[00:00:00] Speaker 01:
Call case number 192367, Moat versus Wilkie.

[00:00:05] Speaker 01:
Mr. McCloud, whenever you're ready to proceed.

[00:00:08] Speaker 00:
Thank you, Your Honor, and may it please the court.

[00:00:10] Speaker 00:
I have the privilege of representing Mrs. Eugenia Moat.

[00:00:14] Speaker 00:
Mrs. Moat is the surviving spouse of Wayne Moat, a Vietnam veteran who served his country in the Air Force.

[00:00:20] Speaker 00:
It's been nearly 10 years since Mr. Moat first sought disability benefits from the VA, and Mrs. Moat is carrying on his struggle.

[00:00:28] Speaker 00:
Two years ago in the Martin case brought by Mrs. Moat and others, this court established a new standard for determining whether delays like those Mrs. Moat has endured violate the law.

[00:00:39] Speaker 00:
As such, more noted in her concurring opinion, under the new Martin standard, veterans should have a much easier time obtaining mandamus.

[00:00:46] Speaker 00:
But on remand, the CABC not only denied Mrs. Moat's petition, it failed to apply the Martin framework at all.

[00:00:53] Speaker 00:
Mrs. Mote deserves more than the same we're-working-on-it excuse that the VA has used for years before Martin.

[00:00:59] Speaker 00:
This court should make clear that it meant what it said in Martin and reverse the judgment of the CABC.

[00:01:05] Speaker 01:
Your Honor... Mr. McCloud, can I just interrupt you to ask you, because what's a little confusing, or maybe unusual, maybe not unusual to me, is the fact that we've only almost got kind of parallel proceedings, and that's certainly understandable, that you or your co-counsel are representing Ms.

[00:01:23] Speaker 01:
Mote

[00:01:23] Speaker 01:
and there are proceedings sort of ongoing now before the RO.

[00:01:30] Speaker 01:
So I guess I'd just like you to comment on that.

[00:01:33] Speaker 01:
I mean, that makes it a little difficult.

[00:01:35] Speaker 01:
You're asking us or you're asking under the mandamus petition to have the board issue an opinion within a period of time.

[00:01:45] Speaker 01:
Does that preclude a remand or is that any way affected by the fact that

[00:01:51] Speaker 01:
council before the RO seemed to suggest that there was a failure of duty to assist and therefore a further inquiry was necessary?

[00:02:01] Speaker 00:
A couple of responses on that point, Your Honor.

[00:02:02] Speaker 00:
First, just on the last point you mentioned about the request for further development, I think if you read the January 14, 2020 letter that I believe Your Honor is referring to,

[00:02:13] Speaker 00:
The bulk of the letter is devoted to explaining why Mrs. Shote is entitled to release on the current record.

[00:02:20] Speaker 00:
So I don't necessarily agree that there was an explicit request for further development.

[00:02:25] Speaker 00:
To more directly address your question about whether the parallel proceedings and the activities going on at the RO level are relevant, I agree that those are factors that could be considered in the Martin analysis.

[00:02:39] Speaker 00:
But the fundamental point of Martin and the reason this court in Martin rejected the Costanza standard that the CAVC had been using was that at some point enough is enough.

[00:02:49] Speaker 00:
And even if the secretary is working on a case or taking steps to move a case forward, there comes a point in time when the delay that a veteran or their spouse or family member has experienced is so significant that mandamus is warranted.

[00:03:03] Speaker 00:
And I would submit that Mrs. Moat has reached that point.

[00:03:06] Speaker 00:
We're talking about

[00:03:07] Speaker 00:
nearly seven years since the beginning of this appeal, and although I will grant that the Secretary has taken some steps to resolve the case, we believe she's at the point where she is entitled to release on her mandamus petition, and that is either... Let me ask you about that relief.

[00:03:25] Speaker 01:
I'm sorry to interrupt, but maybe you were going there, but does that relief necessarily preclude a remand at all?

[00:03:31] Speaker 01:
exclusively a decision within a specific period of time by the board, or is it broader?

[00:03:39] Speaker 00:
No, Your Honor.

[00:03:40] Speaker 00:
I don't think that the release we've requested excludes the possibility of a remand.

[00:03:44] Speaker 00:
So, for example, the CAVC could have given the VA a certain amount of time in which to conduct the remands and then direct a reasoned decision issue after some amount of time following the conclusion of the remand proceeding.

[00:04:01] Speaker 00:
The CAVC also could have granted Mrs. Mote's separate request for some kind of judicial oversight.

[00:04:08] Speaker 00:
The request in the petition was for a status report from the VA every 30 days until a reasoned decision issued.

[00:04:15] Speaker 00:
And we know from the course of this litigation that that sort of judicial oversight can be critical in prompting action from the VA.

[00:04:22] Speaker 00:
The only reason in this case that Mrs. Mote, after three years of waiting, was scheduled for a travel board hearing is because

[00:04:29] Speaker 00:
the CAVC asked the secretary to provide an update on Mrs. Moat's case, the status of the case.

[00:04:35] Speaker 00:
On the same day that that status update was provided, the VA scheduled the hearing.

[00:04:40] Speaker 00:
So that relief is really critical to getting Mrs. Moat to the conclusion of her case after so many years.

[00:04:49] Speaker 01:
Let me ask you, let me bring you back to where I think you were going to start, which was whether or not the CAVC conducted an appropriate inquiry with respect to the track factor.

[00:04:59] Speaker 01:
And I can ask the government about this because I'm a little unclear on their position, which is they didn't have to because the CAVC found this moot because of the hearing and premature because of the other stuff, or whether they did provide a substantial analysis of the tract factors.

[00:05:20] Speaker 01:
So what is the understanding of what their position is?

[00:05:24] Speaker 00:
My understanding of the government's position is both of the points that you alluded to, Your Honor.

[00:05:29] Speaker 00:
The government first argues that the case is moot because of, at the time, the scheduling of the hearing.

[00:05:36] Speaker 00:
They have now changed their position to the holding of the hearing, moots Mrs. Moot's claim.

[00:05:40] Speaker 00:
But they are also arguing that the analysis that the CAVC performed was sufficient on its own, even in light of Martin.

[00:05:48] Speaker 00:
And I would respectfully submit that the government is wrong about both of those points.

[00:05:52] Speaker 00:
And I'll start with the mootness argument.

[00:05:54] Speaker 00:
Mrs. Mote's case is not moot because she has not received the relief she requested.

[00:05:58] Speaker 00:
As I had mentioned earlier, Mrs. Mote requested a reasoned decision from the VA, that is a decision granting or denying her benefits claim.

[00:06:06] Speaker 00:
She also requested judicial oversight in the form of a court order compelling the secretary to provide updates on the status of the case every 30 days until the reasoned decision issued.

[00:06:17] Speaker 00:
Mrs. Mote did not receive any of those things.

[00:06:20] Speaker 00:
All that she got was an order

[00:06:22] Speaker 00:
From the BVA remanding for additional proceedings to collect additional evidence.

[00:06:28] Speaker 00:
Now, we would submit that those remand proceedings really were not necessary because the evidence in the record is more than sufficient to grant service connection.

[00:06:36] Speaker 00:
But setting that aside, the fact that Mrs. Moat got that remand order does not change the fact that she did not receive a reasoned decision.

[00:06:45] Speaker 00:
And in fact, the secretary concedes in footnote five of his brief that a remand order like the one Mrs. Moat got

[00:06:51] Speaker 00:
is not even a sufficient moment to qualify as a decision that would be reviewable by the CABC or this court.

[00:06:57] Speaker 00:
So the suggestion that after seven years of waiting, Mrs. Moat has somehow gotten everything she needs, I would submit is just simply incorrect.

[00:07:07] Speaker 00:
On the question about the Martin analysis, I think it's clear that if you look at what the CABC did, it certainly alluded to the existence of the track factors, but there's no real analysis of any of those factors.

[00:07:21] Speaker 00:
The emphasis of the CAVC was on the fact that the hearing had been scheduled.

[00:07:26] Speaker 00:
And there's the sort of odd, I would submit, suggestion that the mere scheduling of the hearing somehow both moots the case and makes it unripe and premature.

[00:07:35] Speaker 00:
And again, I don't think that that's correct.

[00:07:37] Speaker 00:
That standard resembles nothing more than the Costanza standard that this court in Martin made clear was inappropriate to apply.

[00:07:46] Speaker 02:
How did you, you mentioned that

[00:07:47] Speaker 01:
You mentioned the sentence that is puzzling to me in the CAVC opinion, where they say the mootness for the hearing again, but then they say with respect to her writ itself, they say her writ concerning her claims is premature.

[00:08:05] Speaker 01:
How do you understand that to mean?

[00:08:09] Speaker 01:
You understand it, the CAVC meant, that she has to wait until she has a hearing,

[00:08:17] Speaker 01:
and for the entire proceeding to be concluded to make the writ right?

[00:08:24] Speaker 00:
Your Honor, I do have difficulty understanding that sentence, but I think what you're suggesting is probably the best interpretation of it, that the CAVC is saying Mrs. Moat has to wait until the Secretary is done with everything relating to the hearing, and then at that point she could file a separate writ and start the appeal proceedings for her writ.

[00:08:46] Speaker 00:
all over again.

[00:08:47] Speaker 00:
And I don't think that's correct.

[00:08:49] Speaker 00:
If you look at the delay that Mrs. Moat has experienced, even at the point where we were before the CAVC, that delay is significantly longer than delays other courts have found to be unreasonable in similar circumstances.

[00:09:05] Speaker 00:
And so I think the court can look at the entire delay that Mrs. Moat has experienced and, applying the Martin analysis, conclude that the delay has been unreasonable and she is entitled to maintain this.

[00:09:19] Speaker 00:
And your honor, I'm happy to go through each of the Martin factors one by one, if the court is interested.

[00:09:25] Speaker 00:
I do think that the majority of the dispute between the parties on Martin is over the application of the first Martin factor, which asks whether the time that it takes to make a decision is governed by a rule of reason.

[00:09:37] Speaker 00:
And there again, the focus of the CABC's decision was on the fact that there had been a request for a hearing

[00:09:44] Speaker 00:
and that that had added to the proceedings.

[00:09:46] Speaker 00:
And I would submit that that is an inaccurate way to apply the first Martin factor for a number of reasons.

[00:09:53] Speaker 00:
First of all, it ignores the fact that there's been no explanation for why it was reasonable in the first place to take three years to grant Mrs. Moat's request for a hearing.

[00:10:04] Speaker 00:
I understand that the secretary has suggested there are resource limitations that prevent holding hearings before the travel board as expeditiously as the secretary might want.

[00:10:14] Speaker 00:
But even granting that, again, there's no explanation in the record for why it took three years.

[00:10:19] Speaker 00:
But even if you assume that that three-year period was reasonable, we're still left with significant amounts of delay that had nothing at all to do with Mrs. Moat's request for hearing.

[00:10:30] Speaker 00:
For example, it took the secretary... Counsel, can you hear me?

[00:10:35] Speaker 03:
This is Judge Stoll.

[00:10:36] Speaker 03:
I can hear you.

[00:10:37] Speaker 03:
I just wanted to know if you could answer questions related to what you just said, which is,

[00:10:42] Speaker 03:
Do you have a sense for what the typical amount of time is that a veteran who chooses a travel hearing would have to wait?

[00:10:52] Speaker 03:
Are there statistics like that available that you're aware of?

[00:10:57] Speaker 00:
Your Honor, the statistics that I'm aware of are not specific to the travel board.

[00:11:01] Speaker 00:
They relate to the amount of time it takes for a hearing to occur in general.

[00:11:10] Speaker 00:
Those statistics, which are in the annual reports that the BVA publishes, suggest that it does take a significant amount of time.

[00:11:18] Speaker 00:
On average, I think it's more than a year.

[00:11:22] Speaker 00:
Misacres may be better positioned to answer exactly what the current statistics look like.

[00:11:27] Speaker 00:
There is also the fact that once the hearing occurs, many of those hearings result in remands, as was the case in Mrs. Moat's case.

[00:11:36] Speaker 00:
And those remands themselves add significant time.

[00:11:39] Speaker 00:
The secretary's own statistics suggest that a remand after hearing adds on average 467 days to the appeal process.

[00:11:47] Speaker 00:
And that's not even including the amount of time that it might take the BVA to issue a second decision.

[00:11:52] Speaker 00:
If you include that, it can be up to 688 days, I believe, for the total remand factor time.

[00:11:59] Speaker 00:
So all along the process, we're looking at significant delays.

[00:12:03] Speaker 00:
And as I said before, some of the delays that Mrs. Mote has experienced have nothing to do with the hearing request.

[00:12:09] Speaker 00:
The issuance of the statement of the case in this case took three years and three months, which is more than double the amount of time that it normally takes the secretary to complete that step of the process.

[00:12:21] Speaker 00:
So from the very outset, Mrs. Mote's appeal has been delayed.

[00:12:25] Speaker 00:
I heard that buzzer go off.

[00:12:27] Speaker 00:
The court doesn't have any further questions.

[00:12:29] Speaker 00:
I'll reserve the balance of my time.

[00:12:32] Speaker 01:
Hearing none, thank you.

[00:12:34] Speaker 01:
Let's hear from Ms.

[00:12:35] Speaker 01:
Akers.

[00:12:38] Speaker 04:
Thank you, Your Honor.

[00:12:39] Speaker 04:
Good morning.

[00:12:40] Speaker 04:
May it please the court?

[00:12:41] Speaker 04:
I'll begin by addressing the issue of mootness.

[00:12:45] Speaker 04:
In the time since the Veterans Court issued its decision denying Mrs. Moat's petition for mandamus and this appeal, Mrs. Moat has received the release that she sought in her petition, which was a board decision.

[00:13:00] Speaker 04:
And that fact is the end of the live controversy in this case, and therefore, the case is moot.

[00:13:07] Speaker 04:
Now, Mrs. Moat argues that the board decision that she received, which was a remand, isn't the type of board decision she wanted.

[00:13:15] Speaker 04:
She either wanted a grant of benefits or the denial of benefits.

[00:13:21] Speaker 04:
But Mrs. Moat really is just attempting to compel a specific decision or result

[00:13:27] Speaker 02:
through a writ of mandamus.

[00:13:30] Speaker 01:
Can I interrupt you for a minute, Ms.

[00:13:31] Speaker 01:
Akers?

[00:13:32] Speaker 01:
Just taking you through, which I think is part of your presentation, which in the CAVC opinion, which I was discussing with your colleague, with your friend, Mr. McCloud, where the board says they, um, her request for a writ to issue a decision concerning her claims is premature.

[00:13:52] Speaker 01:
Is the CAVC saying, now that this second-level proceeding is going on, they won't have the issue of a mandamus writ will not be right until conceivably two or three or four years from now, we ultimately get a decision coming out of this case?

[00:14:14] Speaker 01:
What does the mature mean?

[00:14:16] Speaker 01:
I mean, you have to wait.

[00:14:18] Speaker 01:
Her writ deals with her past delays.

[00:14:22] Speaker 01:
and the need to put some timetable on going forward.

[00:14:26] Speaker 01:
And what I understand the government to be saying is we know the current status.

[00:14:32] Speaker 01:
So if it takes another year to get the information, and if it takes the board four years to get its decision, only then will a writ of mandamus be right.

[00:14:45] Speaker 01:
Is that what the CAVC is saying?

[00:14:48] Speaker 04:
I don't believe so, Your Honor.

[00:14:49] Speaker 04:
I think that the CAVC's

[00:14:52] Speaker 04:
note that her claim is premature references the remedy that she seeks.

[00:14:58] Speaker 04:
And so the CAVC was faced with her petition for mandamus, which was seeking an immediate board decision.

[00:15:05] Speaker 04:
And in conflict with her request for that extraordinary remedy was her simultaneous request for a travel board hearing that was pending.

[00:15:18] Speaker 04:
So taking into account Mrs. Moat's

[00:15:21] Speaker 04:
stated interest that on one hand, she said there was more evidence to be elicited before she wanted a decision.

[00:15:29] Speaker 04:
That's why she wanted a travel board hearing.

[00:15:31] Speaker 04:
On the other hand, she wanted an immediate decision.

[00:15:34] Speaker 04:
And so I believe that the CAVC was saying that her request for an immediate decision is premature because there's a predecessor step in the process

[00:15:46] Speaker 01:
Well, the CAVC, however, if the CAVC concluded that she had met the track factors as to what had gone down beforehand, then weren't they free?

[00:15:58] Speaker 01:
Did they not have the authority to say, well, wait a minute, given the current status, we're going to have a 30-day monitoring, 30 days apiece, and we're going to put a time frame, 60 days for the remand, 60 days for the board after the remand is concluded,

[00:16:14] Speaker 01:
I mean, they weren't necessarily completely and only bound by this request, whatever it was, for 30 days or 45 days after the filing, right?

[00:16:24] Speaker 01:
The CABC could have fashioned, in what your view might have been, a more reasonable timetable given the request for a travel hearing, et cetera, right?

[00:16:36] Speaker 04:
I agree with that, Your Honor, with the caveat that

[00:16:39] Speaker 04:
Although the CAVC could have fashioned a remedy that was not requested by the parties, it's certainly not an abuse of discretion for the CAVC not to do something that was never requested by Mrs. Moat.

[00:16:55] Speaker 04:
Now, she's asking for an immediate decision, and by denying her petition for mandamus, the CAVC is really adhering to her own interest in further developing her claim.

[00:17:09] Speaker 01:
She also asked for a report every 30 days in terms of the status of this proceeding.

[00:17:16] Speaker 01:
Why would that?

[00:17:18] Speaker 01:
I mean, that's what they requested.

[00:17:19] Speaker 01:
So why would that be a problem for the CAVC to reach that?

[00:17:24] Speaker 01:
And why is that not, why is that premature given the history of this case?

[00:17:32] Speaker 04:
Perhaps, Your Honor, the request for a progress report wasn't premature, but

[00:17:37] Speaker 04:
We believe that that is sort of ancillary relief that she was seeking in attempt to get the real relief that she wanted, which was a board decision.

[00:17:49] Speaker 01:
And so that... And just to be clear with your answer to my earlier question, I'm sorry to interrupt, but the time is constrained.

[00:17:56] Speaker 01:
The CABC would clearly have authority, would they not?

[00:18:01] Speaker 01:
to not accept the precise relief that she was requesting in terms of when the board decision would issue, but to extend it or to modify it based on the circumstances on the ground.

[00:18:13] Speaker 01:
That clearly would have been within their authority, correct?

[00:18:17] Speaker 04:
I believe, Your Honor, that the court has authority to fashion an appropriate remedy.

[00:18:23] Speaker 04:
However,

[00:18:25] Speaker 04:
I am not 100% sure on the case law as it relates to the Veterans Court for that.

[00:18:32] Speaker 04:
And I would just, again, remind Your Honor that even if a court can do something under an abuse of discretion standard, the fact that the court doesn't do it, we would suggest is not an abuse of discretion.

[00:18:46] Speaker 02:
And... Yes?

[00:18:50] Speaker 02:
Council, this is just more... I guess one of my concerns

[00:18:54] Speaker 02:
is that I don't see any analysis of the track factors having taken place.

[00:19:00] Speaker 02:
And it's almost as though we didn't write Martin.

[00:19:03] Speaker 02:
So I feel like that, I'll be honest with you, I feel like that is itself an abuse of discretion not to have performed precisely and exactly the analysis that we said needed to be performed when we remanded this case last time.

[00:19:18] Speaker 04:
Understood, Your Honor.

[00:19:20] Speaker 04:
The Court remanded for the Veterans Court to consider the traditional mandamus requirements, which are the Cheney factors, as informed by the track analysis.

[00:19:30] Speaker 04:
But the important point here is that the Court recognized in Martin that all three Cheney requirements must be met for a mandamus to be issued.

[00:19:40] Speaker 04:
And so, because the Veterans Court determined

[00:19:43] Speaker 04:
that Cheney factor three, whether under the circumstances the writ was appropriate, was not met, there was really no need for the court to go on and provide further analysis on another factor when, in fact, all three factors must be met.

[00:20:02] Speaker 04:
So I understand your concern that little ink was spilled talking about the track factors, but the Cheney factors

[00:20:10] Speaker 04:
still govern, the Veterans Court still has to adhere to that test put forth by the Supreme Court.

[00:20:16] Speaker 01:
So you acknowledge, just in response to Judge Moore, you're agreeing with Judge Moore that the CAVC did not consider the track factors.

[00:20:26] Speaker 01:
Rather, they concluded that the case was either premature and that they didn't have to consider those factors, correct?

[00:20:34] Speaker 04:
I wouldn't go that far, Your Honor.

[00:20:36] Speaker 04:
The court, the CAVC did cite the track factors, and you can certainly gather from the analysis.

[00:20:43] Speaker 01:
I'm sorry, go ahead.

[00:20:45] Speaker 01:
I'm sorry.

[00:20:46] Speaker 04:
No problem.

[00:20:47] Speaker 04:
You can certainly gather from the court's analysis that they were grappling with what the track factors are aimed to look at.

[00:20:54] Speaker 04:
For example, the track factors take note of the veteran's interest.

[00:20:59] Speaker 04:
And that's certainly what the CAVC was

[00:21:04] Speaker 04:
looking at when it was analyzing this request for mandamus.

[00:21:07] Speaker 04:
So I agree that the court didn't go factor by factor and put a three paragraph analysis under each one, but the analysis that the CAVC provided did account for Mrs. Moat's interest in receiving a traveling board hearing, which is track factor three and five, for example, and it really focused on Mrs. Moat's interest rather than

[00:21:29] Speaker 04:
the VA's interest, which is the big distinction between the TRAC analysis and the Costanza analysis.

[00:21:36] Speaker 04:
So we would assert that because the CAVC adhered to the Cheney requirement, specifically number three, as it's required to do, and took into account Mrs. Moat's interest in its analysis, which is appropriate under the TRAC factors, the CAVC didn't abuse its discretion by denying Mrs. Moat's petition for mandamus.

[00:22:00] Speaker 02:
Council, can you further elaborate just so I understand clearly your argument?

[00:22:05] Speaker 02:
My question, I think it was an abuse of discretion not to analyze this case under the tract factors.

[00:22:11] Speaker 02:
And you're saying they didn't have to get to the tract factors because the tract factors are one of the three Cheney factors.

[00:22:17] Speaker 02:
And if the other two Cheney factors aren't met, then they never had to review the tract factors.

[00:22:22] Speaker 02:
That's what I understand your argument to be.

[00:22:24] Speaker 02:
What is the Cheney factor that you think dispositively results this case that the lower court actually decided?

[00:22:33] Speaker 04:
I think the Cheney factor that was the subject of the CAVC's analysis was the third Cheney factor, whether under the circumstances mandamus is appropriate.

[00:22:44] Speaker 04:
And to your point, Judge Moore, about the court

[00:22:48] Speaker 04:
perhaps abusing its discretion by simply not applying the track factors, I would just note that in the track case itself that put forth these factors for the first time, the court didn't go through one by one and analyze the track factors.

[00:23:03] Speaker 04:
It said the circumstances are such that we don't need to do the test here, even though if it were, that would inform our analysis.

[00:23:12] Speaker 04:
And so I don't think that it's automatically an abuse of discretion not to go factor by factor

[00:23:19] Speaker 04:
if the overall circumstances are not so egregious as to warrant mandamus, which is what the... You just referred... Were you saying the Martin case didn't analyze the track factors?

[00:23:34] Speaker 03:
No, Your Honor.

[00:23:34] Speaker 04:
I was referring to the track case from the D.C.

[00:23:39] Speaker 04:
Circuit.

[00:23:40] Speaker 03:
Okay.

[00:23:41] Speaker 03:
All right.

[00:23:42] Speaker 03:
I got...

[00:23:44] Speaker 04:
Correct.

[00:23:44] Speaker 04:
And just the point there is that it's not an abuse of discretion for the court not to go line by line through all of the factors.

[00:23:51] Speaker 04:
If the Cheney test is not met, which also applies, of course, the track factors are in, or excuse me, the Cheney test is informed by the track factors.

[00:24:02] Speaker 04:
But if all three Cheney requirements must be met and the court here found that mandamus was appropriate under the circumstances, there was no abuse of discretion.

[00:24:12] Speaker 04:
We would assert, though, that the court doesn't even need to get to the merits of this case because of the mootness.

[00:24:21] Speaker 04:
And the important point on the mootness here, and what's notably missing from this case, is what remedy Mrs. Moat now seeks.

[00:24:30] Speaker 04:
Given, as we explained in our July 31st response to this court's request regarding the update of the case,

[00:24:37] Speaker 04:
there has been a lot of action that has happened since this petition for mandamus was filed.

[00:24:43] Speaker 03:
Mrs. Motz, received a call again?

[00:24:45] Speaker 03:
Yes.

[00:24:46] Speaker 03:
I'm sorry.

[00:24:46] Speaker 03:
Before you get into that, would you mind answering a question I had asked your friend on the other side earlier, which is talking about Mrs. Motz's choice to have a travel board hearing.

[00:24:59] Speaker 03:
What is the typical or average time until a travel board hearing when a veteran chooses a travel board hearing?

[00:25:08] Speaker 04:
Your Honor, I don't have the answer off the top of my head, but I do have some information that might be helpful for you.

[00:25:14] Speaker 04:
The travel board is, of course, the judges going around the country, so they have to get on a flight and all of that.

[00:25:21] Speaker 04:
There are about 90 judges, and they conduct about 5,000 of these travel board hearings every year.

[00:25:28] Speaker 03:
So if there are more requests, can you get an answer to my question?

[00:25:32] Speaker 03:
I mean, if you get an average delay or

[00:25:38] Speaker 03:
typical delay, and I'm just wondering, is there a resource somewhere that you could point me to?

[00:25:46] Speaker 04:
I could find that information and submit a letter to the court.

[00:25:50] Speaker 04:
I just don't have it in front of me, so I'm not sure where to point you.

[00:25:55] Speaker 04:
But the travel board hearing, if there are more requests than capacity, is just a first-come, first-served basis.

[00:26:02] Speaker 04:
And so it's not as though Mrs. Motz

[00:26:05] Speaker 04:
is waiting far longer than any other veteran or veteran family member.

[00:26:10] Speaker 04:
If there are more requests and capacity, she has to wait in line like everyone else.

[00:26:16] Speaker 02:
And so... Well, I think that... Council, I think that goes to sort of the heart of what we expressed concern about in Martin, which was just the exorbitant amount of time to perform even ministerial tasks.

[00:26:30] Speaker 02:
And I'm not suggesting a hearing itself is ministerial, but there were, in Martin, there were so many examples of things that took years and years that could have been done in a matter of minutes.

[00:26:41] Speaker 02:
And I understand that you're saying, oh, well, but it takes years and years for everyone.

[00:26:45] Speaker 02:
I just don't see how that's an excuse.

[00:26:46] Speaker 02:
I don't see how that's a response to a request, which is the agency isn't doing its job and it isn't giving me a decision in a reasonable amount of time.

[00:26:58] Speaker 02:
I understand your concern Judge Moore.

[00:27:00] Speaker 04:
I would note though that although the travel board hearing does take a significant amount of time to get scheduled, there are other resources for the veteran or their family member.

[00:27:12] Speaker 04:
For example, there's an option for video conference rather than having the judge get on a plane and fly to the claimant.

[00:27:20] Speaker 04:
That was offered to Mrs. Mo on four separate occasions, but she wanted the in-person hearing, which is, of course, her right.

[00:27:28] Speaker 04:
But it's not as though there was no way to speed this up.

[00:27:32] Speaker 04:
And the VA has taken steps to increase its video conferencing capabilities in the past.

[00:27:38] Speaker 04:
And so the delay here, I'll just finish my sentence and then be done.

[00:27:44] Speaker 04:
The delay here was not some sort of ministerial or clerical act.

[00:27:48] Speaker 04:
that the VA was just refusing to move on, there are real resource and personnel limitations that the VA has sought to remedy through video conferencing, but Mrs. Moats didn't want to take advantage of that, which, of course, is her right, but then there are consequences resulting in this delay.

[00:28:07] Speaker 04:
Thank you, Your Honors.

[00:28:10] Speaker 01:
Thank you.

[00:28:11] Speaker 01:
Mr. McCloud?

[00:28:14] Speaker 00:
Thank you, Your Honor.

[00:28:15] Speaker 00:
Just a couple of points in response.

[00:28:17] Speaker 00:
Our fundamental argument is not that the CAVC erred in failing to analyze Martin line by line.

[00:28:24] Speaker 00:
It's that the CAVC never bothered to analyze Martin in the first place.

[00:28:28] Speaker 00:
As Judge Moore noted, it seems almost like the CAVC ignored the existence of Martin.

[00:28:33] Speaker 00:
And sadly, that is a very common outcome in these sorts of cases.

[00:28:39] Speaker 00:
I am aware of nearly 200 cases that have been decided by the CAVC post-Martin.

[00:28:46] Speaker 00:
involving mandamus petitions and in all but one of them the petition has been denied often with none of the analysis that called for by this court's decision in martin so this is not is not alone in in experiencing the sort of uh... minimal analysis

[00:29:06] Speaker 00:
is present in this case.

[00:29:08] Speaker 02:
To return to the discussion... Can I ask you also, counsel?

[00:29:11] Speaker 02:
This is such more.

[00:29:13] Speaker 02:
So I guess here's my concern.

[00:29:15] Speaker 02:
What is the relief you are hoping this appellate court will give you in this case?

[00:29:20] Speaker 02:
Suppose I agree with you that it was an abusive discretion for the CABC to fail to properly analyze mandamus taking all of those things into consideration.

[00:29:32] Speaker 02:
Isn't that just a vacate and remand for them to do the analysis under those circumstances?

[00:29:38] Speaker 00:
Your Honor, I think that is one option available to the court.

[00:29:42] Speaker 00:
The other option that is available to the court on the mandamus issue is, I believe, to actually explain how the Martin analysis would apply in those circumstances.

[00:29:52] Speaker 00:
to create the sort of precedent that would guide the C.A.B.C.

[00:29:56] Speaker 00:
in its analysis of future mandamus petitions presenting claims of unreasonable claims.

[00:30:02] Speaker 02:
Counsel, you can't possibly think that this court should actually perform the track analysis factors.

[00:30:12] Speaker 02:
There's so much involved in terms of factual analysis or

[00:30:16] Speaker 02:
understanding of the circumstances that it just seems very inconsistent with what we appellate courts do in the first instance.

[00:30:26] Speaker 00:
Your Honor, I understand your point.

[00:30:27] Speaker 00:
I do think the record is sufficient to allow the court to perform that analysis, but if the court disagrees, then Your Honor is correct, vacating and remaining with clear instructions to actually perform the analysis required by Martin would be another option.

[00:30:45] Speaker 02:
Well, one of the other things I don't understand about this case is why the lower court decided to deny mandamus to the extent that it was requesting simple oversight and reporting.

[00:30:57] Speaker 02:
Even if they weren't going to grant mandamus in the form of, you know, hey, board, issue an immediate decision, which seems like a very unlikely remedy.

[00:31:10] Speaker 02:
Um, but the oversight, given that this case has taken over nine years, um, look, we all know when someone is looking over your shoulder, you're going to eat two or cookies.

[00:31:20] Speaker 02:
So, uh, you know, you're going to be better behaved.

[00:31:23] Speaker 02:
You're going to act faster because someone's looking over your shoulder and watching you.

[00:31:26] Speaker 02:
So I guess I'm just kind of wondering, uh, what, what was the harm in granting that portion of the mandamus petition?

[00:31:35] Speaker 00:
Your honor, I see my time has expired.

[00:31:36] Speaker 00:
If I may respond to this question.

[00:31:38] Speaker 05:
Please proceed.

[00:31:38] Speaker 05:
Please proceed.

[00:31:39] Speaker 05:
Yeah.

[00:31:40] Speaker 00:
It your honor, you're exactly right.

[00:31:42] Speaker 00:
There was no barrier to the CBC issuing the sort of oversight relief that Mrs. Mo called for in her petition.

[00:31:49] Speaker 00:
And I think the remedy of mid amiss is an equitable remedy.

[00:31:54] Speaker 00:
It's inherently flexible.

[00:31:55] Speaker 00:
The CBC could have taken consideration.

[00:31:58] Speaker 00:
of what the appropriate relief would be in these circumstances, and it failed to do that.

[00:32:02] Speaker 00:
So for those reasons, we'd ask you to make a decision.

[00:32:04] Speaker 01:
So you're at disagreement.

[00:32:05] Speaker 01:
Just let me follow up on that.

[00:32:06] Speaker 01:
I'm sorry.

[00:32:07] Speaker 01:
Let me follow up.

[00:32:07] Speaker 01:
Because the government, I don't know if she was absolutely definitive, but was suggesting that if the CAVC didn't think this final decision by the board in 30 days that you were requesting was feasible, then they couldn't fashion another remedy.

[00:32:23] Speaker 01:
I'm hearing you say that, of course, they could.

[00:32:26] Speaker 01:
from the circumstances at the ground.

[00:32:30] Speaker 00:
Exactly, Ronner.

[00:32:31] Speaker 00:
Of course the court has wide discretion to fashion or remedy.

[00:32:34] Speaker 00:
That happens in many mandating cases where the court thinks that the full relief that the party has requested is not appropriate to grant, but nevertheless grants a lower level of relief.

[00:32:44] Speaker 00:
And that would have been perfectly appropriate to do in this case.

[00:32:47] Speaker 02:
Counsel, can I ask one more factual question just to make sure I understand?

[00:32:50] Speaker 02:
Didn't you in fact ask for that?

[00:32:52] Speaker 02:
Didn't you give the CAVC alternatives, which was

[00:32:56] Speaker 02:
please order them to issue a board decision, either thumbs up or thumbs down, within 30 days, or in the alternative, please exercise oversight in the form of, you know, status updates every 30 days to make sure things are proceeding.

[00:33:10] Speaker 02:
Wasn't that part of your argument to the CAVC?

[00:33:15] Speaker 00:
That's absolutely correct, Your Honor.

[00:33:16] Speaker 00:
That was explicitly our petition.

[00:33:18] Speaker 00:
It was briefed to the CAVC, and the Court never even considered that option.

[00:33:22] Speaker 02:
So it's not a matter of even asking them to fashion an alternative.

[00:33:27] Speaker 02:
You actually gave them two discrete alternatives.

[00:33:31] Speaker 02:
They addressed one and ignored entirely the other.

[00:33:34] Speaker 00:
That's correct, Your Honor.

[00:33:38] Speaker 01:
I just want to ask one other quick question, and I'm sorry if you could be brief, but did you have any response to the government's analysis of

[00:33:45] Speaker 01:
didn't really have to do the track factors because of Cheney and they reach that first and therefore the track factors kind of are not necessary to go into an in-depth analysis.

[00:33:56] Speaker 01:
Do you have a response?

[00:33:57] Speaker 00:
I do, Your Honor.

[00:33:58] Speaker 00:
Yes, I don't agree with that analysis.

[00:34:00] Speaker 00:
The point of track is to channel the court's analysis under Cheney.

[00:34:05] Speaker 00:
So Cheney sets out the general standard for mandamus, but the track analysis

[00:34:10] Speaker 00:
is the way that you apply cheney in the particular context of unreasonable play i think uh... consequence of the government position is that you could perform the track analysis and find that delay was so egregious that it warrants mandamus but nevertheless have the court deny it uh... based purely on it discretion i would submit that that's simply can't be distinguished otherwise

[00:34:34] Speaker 00:
there would be no purpose to performing the track Martin analysis at all.

[00:34:37] Speaker 00:
A court could always simply say, I, for whatever reason in my discretion, decide mandamus is not appropriate.

[00:34:43] Speaker 00:
So the reason that the track analysis exists is to channel the discretion and decide when it is appropriate to award mandamus relief.

[00:34:51] Speaker 00:
And those circumstances are met here.

[00:34:55] Speaker 01:
Anything else from the panel?

[00:34:57] Speaker 00:
No, Your Honor.

[00:34:59] Speaker 01:
Thank you.

[00:34:59] Speaker 01:
We thank both sides and the cases submitted.

[00:35:02] Speaker 01:
That concludes our proceeding for this morning.

[00:35:05] Speaker 01:
Thank you all.

[00:35:07] Speaker 02:
The Honorable Court is adjourned until tomorrow morning at 10 a.m.