[00:00:09] Speaker 04:
We have five cases on the calendar this morning.

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Two from the PTAB, one from the MSPD, and two from the Veterans Court, one of which is being submitted in the briefs and will not be argued.

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Our first case is a Veterans case.

[00:00:30] Speaker 04:
Kathy Gardner Dixon versus

[00:00:33] Speaker 04:
Secretary of Veterans Affairs, 2021, 1462, Mr. Carpenter.

[00:00:38] Speaker 01:
May it please the court, Kenneth Carpenter, appearing on behalf of Mrs. Kathy Gardner-Dixon, the substitute appellant in this matter for her deceased husband, Herbert Dixon.

[00:00:52] Speaker 01:
I'd like to begin with what I believe are four undisputed facts in this record.

[00:00:58] Speaker 01:
The first is that Mr. Dixon had told the VA that while he was on temporary duty to a base in Thailand... Mr. Carpenter, you're leading off with facts, and you know full well we're going for you facts.

[00:01:11] Speaker 01:
But these are undisputed facts, Your Honor.

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And if there are undisputed facts, then this Court does have jurisdiction to address the question as a question of law.

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And more importantly, this is really a case involving jurisdiction.

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And as such, this Court does have

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uh... uh... jurisdiction to consider whether or not the veterans court properly interpreted its own jurisdiction or whether it in fact impermissibly limited that person to address the question whether the veterans court had jurisdiction over this remand order i believe they did you know uh... and i'm sorry your question was what i address that okay sorry uh...

[00:01:53] Speaker 01:
I believe that they did, Your Honor, under the plain language of 7252b.

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And 7252b expressly refers in the second sentence to the extent of the review shall be limited to the scope provided under section 7261 of this title.

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We believe that that clearly

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expresses the intent of Congress to allow for review of agency actions in the first instance by direct review request by a claimant or a veteran who believes that they have had unlawfully denied or unreasonably delayed receipt of benefits or decision in their case.

[00:02:45] Speaker 03:
But wouldn't you agree that the Veterans Court's jurisdiction is provided under 7252?

[00:02:51] Speaker 01:
Yes, Your Honor.

[00:02:53] Speaker 01:
OK.

[00:02:53] Speaker 01:
But it is not limited.

[00:02:54] Speaker 03:
And that specifies it.

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There's no guessing involved here.

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That statutory language is specific that there's jurisdiction over the decisions of the board.

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And since that time, we've defined decisions as being final determinations.

[00:03:13] Speaker 03:
How can you say that a remand order is final?

[00:03:15] Speaker 01:
I cannot, Your Honor, and I do not believe that it is necessarily a final decision.

[00:03:21] Speaker 01:
However, the statute must be read in its entirety.

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The review of decisions is referred to in subsection A of 7252 and not in subsection B

[00:03:35] Speaker 01:
because section B says that the review of the court shall be on the record of the proceedings before the secretary and before the board, which is a much broader statement of review than a simple final decision as referenced in subsection A. More importantly, in section 7261A2, or excuse me, A3, it specifically says that in any action

[00:04:05] Speaker 01:
brought under this chapter, the Court of Appeals for Veterans Claims, to the extent necessary to its decision and when presented, shall hold unlawful and set aside decisions and findings of the secretary, of the board, or of the chairman of the board found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

[00:04:33] Speaker 01:
This is the same standard of review that Congress afforded Article III courts for review of all agency actions under the APA.

[00:04:43] Speaker 02:
So, Mr. Carver, I don't quite understand.

[00:04:46] Speaker 02:
First of all, you're arguing that there should be a right of appeal.

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from the board to the Veterans Court.

[00:04:53] Speaker 02:
But this case doesn't involve an appeal at all, but mandamus.

[00:04:58] Speaker 02:
That's correct, Your Honor.

[00:05:00] Speaker 02:
So if there's a right to appeal, as you contend, you can't very well say there's a right to mandamus.

[00:05:07] Speaker 01:
The right to mandamus is the only available remedy at the current time because of the jurisdictional limitation imposed by the Veterans Court in his Breeden case.

[00:05:18] Speaker 02:
in breeden the court held that its jurisdiction was limited by the terms of seventy two fifty two maybe your theory is they were wrong and so you could vindicate that by appeal you can't get a mandamus when you have a right to appeal and i i think not correct that there's a right to appeal but if there is a right to appeal and you can't get mandamus so why are we why are we here

[00:05:42] Speaker 01:
what we are here your honor because that was the only remedy left available mister dixon when he was alive that was the only way in which he could challenge but your own theory is he could appeal but he yes your honor accepted mechanism by the veterans court in previous cases has been to

[00:06:09] Speaker 01:
require that if there is jurisdiction that jurisdiction will lie by way of their mandamus authority because of this court's jurisdiction that they do have mandamus authority to review uh... uh... uh... actions of the day and in that way that was the only mechanism that mister dixon had available but what is really what should we look at the remand process itself as an alternative remedy i'm sorry

[00:06:39] Speaker 03:
Why should we not view the remand process itself as an alternative remedy?

[00:06:45] Speaker 03:
Because, Your Honor, the plain language of 72... I've kind of followed through on this, and it seems to me that you could win, ultimately win, under the remand.

[00:07:00] Speaker 03:
Well, we could, Your Honor, but... Well, then why is that not an alternative remedy that would negate

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mandamus because of the facts in this case that this remand order was issued in April of 2019.

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We are now in November of 2021.

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That remand is still pending.

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Mr. Dixon during his life and after his death has suffered an unreasonable delay in getting a decision on his case.

[00:07:37] Speaker 01:
yes you're absolutely correct that he could have gotten a favorable decision but as yet he has gotten no decision that is the complaint that is made in the mandamus petition that he was entitled to a decision on the theory of his having entitlement to presumptive service connection because of his work done in on the perimeter at the air force base in thailand

[00:08:07] Speaker 01:
the veterans court in its order acknowledge that there was a right to presumptive service connection if he were in fact there he provided that lay evidence there is no reason that the war should have remanded to develop another theory when the primary theory of presumptive service connection was clear on the record and as the

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Veterans Court noted and the board itself noted, there was no evidence contradicting Mr. Dixon's claim.

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Should we find that the Court of Veterans Appeals had no jurisdiction, then we necessarily have to rule against the writ of mandamus?

[00:08:52] Speaker 03:
Is that how you see this?

[00:08:58] Speaker 01:
yes your honor i do however i'd also see this as an opportunity for this court to recognize by a de novo review of how jurisdiction was exercised in this case whether or not jurisdiction was properly exercise and whether or not the veterans court did in fact have jurisdiction to reach the question presented by the mandamus claim which was the unreasonable the lead

[00:09:27] Speaker 01:
And that unreasonable delay has been substantiated by the last 30 months in which this case has been on remand with no decision.

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And the whole purpose of that remand was to get an examination, which is not necessary under the presumptive provisions, and to get documentation to substantiate his claim for direct service connection.

[00:09:57] Speaker 01:
None of the remand instructions dealt with the primary assertion of entitlement to presumptive service connection to which he was entitled to a decision when he appealed the VA's original denial of service connection for his presumptive heart condition.

[00:10:17] Speaker 01:
I see I'm nearing my rebuttal time.

[00:10:19] Speaker 01:
Unless there's further questions, I'd like to reserve the balance of my time for rebuttal.

[00:10:23] Speaker 04:
We will save it for you, Mr. Carpenter.

[00:10:25] Speaker 01:
Thank you very much, Your Honor.

[00:10:26] Speaker 01:
Excuse me.

[00:10:27] Speaker 04:
Ms.

[00:10:27] Speaker 04:
Pruzer?

[00:10:45] Speaker 00:
May it please the Court, the Veterans Court did not err in denying Mrs. Gardner-Dixon's petition for a writ of mandamus.

[00:10:52] Speaker 00:
Such an action would not have been in aid of its jurisdiction as required by the All Writs Act because several precedential decisions of this Court define the term decision within the meaning of 7252 in a way that does not allow the Veterans Court to review Board remand orders.

[00:11:09] Speaker 00:
Additionally, the Veterans Court decision should be affirmed because Mrs. Gardner-Dixon failed to raise any legal challenge to the Veterans Court's other bases for denying her petition.

[00:11:19] Speaker 00:
As discussed here in the oral argument, this is not a claim for unreasonable delay.

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Mrs. Gardner-Dixon's petition for writ of mandamus

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did somewhat discuss the idea that her case was being delayed.

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The Veterans Court considered that as part of its decision using the track factors as required by this court and rejected that argument.

[00:11:39] Speaker 00:
So that has not been discussed on appeal.

[00:11:41] Speaker 03:
Does it contribute that a remand determination cannot be the subject of a writ of mandamus?

[00:11:52] Speaker 00:
The question of whether a writ of mandamus is whether it's an aid of the court's jurisdiction.

[00:11:58] Speaker 00:
So based on how this court has defined what the veteran's court jurisdiction is, simply reviewing the merits of a remand by itself is not an aid of its jurisdiction.

[00:12:08] Speaker 00:
There's obviously cases that have discussed unreasonable delay, where remands have been ordered and are simply taking too long.

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And this court has held that a writ of mandamus can be used to bring a matter

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to protect the court's future jurisdiction when something is taking too long.

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But that's not the case here.

[00:12:28] Speaker 03:
What if the remand is issued under clear mistaken articulation of the law?

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That is a situation where the adequate relief is to follow the appeals process.

[00:12:41] Speaker 00:
Mrs. Gardner-Dixon would have this court create an alternative form of appeal, which is outside 7252.

[00:12:46] Speaker 00:
This court and Kirkpatrick, and particularly Maggott, which Kirkpatrick relies upon,

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has defined a decision in 7252 as a decision of the board with an order that grants or denies relief.

[00:13:01] Speaker 00:
A remand is not granting or denying any relief on the benefits sought.

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Mr. Dixon's claim was for a heart condition.

[00:13:08] Speaker 00:
That remand order did not grant or deny anything to do with that benefit.

[00:13:13] Speaker 00:
It simply remanded it so that if the board started creating something, it was called decisions, but it wasn't including these

[00:13:22] Speaker 00:
I mean, there would be different cases where the board could be making different kinds of orders, but here in this case, a remand is clearly not granting or denying the benefits sought as required to bring that order within the definition of a decision per 7252 and Kirkpatrick and Maggett.

[00:13:40] Speaker 00:
I mean, this case is really foreclosed by Kirkpatrick.

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Kirkpatrick has rejected all of the arguments that Mrs. Gardner-Dixon has brought, particularly even about extending Williams to the Veterans Court review of board remand orders.

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Mrs. Gardner-Dixon, particularly in the reply, urges this court to say that Williams should apply to the Williams exceptions to finality, should apply to the Veterans Court review of board remand orders, and Kirkpatrick solidly rejected that argument.

[00:14:07] Speaker 00:
This is not an issue of first impression, but the Veterans Court has power to review board remands.

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I mean, Howard v. Dober, Meyer v. Brown, particularly Maggett, even last year in Moten v. Wilkie, this court held our precedent holds that a board decision in this context does not mean a mere remand.

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I mean, in Ray Wick, these are all cases that are not discussed by Mrs. Gardner-Dixon.

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quite unambiguously hold that the Veterans Court can only review board decisions and the decision is not a remand order as the case here.

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Also, the Veterans Court did not impose any limitation in its Breeden case.

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Breeden followed Maggett.

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What is preventing the Veterans Court from reviewing board remand orders is how this court has defined the term decision, particularly again in Maggett and Kirkpatrick.

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Mrs. Gardiner-Dixon presents no reason to ignore or overrule those cases.

[00:15:06] Speaker 00:
Therefore,

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particularly in terms of 38 USC section 7261, that does not provide an alternate basis for jurisdiction.

[00:15:21] Speaker 00:
Again, this court has been very clear that 7261 is not an independent grant of jurisdiction, but only delineates what the Veterans Court must do when it does have jurisdiction under 7252.

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And again, this is explained thoroughly

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in the Mayer case and in Ray Wick.

[00:15:40] Speaker 00:
The fact that 7261 authorizes the court to compel action of the secretary unlawfully withheld or unreasonably delayed does not assist Mrs. Gardiner-Dixon.

[00:15:50] Speaker 00:
Again, the Veterans Court can issue writ of mandamus to address claims of unreasonable delay, but that is only for situations where the Veterans Court would have jurisdiction over the matter in the future to bring the matter to a point where it will get a decision.

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not to create a new type of appellate process as is being urged here.

[00:16:12] Speaker 00:
So, again, 7261 is not an independent grant of jurisdiction.

[00:16:17] Speaker 00:
It is the scope of the Veterans Court's power when it does have jurisdiction within 7252.

[00:16:22] Speaker 03:
So, does the Veterans Court ever have mandamus authority absent or lacking a final decision?

[00:16:32] Speaker 03:
Support the Board runs amok.

[00:16:37] Speaker 03:
under a situation like that, would the Veterans Court have mandamus authority to put things back in order?

[00:16:47] Speaker 00:
I'm not entirely sure what your honor means by running amok, but, you know, I mean, a writ of mandamus is an extraordinary remedy.

[00:16:53] Speaker 00:
So if the board is taking actions outside of its defined powers, you know, there could be a situation where the Veterans Court could prevent that using a writ of mandamus, but your remand is... Or a reasonable delay.

[00:17:06] Speaker 02:
you could issue a writ of mandamus if there was unreasonable delay in resolving the remand, right?

[00:17:11] Speaker 00:
Yes, if the board orders a remand and it is taking in its very long amount of time, for example in the Martin case that's discussed, a writ of mandamus can be used to urge the secretary to take action.

[00:17:22] Speaker 00:
That's not necessarily the board doing something incorrect.

[00:17:26] Speaker 00:
But something within the agency is taking too long.

[00:17:30] Speaker 00:
So that is a situation where the writ of mandamus can be used.

[00:17:32] Speaker 00:
But that is not what, again, not what Mrs. Gardner-Dixon is arguing here.

[00:17:37] Speaker 00:
And the veteran's court did give her the benefit of the doubt and say, even if she's making this kind of unreasonable delay argument, we'll go through the track factors.

[00:17:45] Speaker 00:
And the track factors go against her.

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And she is not appealing that analysis.

[00:17:49] Speaker 03:
So your argument is that, in this case, we don't have unreasonable delay.

[00:17:55] Speaker 03:
in the future or in other cases where there is unreasonable delay, there could be a basis for mandamus authority.

[00:18:03] Speaker 00:
There could be other cases like Martin and Moat where someone is saying that the board has remanded, the secretary is taking unreasonable delay, and the Veterans Court can issue a writ of mandamus.

[00:18:14] Speaker 00:
We don't have any issue with that line of cases.

[00:18:17] Speaker 00:
It's just not applicable to this situation.

[00:18:20] Speaker 03:
Why should we let this case go forward

[00:18:24] Speaker 03:
Why shouldn't the Veterans Court assert its mandamus authority, determine that in this case, it's not unreasonable delay, and dismiss it?

[00:18:34] Speaker 00:
Well, there's two issues there, Your Honor.

[00:18:38] Speaker 00:
The first is that to issue a writ of mandamus, the person has to be initially

[00:18:44] Speaker 00:
entitled to one.

[00:18:45] Speaker 00:
And that initial review is whether the writ would be an aid of jurisdiction, which is part of the Albright Act.

[00:18:52] Speaker 00:
And her arguments failed that first initial test because the purpose of the mandamus in this case would be to review the legal merits of the remand order, which is not a decision.

[00:19:04] Speaker 00:
So it is outside.

[00:19:05] Speaker 00:
It is not an aid of jurisdiction.

[00:19:06] Speaker 00:
The Veterans Court did go

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beyond that and go through the chainy factors and the track analysis and say that those arguments are not successful either.

[00:19:15] Speaker 00:
So the Veterans Court really covered all its bases here, but we're really, based on the way the appeal has been structured, we're really only here discussing whether the Veterans Court correctly interpreted its jurisdictional statutes.

[00:19:27] Speaker 00:
But there's a whole, as we argue in our brief,

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The decision should be affirmed because he's not appealing those other reasons why the writ of mandamus should be denied anyway.

[00:19:35] Speaker 00:
But separate from that, the Veterans Court did correctly apply and understand 7252 and 7261.

[00:19:46] Speaker 00:
It's well established the Alvitz Act cannot be used to expand a court's jurisdiction.

[00:19:50] Speaker 00:
A written mandamus cannot be used as a substitute for appeal.

[00:19:53] Speaker 00:
This is well stated in the Chocks, Lamb, Roach cases.

[00:19:57] Speaker 00:
Mrs. Yardner-Dixon's argument is simply to create a new type of appeal process that is outside 7261 that is not what Congress envisioned when it created the Title 38 veterans process.

[00:20:09] Speaker 00:
So hearing no further questions, I will say this court should affirm

[00:20:13] Speaker 00:
Binding precedent forecloses what Mrs. Gardner-Dixon is arguing for here.

[00:20:18] Speaker 00:
Thank you.

[00:20:19] Speaker 04:
Thank you, counsel.

[00:20:22] Speaker 04:
Mr. Copper has some little time.

[00:20:27] Speaker 01:
May it please the court.

[00:20:31] Speaker 01:
The government would submit to this court that there are divisions of Mr. Dixon's right to have decisions of the agency reviewed.

[00:20:43] Speaker 01:
even if that decision of the agency is to unlawfully deny, which we believe they did on a presumptive basis, and that was an implicit denial.

[00:20:54] Speaker 01:
This court has recognized the concept of implicit denial, but now it's being used as a sword as opposed to a shield against Mr. Dixon.

[00:21:04] Speaker 01:
He is told, no, he doesn't have the right to mandamus because it wasn't in aid of the court's jurisdiction.

[00:21:11] Speaker 01:
But it is in aid of the court's jurisdiction because ultimately a decision has to be made.

[00:21:19] Speaker 01:
And then once that decision is made, it must be reviewed by the veterans court.

[00:21:25] Speaker 01:
The remand circumvented that right.

[00:21:28] Speaker 01:
The remand by the board in this case prevented Mr. Dixon from getting judicial review of the implicit denial of presumptive service connection.

[00:21:38] Speaker 01:
As a consequence, there is no remedy available, according to the government, other than this case is affirmed and Mrs. Dixon now, in the shoes of her deceased husband, goes back and files either a direct appeal of the remand decision or files another writ action, establishing that not only is it in aid of jurisdiction now, but because of the two and a half years worth of delay,

[00:22:08] Speaker 01:
that we are in a circumstance in which this is now unreasonable delay because he still doesn't have a decision on presumptive service connection.

[00:22:19] Speaker 01:
As I mentioned in the opening, the entire basis for the remand by the board was to establish an alternative basis without addressing direct service connection for, or excuse me, presumptive service connection for establishing direct service connection.

[00:22:36] Speaker 01:
That was an unlawful denial of his right to a decision on his appeal of the VA's decision to deny him presumptive service connection.

[00:22:50] Speaker 01:
The question raised by the government of whether or not this is consistent with this court's line of cases relative to jurisdiction.

[00:23:00] Speaker 01:
Those line of cases all dealt with

[00:23:03] Speaker 01:
the appeal of a remanded decision.

[00:23:09] Speaker 01:
As this court has correctly observed, this is not an appeal.

[00:23:13] Speaker 01:
This is a petition for extraordinary relief under the court's rules for the Veterans Court's rules for relief from unlawful action by the secretary in the person or in the entity of the board denying

[00:23:33] Speaker 01:
presumptive service connection.

[00:23:36] Speaker 01:
This court is now faced with the question of whether or not the court properly exercised its jurisdiction over mandamus.

[00:23:46] Speaker 01:
We believe that when read in its totality, the language in 7252b combined with the language in 7261 does permit

[00:23:59] Speaker 01:
the Veterans Court to review, under these circumstances, the inaction taken by the board in failing to arrive at a final decision.

[00:24:09] Speaker 01:
Unless there's further questions from the panel, we would probably push the balance of our time.

[00:24:14] Speaker 04:
Thank you, Mr. Doffman, to the case is submitted.