants are in the same system because they've been remanded is not correct.

[00:17:53] Speaker 03:
they are in a different iteration now of the legacy.

[00:17:56] Speaker 03:
They're not still within the legacy system that brought about their delay claim as they describe it, because once remanded under the regulations, they effectively move up in line.

[00:18:08] Speaker 03:
There are specific things designed to expedite the adjudication process, the development of evidence, and they retain their position on the docket, which by necessity, since they were already at the front of the line, moves them up in line.

[00:18:22] Speaker 03:
to get a decision.

[00:18:23] Speaker 03:
And we can see that actually with Mr. Hudson because his remanded claim now, my understanding is already the statement of the case is done and it's back before the board.

[00:18:38] Speaker 02:
Yes.

[00:18:40] Speaker 02:
I'm sorry, Judge Laurie, go ahead.

[00:18:43] Speaker 04:
Thank you, Judge Chen.

[00:18:45] Speaker 04:
Mr. Pelkey, what do you want us to do here?

[00:18:48] Speaker 04:
Do you want us to

[00:18:51] Speaker 04:
affirm the denial of mandamus with respect to three people for reasons of mootness, and then with respect to the fourth, Mr. Dolphin, by getting into the merits and determining that the delays were not unreasonable.

[00:19:13] Speaker 04:
Essentially, what would you like us to do?

[00:19:15] Speaker 03:
Well, Your Honor,

[00:19:17] Speaker 03:
First, we would like the court to consider its jurisdiction here, given that we've taken the position, and there's case law in the circuit about this, that the legal standards here are properly stated.

[00:19:31] Speaker 03:
This isn't like Martin, where there was a dispute between Costanza and whether or not it should be applied, and ultimately deciding on track.

[00:19:40] Speaker 03:
The standard is well-known.

[00:19:42] Speaker 03:
There's cases we saw in our brief where if you're just looking at how the Court of Appeals for Veterans Claims apply the facts of the mootment standards, that's not something that falls within this court's hand, but jurisdictionally speaking.

[00:19:54] Speaker 03:
So we think the court should take a hard look at whether or not there are, in fact, non-frivolous legal issues raised in the... Well, you've agreed, at least as far as Mr. Daphne is concerned, that there's an outstanding issue.

[00:20:10] Speaker 05:
So let's use your few moments to really get to the heart of Judge Lurie's question as to what kinds of relief might be available.

[00:20:25] Speaker 05:
Mr. Delphin has been in the system for a long time.

[00:20:28] Speaker 05:
There is at least this one remaining question of effective date.

[00:20:35] Speaker 05:
Where does that leave us in terms of this request for mandamus?

[00:20:40] Speaker 03:
Yes, your honor.

[00:20:41] Speaker 03:
Thank you.

[00:20:41] Speaker 03:
And Mr. Dolphin, I would say that the court is clearly the individual closest to moving forward jurisdictionally.

[00:20:51] Speaker 03:
And if the court reaches a conclusion, first, I won't waste time on going through all the reasons why we think mandamus does not apply to Mr. Dolphin, because the question is directed at what should this court do.

[00:21:03] Speaker 03:
I think that

[00:21:05] Speaker 03:
The court's jurisprudence on mandamus discusses how this mandamus is something within a court's discretion and we're talking about the Court of Appeals for Veterans Claims discretion.

[00:21:15] Speaker 03:
How does it want to frame the relief?

[00:21:17] Speaker 05:
Well, tell us how you say it doesn't apply.

[00:21:23] Speaker 05:
uh... i'm sorry i don't know how which doesn't look like you've heard that mandamus doesn't apply to mrs delphins this reaches us in mandamus question and you uh... phrase your response and saying that well mandamus doesn't apply that's the question before is it not oh no i'm sorry your honor i may have if i uh... if i misspoke i was not trying to to argue that mandamus uh...

[00:21:51] Speaker 03:
doesn't apply, simply that what I'm not going to spend time in is our analysis of why the track factors, at least in this response to this question, why the track factors were properly reviewed and the facts were properly applied to it by the Court of Appeals for Veterans Claims to Mr. Dolphin's request for mandamus.

[00:22:12] Speaker 03:
And so, should I or should affirm Court of Appeals for Veterans Claims

[00:22:18] Speaker 03:
decision that it he has not met uh... mr dole has not met his burden to establish a basis for mandamus i was going to address what the court should do if it thinks that he has met the track factors and then what what manner of relief uh... should it fashion it if that i may have misheard the question i don't know about that really well that's the ultimate question before it would be very interested in your answer certainly right

[00:22:47] Speaker 03:
I think that as I was saying that the court has in the past discussed the need to be circumspect and remand things to the Court of Appeals for Veterans Claims with instruction to decide what the appropriate relief is.

[00:23:04] Speaker 03:
And when you look at the general mandamus factors under Cheney, the court has to

[00:23:13] Speaker 03:
convince itself that it's appropriate and look at what's the appropriate relief.

[00:23:16] Speaker 03:
And in Martin, this court emphasized that the expertise of the Court of Appeals of Veterans Claims on these issues is a significant consideration of Amanda Amos' question.

[00:23:26] Speaker 03:
So a remand to the Court of Appeals for Veterans Claims to fashion the type of relief that's most appropriate based on the facts of Mr. Dalton's claim, which is that he is very far along in the process.

[00:23:37] Speaker 03:
with a lot of evidence, and it hasn't been much time, frankly, since he's entered this last stage.

[00:23:43] Speaker 05:
But isn't the real question accepting for the moment that the ultimate remaining question is the effective date for the final resolution

[00:23:56] Speaker 05:
in favor of Mr. Delphin of his various disabilities.

[00:24:01] Speaker 05:
He obviously had some very significant issues of disability.

[00:24:08] Speaker 05:
So what's needed to cut through all of the noise is

[00:24:13] Speaker 05:
What is the proper effective date?

[00:24:17] Speaker 05:
Now, we have a decision of the board, which he says is an error.

[00:24:23] Speaker 05:
Now, how is there any way of expediting the substantive review of this remaining question?

[00:24:32] Speaker 03:
Exactly, Your Honor.

[00:24:33] Speaker 03:
And as I was trying to lay out, I think that that's a question ultimately for the Court of Appeals of Veterans Claims, that the remand from this court would be

[00:24:42] Speaker 03:
we find as a basis for mandamus on the question of the effective date of the TDIU.

[00:24:47] Speaker 02:
And the court... Well, I guess one question is, what is the current status of that pending matter in front of the board right now?

[00:24:56] Speaker 02:
You're representing the VA.

[00:24:59] Speaker 02:
Can you give us any information about what's the current status of the effective date of the TDIU claim for Mr. Dolphin in front of the board?

[00:25:08] Speaker 03:
I mean, unfortunately, Your Honor, because of the way it came up and it wasn't discussed in the opinion, as you know from the 28-J letters, all parties missed this Harper issue that was there.

[00:25:21] Speaker 03:
So there's not a document within the record and talking to the VA, there's nothing specific that we know of going on with the TDIU effective date.

[00:25:31] Speaker 03:
It's part of what is proceeding, but in terms of specific action

[00:25:38] Speaker 03:
to it and, you know, what being able to speculate as a timetable, I simply, I can't do that sitting here right now.

[00:25:45] Speaker 02:
It is... Is it your best guess that this was just, there were a number of issues in front of the board and is it your best guess that this particular one was just overlooked by the board?

[00:25:56] Speaker 03:
You know, Judge Chen, I, in all honesty, I think that that might be the case.

[00:26:01] Speaker 03:
I think that, you know, this issue that was caught, you know, by all counsel,

[00:26:05] Speaker 03:
late.

[00:26:06] Speaker 03:
I think that because TDIU had been awarded in 2018... I'll finish my response here on record.

[00:26:14] Speaker 03:
Thank you.

[00:26:15] Speaker 03:
Because TDIU had been granted, I think that it's very possible that the board did not catch this issue that the effective date would stay with the claim.

[00:26:27] Speaker 05:
there could also be an order from the court uh... uh... conceivable but when the issue has been raised uh... now to the to the veterans court and it's now the focus of this appeal to the federal circuit and you say it's still nobody seems to know that they didn't decide the effective date well your honor in all honesty i have to say that many things are conceivable within this this complicated system and i i just don't know the answer and as i was going to say i think that

[00:26:57] Speaker 05:
Well, maybe they're entitled to mandamus in that case.

[00:27:01] Speaker 03:
Or entitled to a directive that the basis for mandamus hasn't been made, but efforts should be made or steps should be taken to ensure that the board is aware of this separate effective date issue if it's not already, something along those lines.

[00:27:20] Speaker 03:
I still don't think that the grounds for mandamus is there.

[00:27:23] Speaker 03:
It's a very recent development.

[00:27:26] Speaker 03:
And frankly, we don't know, as I don't know sitting here, what exactly its position is in the board's mind and awareness.

[00:27:35] Speaker 05:
But... Is this something that would benefit from further review and communication with the court as to where that stands?

[00:27:45] Speaker 03:
Well, Your Honor, what I can tell the court now is I will speak with VA after the argument and say, you know, let's make sure that this is on the board's radar.

[00:27:56] Speaker 05:
uh... and and raided and let them know that there was this harper issue and that that td i you've got to be it is active so that there's no question that it for the board we can certainly notify the court want to let her and i think i want to have a look at that period they've been captured include a requirement for uh... not only have a vicious response but regular reports to the congress uh... as well and with the

[00:28:24] Speaker 05:
I gather several thousands, many thousands of people by the VA to process the claims and to catch up on the legacy.

[00:28:37] Speaker 05:
But it does seem rather strange, and this isn't an impression that I particularly gathered from the briefs.

[00:28:45] Speaker 05:
But if Mr. Dolphin's particular issue has now been refocused,

[00:28:50] Speaker 05:
of the Court of Appeals for Veterans Claims and now the Federal Circuit, and it still isn't getting any attention from the VA.

[00:28:59] Speaker 05:
There are gaps here that I think would benefit from investigation.

[00:29:05] Speaker 03:
Yes, Your Honor.

[00:29:05] Speaker 03:
Well, this claim was not proceeding within the AMA.

[00:29:08] Speaker 03:
And again, I can only say that I just don't know what the status of the claim is within

[00:29:15] Speaker 03:
the confined space of the board.

[00:29:18] Speaker 05:
No, because the VA, as I understand it, told the Congress that they were giving the legacy cases expedited attention as well.

[00:29:29] Speaker 03:
Correct.

[00:29:30] Speaker 03:
When you look at the statistics that are being reported, it includes not only the AMA cases, but also breaks out the legacy cases and how those are being worked through, how the time of decision is working.

[00:29:44] Speaker 03:
are remaining, because those numbers are going down fairly quickly in terms of the numbers that are remaining in the legacy system.

[00:29:53] Speaker 05:
Okay, anything else you need to tell us?

[00:29:56] Speaker 03:
No, thank you, Your Honor.

[00:29:57] Speaker 03:
We would simply conclude by asking that the Court affirm the decision of the Court of Appeals of Veterans' Plaints.

[00:30:02] Speaker 05:
Okay, does the panel have any questions for Mr. Pelkey at this stage?

[00:30:06] Speaker 01:
No.

[00:30:07] Speaker 05:
Okay, in that case, we'll hear rebuttal from Ms.

[00:30:10] Speaker 05:
Neuner.

[00:30:12] Speaker 01:
Thank you, Your Honors, and may it please the court to answer the questions as to what petitioners are currently live before this tribunal.

[00:30:23] Speaker 01:
Mr. Dolphin, indisputably, has a live petition for mandamus.

[00:30:30] Speaker 01:
He has the TDIU effective date that remains undecided after six years.

[00:30:37] Speaker 05:
That issue hasn't been an issue until he received the positive decision on the claim, isn't that right?

[00:30:47] Speaker 05:
And then the question is to when the various formalities have been met for effective date.

[00:30:54] Speaker 05:
Is that correct?

[00:30:55] Speaker 05:
You're telling us that the effective date issue is also six years old?

[00:31:00] Speaker 01:
Respectfully, yes, Your Honor, the TDIU has been part of his petition, and therefore the correct effective date is an integral part of his petition and appeal.

[00:31:12] Speaker 01:
So this is part and parcel of Mr. Dolphin's appeal, starting back with the NOD, which was filed literally six years ago, October 31 of 2014.

[00:31:28] Speaker 01:
If I may, I'll just outline the overview and then we can dip into this.

[00:31:33] Speaker 01:
The overview is that Mr. Dolphin has a live case and the other three petitioners, Ms.

[00:31:41] Speaker 01:
Obie, Mr. Monk, and Mr. Hudson have received decisions and have made claims, arguments that are still part of this briefing that they fit the exceptions to mootness

[00:31:57] Speaker 01:
And our legal argument is that the Veterans Court misconstrued the track factors for Mr. Dolphin.

[00:32:07] Speaker 01:
That's the legal issue that needs to be decided.

[00:32:10] Speaker 01:
They failed to decide his constitutional claim over which you have complete de novo review on law and facts.

[00:32:18] Speaker 01:
And they misconstrued the mootness exceptions for the three other petitioners

[00:32:24] Speaker 01:
as to which you also have the legal capacity to review.

[00:32:29] Speaker 01:
We ourselves are focused on Mr. Dolphin because the Veterans Administration concedes that his petition is not moot.

[00:32:42] Speaker 01:
And Judge Laurie, that is what my co-counsel was saying, the Veterans

[00:32:48] Speaker 01:
administration concedes that Mr. Dolphin has a live petition, which means we should be looking at the mandamus factors and the track factors and how they interact.

[00:33:01] Speaker 01:
And under the mandamus factors, the three training factors, we believe that there is no other relief but to come to this court at this point and ask you to order that the

[00:33:16] Speaker 01:
decision be rendered for him in a timely manner.

[00:33:19] Speaker 01:
As you have all just discovered with your colloquy with Mr. Pelkey, and I commend him for his candor, there is no idea as to when Mr. Dalton is going to get an actual decision on the remaining benefit question.

[00:33:35] Speaker 01:
After six years, that's a shame.

[00:33:38] Speaker 01:
And beyond that, it's unconstitutional and statutorily unreasonable.

[00:33:43] Speaker 01:
We now hear that they may have overlooked the issue.

[00:33:46] Speaker 01:
Well, they need to fix that pronto.

[00:33:49] Speaker 01:
That should be a mandamus to fix Mr. Dolphin's TDIU benefit within the next 30 days.

[00:33:56] Speaker 01:
They've already conceded his effective date is November 9, 2009.

[00:34:01] Speaker 01:
So we've already established through the Veterans Organization that the man is entitled to these benefits going back to November 2009, but yet he's sitting here

[00:34:12] Speaker 01:
in November, having received a decision in February that was totally mystifying as to whether all of his different claims were being considered.

[00:34:22] Speaker 01:
And it took sleuthing work by Yale Law School to figure out that the man was shortchanged by $60,000.

[00:34:29] Speaker 01:
If he didn't have counsel, this never would have come to light.

[00:34:33] Speaker 01:
And it's wrong for the Veterans Administration not to say, you know what, since Martin, there's only been one

[00:34:41] Speaker 01:
mandamus petition granted.

[00:34:43] Speaker 01:
That was, God see, and it was a subunit of the appeals process, as you know, through a class action.

[00:34:49] Speaker 01:
But if anyone in the whole system has a bona fide right to a mandamus petition at this point in time, it is Mr. Dalton.

[00:34:59] Speaker 01:
And they should truly just say, we have failed him.

[00:35:05] Speaker 01:
The system is broken.

[00:35:06] Speaker 01:
They admit that.

[00:35:07] Speaker 01:
Again, I commend Mr. Pelsey for that straightforward admission.

[00:35:11] Speaker 01:
But we're here now.

[00:35:13] Speaker 01:
I see my time has come to a close.

[00:35:15] Speaker 01:
I'll finish up briefly.

[00:35:16] Speaker 01:
We're here now because the VA has admitted that Mr. Dolphin still has not received the full decision, meaning the grant or denial of benefits.

[00:35:25] Speaker 01:
We know it's a grant of benefits.

[00:35:28] Speaker 01:
I urge you, I urge you to issue the decision saying that Mr. Dolphin is entitled to a mandamus that six years is too long.

[00:35:38] Speaker 05:
for him to get a final decision on the benefits he is owed as a result of his service to this country.