[00:00:00] Speaker 04:
This morning the first one is number 20-2233, Philbrook versus McDonough, Mr. Carpenter.

[00:00:09] Speaker 04:
You can take your mask off if you'd like.

[00:00:11] Speaker 02:
Thank you very much, Your Honor.

[00:00:15] Speaker 02:
May it please the court, Kenneth Carpenter appearing on behalf of Mr. Gary Philbrook.

[00:00:20] Speaker 02:
At issue in this appeal is the meaning of the language used by Congress in 38 USC 1513 C. This statute expressly prohibits the VA from paying awards of TDIU benefits, total disability based upon individual unemployability, during any period during which the veteran is incarcerated

[00:00:45] Speaker 02:
in a federal, state, local, or other penal institution or correctional facility for the conviction of a felony.

[00:00:53] Speaker 02:
The Veterans Court erroneously concluded that Mr. Philbrook's circumstances were covered by the plain meaning of the terms used by Congress in this statute.

[00:01:04] Speaker 02:
This was a misinterpretation of the unambiguous language used by Congress.

[00:01:09] Speaker 01:
Congress was... So Mr. Cooper, that's actually my first question I wanted to confirm.

[00:01:14] Speaker 01:
that the statute's ambiguous, you're saying it unambiguously doesn't cover these circumstances.

[00:01:19] Speaker 02:
That's correct, Your Honor.

[00:01:21] Speaker 04:
Okay.

[00:01:21] Speaker 04:
What about in terms of the purpose of the statute?

[00:01:24] Speaker 04:
Is there any reason why Congress would want to distinguish between confinement in a prison and confinement in a mental hospital pursuant to a plea of not guilty by reason of insanity, similarly?

[00:01:39] Speaker 02:
I believe that issue is beyond the inquiry of this court in this case.

[00:01:45] Speaker 04:
I understand you're saying the plain language is the plain language, but I'm asking you in terms of the purpose of the statute.

[00:01:54] Speaker 04:
Is there a reason that Congress might want to distinguish between those two situations?

[00:02:03] Speaker 02:
I cannot think of a specific reason why they would, but I would suggest by its absence that it must be concluded or inferred by this court that Congress intended not to include that.

[00:02:18] Speaker 02:
This circumstance is entirely different than the circumstance described in the statute.

[00:02:26] Speaker 02:
The statute describes incarceration in a correctional facility.

[00:02:30] Speaker 02:
This is confinement in a mental institution.

[00:02:34] Speaker 02:
Those are clearly separate categories or classifications of circumstances in which veterans would find themselves.

[00:02:43] Speaker 02:
And even though there may be a reason to infer an intent of Congress, it is the fact that Congress did not include this category within, which they clearly could have and clearly were capable of doing.

[00:02:58] Speaker 02:
is the difference between why this interpretation relied upon by the Veterans Court is inconsistent with law.

[00:03:07] Speaker 01:
There's no doubt that he wasn't able to leave from the hospital, correct?

[00:03:13] Speaker 02:
That's correct, Your Honor.

[00:03:14] Speaker 01:
So he was confined?

[00:03:17] Speaker 02:
He was committed involuntarily.

[00:03:20] Speaker 02:
under a state law that provided that he would stay there until a separate commission, a non-penal commission, determined whether or not his mental condition had restored itself.

[00:03:33] Speaker 02:
And he spent a considerable length of time, I believe it's seven or eight years, in the mental institution during which time he did not apply for this benefit, then applied for the benefit,

[00:03:48] Speaker 02:
and the benefit was adjudicated by the regional office as though there were entitlement.

[00:03:55] Speaker 01:
Well, is the government correct that you're no longer arguing that he wasn't convicted of a felony?

[00:04:04] Speaker 02:
I have not made that argument before this court.

[00:04:06] Speaker 02:
That is correct, Your Honor.

[00:04:09] Speaker 02:
In our view, there is no distinction under the statute

[00:04:13] Speaker 02:
Excuse me.

[00:04:15] Speaker 02:
In our view, there is a distinction under the statute between the reason for the conviction of the felony.

[00:04:23] Speaker 02:
In Mr. Philbrook's case, it's conviction of a felony based upon a guilty plea of insanity at the time of the commission of the crime, which was made and accepted by a state court.

[00:04:36] Speaker 02:
And under state law, he was involuntarily committed to a mental institution.

[00:04:42] Speaker 01:
Are you arguing the issue of the pro-veteran canon alternatively?

[00:04:47] Speaker 01:
Yes.

[00:04:48] Speaker 01:
Okay.

[00:04:48] Speaker 01:
Because if it's unambiguous, it wouldn't come into play.

[00:04:51] Speaker 02:
Absolutely, Your Honor.

[00:04:53] Speaker 02:
Simply in the event that this Court would determine that there is ambiguity, which would be contrary to the interpretation relied upon by the Veterans Court, that that ambiguity should be interpreted under the pro-veteran's canon in favor of Mr. Filmore.

[00:05:11] Speaker 03:
Mr. Carpenter, I think, you know, the correctional facility was added to the statute.

[00:05:17] Speaker 03:
It's an amendment.

[00:05:17] Speaker 03:
It wasn't in the original language of the statute.

[00:05:20] Speaker 03:
It was just penal institution.

[00:05:22] Speaker 03:
What do you think correctional institution means?

[00:05:26] Speaker 03:
What does it add in excess of penal institution?

[00:05:35] Speaker 02:
that the person is serving a sentence under a facility that was designed for that purpose, that the conviction of the felony... I mean, I understand that.

[00:05:48] Speaker 03:
I mean, the government makes a similar circular... I mean, it sounds a little circular to me, and the government makes...

[00:05:54] Speaker 03:
a similar circular argument.

[00:05:57] Speaker 03:
I'm just a little confused as to, except for the express legislative history, which talks about just making sure there is no public-private distinction, if you think there's any content to correctional facility, or is it just another word used for penal institutions in our regular parlance?

[00:06:16] Speaker 02:
I believe it is simply an alternative description of the same thing as a penal

[00:06:22] Speaker 02:
facility or penal institution.

[00:06:24] Speaker 03:
So let me ask you another question and I apologize because I didn't look and I just thought of this now and it's not in the briefs.

[00:06:31] Speaker 03:
Are you aware of any provision in these statutes that would prohibit the VA from paying TDIU benefits for somebody that is involuntarily committed under a civil order to a mental hospital rather than

[00:06:50] Speaker 03:
as we have here some type of criminal proceeding.

[00:06:53] Speaker 02:
No, I'm not, Jim.

[00:06:55] Speaker 02:
As far as I know, there is no such regulatory provision that has been created by the Secretary.

[00:07:00] Speaker 03:
So if we're just talking in terms of what I think the government points out a lot, a legislative history, that the government shouldn't be paying TDIU when the taxpayer is already paying for

[00:07:11] Speaker 03:
the person to be, you know, provided for otherwise, that argument is somewhat on point in terms of prisons, but it goes too far when we're talking about civil commitments.

[00:07:24] Speaker 03:
Because those people would likewise be maintained by taxpayer funds.

[00:07:29] Speaker 02:
That's great.

[00:07:30] Speaker 04:
Which perhaps suggests a distinction in terms of the purpose of the statute between the veteran's culpability.

[00:07:39] Speaker 04:
In other words, if you're guilty of a crime, you're not going to get TDIU, but if you're committed for mental treatment, I think culpability doesn't exist there.

[00:07:53] Speaker 02:
I think culpability is a distinguishing factor between the classification of veterans who would have committed a felony and are incarcerated in a penal or correctional institution versus a veteran who commits a crime that resulted from a lack of a mental capacity to form the intent to do that.

[00:08:17] Speaker 02:
And at least under Oregon state law, he is permitted to plead

[00:08:21] Speaker 02:
guilty and be confined to a mental institution, which is precisely what happened here and is not contemplated by the plain language of the statute.

[00:08:33] Speaker 01:
All right, that's all.

[00:08:38] Speaker 01:
That's not in the statute, though, right?

[00:08:41] Speaker 01:
the fact that there's a different level of culpability.

[00:08:44] Speaker 02:
No, Your Honor, it's not.

[00:08:46] Speaker 02:
But it's an attempt to distinguish, following Judge Hughes' question, the question of what does it mean for a correctional institution to have been added by Congress.

[00:08:58] Speaker 02:
And in other words, the plain language conveys a clear intent by Congress to not allow a TDIU benefit when there was a knowing commission of a crime

[00:09:10] Speaker 02:
for which time is being served.

[00:09:12] Speaker 01:
Are you saying that penal institution and correctional facility are one and the same?

[00:09:18] Speaker 02:
I wouldn't go that far, Your Honor.

[00:09:20] Speaker 02:
I would simply go so far as to say that they are indistinguishable on their face.

[00:09:29] Speaker 02:
That the conviction of a felony results in

[00:09:40] Speaker 02:
serving time in a penal institution or in a correctional institution.

[00:09:46] Speaker 02:
The distinction between those is not pertinent to this court's inquiry as to whether or not Congress intended to include another classification of veterans.

[00:09:59] Speaker 03:
OK.

[00:10:00] Speaker 03:
Can I just ask you a couple more questions?

[00:10:02] Speaker 03:
My understanding, Mr. Philbrook has a scheduler rating that would presumptively entitle him to TDIU, is that correct?

[00:10:12] Speaker 02:
I wish that were the law, Your Honor, but no, it's not.

[00:10:15] Speaker 03:
So he still has to prove

[00:10:17] Speaker 03:
Even if we reverse here on this provision, he has to prove that his PTSD and whatever other conditions he has is causing his unemployability.

[00:10:32] Speaker 02:
Yes, Your Honor.

[00:10:34] Speaker 02:
Okay.

[00:10:34] Speaker 02:
And to be clear, I thought it was in the briefs, but Mr. Philbrook has been released, made application, and has been granted.

[00:10:43] Speaker 02:
So the VA has made that determination

[00:10:47] Speaker 02:
contrary to the determination made by the agency in the first instance here and the only difference is is that the board said it's a matter of law.

[00:10:54] Speaker 03:
So going forward, I'm just mechanically, if we reverse, I'm trying to figure out that we have to tell the Veterans Court.

[00:11:01] Speaker 03:
They have to vacate and remand and send it back to the board to determine whether he should get TDIU for whatever period of time it is.

[00:11:10] Speaker 02:
Yes, from the date of the application to the current date, which is post his release.

[00:11:15] Speaker 02:
unless there's further questions on reserve of the balance of my time for the public.

[00:11:18] Speaker 02:
Thank you.

[00:11:20] Speaker 02:
Ms.

[00:11:20] Speaker 02:
Akers.

[00:11:22] Speaker 00:
Thank you, Your Honors.

[00:11:23] Speaker 00:
It may please the Court.

[00:11:25] Speaker 00:
The plain language, ordinary meaning of the statute resolves this case.

[00:11:30] Speaker 04:
Mr. Philbrook, as confided... What authority is there that prison or correctional facility includes a mental hospital?

[00:11:39] Speaker 04:
What dictionary definition suggests that that's the case?

[00:11:43] Speaker 00:
I would point your honor to the Black's Law dictionary definition of correctional facility, although I believe we've argued in our brief that under any definition put forth by the parties in this case, whether it's Black's Law, Merriam-Webster's, or USlegal.com, encompasses Mr. Philbrook's circumstances.

[00:12:02] Speaker 04:
What is the Black's Dictionary?

[00:12:05] Speaker 00:
The Black's Law dictionary definition provides that a correctional facility is a

[00:12:10] Speaker 00:
of treatment through confinement.

[00:12:14] Speaker 03:
And... I mean, isn't the problem with that argument that it proves too much because that would include institutions that are purely civil commitments, even if they're involuntary?

[00:12:29] Speaker 00:
It could, Your Honor, but I think where that concern is remedied is later in the statute 5313, which provides that the veteran has to be incarcerated

[00:12:39] Speaker 00:
in the correctional facility for the conviction of a felony.

[00:12:43] Speaker 00:
And so I think to Your Honor's previous example, to Appellant's counsel, civil commitment or involuntary commitment, for example,

[00:12:51] Speaker 00:
That doesn't seem to comport with the conviction of the felony language, which is also required under 5313.

[00:12:58] Speaker 00:
And so looking at the Black's Law dictionary definition, it's a place of confinement for treatment.

[00:13:04] Speaker 03:
I understand you want to get back to that Black's Law, but can you just be precise?

[00:13:09] Speaker 03:
Where in the statute are you identifying that?

[00:13:13] Speaker 03:
Which language are you using to include a mental hospital?

[00:13:16] Speaker 03:
Is it penal institution, or is it correctional facility?

[00:13:19] Speaker 00:
Correctional facility, Your Honor.

[00:13:20] Speaker 00:
Although that's what the Veterans Court found and that's what we've argued, although the definition that Mr. Philbrook cited in his brief for penal institution, we believe also encompasses the mental hospital because the penal institution as defined by USlegal.com, which Mr. Philbrook cites, encompasses a correctional facility.

[00:13:43] Speaker 00:
And so we haven't put forth that definition, but even if the court were to adopt that definition,

[00:13:48] Speaker 00:
a state mental institution falls within that definition as well.

[00:13:52] Speaker 00:
But I think it's more clearly defined as a correctional facility as defined in Black's Law Dictionary.

[00:13:58] Speaker 03:
It's a place of... Well, if you're going to rely on the correctional facility, how do you get over the fact that the legislative history for that amendment is fairly clear about the point for it, which was, and it calls itself a technical amendment, it doesn't note that it's a broadening amendment, and its sole purpose seems to have been

[00:14:17] Speaker 03:
to address a case that was going on at the Veterans Court that may have excluded private prisons versus publicly operated prisons.

[00:14:26] Speaker 03:
If that's the sole purpose to add a correctional institution, then isn't the reading of correctional institution simply that it was meant to make clear that private prisons as opposed to public ones were included and not broaden it to include mental hospitals?

[00:14:43] Speaker 00:
Your honor, I think that the legislative history and the purpose actually supports our argument.

[00:14:47] Speaker 00:
And I understand your honor's reference between public and private.

[00:14:50] Speaker 00:
That's the Wanless case where this court has already addressed this statute.

[00:14:55] Speaker 00:
But the actual legislative history that's addressed in Wanless explains that sure, this was just a clarifying amendment to add correctional facility.

[00:15:04] Speaker 00:
But it is a broad statute.

[00:15:05] Speaker 00:
And the purpose of the statute is to prevent duplicative government expenditures.

[00:15:10] Speaker 00:
And here, in this case, that purpose is met exactly.

[00:15:13] Speaker 00:
Mr. Philbrook was confined in a state mental institution, so his needs were taken care of by the taxpayers.

[00:15:19] Speaker 03:
Can you point me where in the 2006 legislative history?

[00:15:23] Speaker 03:
I have the Committee on Veterans Affairs report, which is the only thing I found that was relevant.

[00:15:29] Speaker 03:
Is there some place in that that talks about it in the more general terms you're talking about, rather than just addressing the Wanless case?

[00:15:37] Speaker 00:
Rather than just addressing the one list case well your honor.

[00:15:40] Speaker 00:
I would point your honor to I just have the citation which is the one that cited in the one list case which is public law 109-461 section 1002

[00:15:56] Speaker 00:
And it states that it is a clarifying amendment technical and clarifying amendment and As the court in the one less case explained there wasn't a Substantive change when this was amended, but it did clarify that a correctional Facility is what Congress intended to include in the prohibition of these TDIU benefits and so I think it's

[00:16:23] Speaker 03:
Yeah, but the problem is the rest of that goes on to say that there's been a significant growth in the number of privately operated penal facilities.

[00:16:31] Speaker 03:
And if the VA or the courts were to conclude that the original language only included public facilities, it will lead to the anomalous result that you would get compensation whether you were in a public or private one.

[00:16:46] Speaker 03:
That makes sense.

[00:16:47] Speaker 03:
You shouldn't be getting TDIU for committing murder.

[00:16:51] Speaker 03:
just because you're in a private facility rather than a public facility.

[00:16:54] Speaker 03:
But it doesn't say anything about whether something that's not traditionally thought of as a penal institution would be addressed by this amendment.

[00:17:07] Speaker 00:
I agree, Your Honor, that the legislative history doesn't squarely address a state mental hospital, for example.

[00:17:12] Speaker 00:
But I think that the court first doesn't even need to get to the legislative history because the plain language of the statute is clear.

[00:17:19] Speaker 00:
both counsel admit it's unambiguous or acknowledge it's unambiguous.

[00:17:23] Speaker 03:
Can I ask you a hypothetical?

[00:17:24] Speaker 03:
If somebody is applying for a job and on their on their form they have to fill out their background check form they have to say have you ever been confined in a penal institution or correctional facility?

[00:17:40] Speaker 03:
If somebody had been committed to the Oregon State Hospital would they have to check yes

[00:17:46] Speaker 00:
If, Your Honor, the person consulted Black Flaw Dictionary, yes.

[00:17:51] Speaker 03:
What about the people at the hospital that are civilly committed?

[00:17:55] Speaker 03:
I understand this is not, you might have a better argument if there were this unique mental hospital only for people that otherwise would have been convicted of crimes, but my understanding is

[00:18:07] Speaker 03:
that the Oregon State Hospital is a state mental hospital that has both patients that are civilly committed, some voluntarily, and ones that are committed as a result of crimes.

[00:18:19] Speaker 03:
I mean, what's the distinction between those definitionally?

[00:18:24] Speaker 03:
I mean, I understand legally, but definitionally, if you're civilly committed and your view is that that's a correctional facility, wouldn't they have to say they were in a correctional facility?

[00:18:34] Speaker 00:
Again, Your Honor, under the black-slot dictionary definition which says, correctional facility

[00:18:39] Speaker 00:
is a place of confinement for treatment.

[00:18:42] Speaker 00:
And if we look at the definition of confinement and treatment, then yes.

[00:18:45] Speaker 04:
But it doesn't say it is a mental hospital.

[00:18:48] Speaker 04:
That's correct.

[00:18:49] Speaker 04:
And prisons do treat people.

[00:18:52] Speaker 04:
I don't see that you can get out of the Black's Law Dictionary the clarity that you're trying to get out of it.

[00:18:59] Speaker 04:
It's not saying that every place where you're confined for treatment is a prison or correctional facility.

[00:19:05] Speaker 00:
That's correct, Your Honor.

[00:19:06] Speaker 00:
And in fact, the statute doesn't even use the word

[00:19:09] Speaker 00:
prison or jail at all.

[00:19:10] Speaker 00:
In fact, it's broader.

[00:19:11] Speaker 00:
It uses correctional facility or penal institution.

[00:19:14] Speaker 01:
It does start out with the word incarcerated, correct?

[00:19:18] Speaker 01:
That's correct.

[00:19:19] Speaker 01:
Which in turn means imprisonment.

[00:19:22] Speaker 01:
So I'm not quite sure how someone who's in a mental facility is imprisoned.

[00:19:29] Speaker 00:
Well, Your Honor, I'm just going back to the Black Slaw dictionary definition, which says confined for the purpose of treatment.

[00:19:37] Speaker 00:
And Mr. Philbrook admits that he was confined.

[00:19:39] Speaker 01:
Yeah, but the statute says incarcerated.

[00:19:42] Speaker 00:
That's correct, Your Honor.

[00:19:43] Speaker 01:
It doesn't say confined.

[00:19:44] Speaker 01:
It says incarcerated.

[00:19:46] Speaker 00:
Well, and there's been no dispute in this appeal or in this case that Mr. Philbrook was not incarcerated.

[00:19:53] Speaker 00:
It's not an issue that's ever been raised.

[00:19:55] Speaker 01:
And so I think... But we're supposed to be reading the statute.

[00:19:58] Speaker 01:
I mean, we're not allowed to interpret a statute and say because someone didn't point us to a particular part of the statute or that we should just ignore that part of the statute, right?

[00:20:09] Speaker 00:
Right.

[00:20:09] Speaker 00:
And I think to remedy Your Honor's concern, Mr. Philbrook has admitted, and you can find in Appendix 1, that he committed a crime.

[00:20:16] Speaker 00:
He was arrested, and he was confined for that.

[00:20:19] Speaker 00:
So I think that fairly remedies Your Honor's concern that he wasn't incarcerated.

[00:20:25] Speaker 00:
He certainly was confined for the conviction of a felony.

[00:20:28] Speaker 03:
When you say he's agreed that he's committed a crime, is that because he's pled guilty but by reason of insanity he doesn't get imprisoned?

[00:20:38] Speaker 00:
Correct, Your Honor.

[00:20:38] Speaker 03:
Well, so let me ask you this.

[00:20:40] Speaker 03:
What about the states where instead of having that particular plea, you have a not guilty by reason of insanity

[00:20:48] Speaker 03:
and you're a judge not guilty but you're still committed, would in that case somebody be ineligible for TDIU benefits because they would have been not guilty of a crime but they're still in a mental hospital much in the same situation that this veteran is.

[00:21:08] Speaker 00:
Your Honor, I'm not sure about that hypothetical.

[00:21:11] Speaker 00:
I imagine the veteran would make an argument that they were not incarcerated, and maybe there's a state law argument to be made, which was made, in fact, in this case.

[00:21:19] Speaker 04:
But in all, they weren't convicted, too, right?

[00:21:21] Speaker 00:
Perhaps, Your Honor, but in this case, we're dealing with Oregon state law, which is about... Sure, but you've got to be consistent, right?

[00:21:27] Speaker 03:
I can't imagine that the Secretary would argue that whether somebody gets TDIU in these circumstances depends on the particular state law plea applicable to mental insanity.

[00:21:39] Speaker 03:
I mean, the Secretary never argues for that state-specific application of veterans' benefits.

[00:21:45] Speaker 03:
So if that would, if not guilty by reason of insanity,

[00:21:51] Speaker 03:
is a particular plea, then it either has to be included in this language or excluded and the two have to be treated similarly, I would think.

[00:22:01] Speaker 00:
I agree with your honor.

[00:22:02] Speaker 00:
I think all things being equal, if that were the plea as opposed to the plea that we have in this case and the person was still confined for the purpose of treatment,

[00:22:13] Speaker 00:
I think we would have the same argument looking at the plain language of the statute and referring to the dictionary.

[00:22:18] Speaker 01:
If the statute was so clear, then why did the RO deny the request for completely different reasons and not rely on this supposed bar?

[00:22:29] Speaker 00:
I'm not sure, Your Honor.

[00:22:30] Speaker 00:
I think our record is sort of vague or nonexistent on that point.

[00:22:36] Speaker 01:
But it is meaningful that the VA itself didn't seem to think that this was an exclusion.

[00:22:42] Speaker 00:
Well, I think it's unclear exactly the basis for that original denial.

[00:22:47] Speaker 00:
So I'm not sure that we can go further.

[00:22:49] Speaker 01:
Well, it's not unclear.

[00:22:50] Speaker 01:
The original denial was that they didn't think his PTSD was bad enough to make him unemployable.

[00:22:56] Speaker 01:
I mean, it's very clear that the original denial had nothing to do with the statute.

[00:23:02] Speaker 00:
Arguably, Your Honor, I think earlier we, to Judge Hughes' question, talked about whether

[00:23:08] Speaker 00:
Mr. Philbrook would still have to prove that the reason he's unemployable is the PTSD as opposed to being confined and so perhaps that was an issue that was going through the RO's head.

[00:23:18] Speaker 00:
I am uncertain the reason that the RO didn't flag this particular reason for being not eligible for TDIU, but I do think that Your Honors can just look at

[00:23:31] Speaker 00:
dictionary definitions and find that Mr. Filbrook has admitted that he's confined.

[00:23:37] Speaker 03:
The sentencing docket, which you can find at Appendix 31, says it was for the purpose of treatment and... Do any of the dictionary definitions you cite specifically include a mental hospital or something akin to that in the definition of correctional facility, or are you just arguing by reasons of general purpose?

[00:23:59] Speaker 00:
Your Honor, none of the dictionary definitions specifically call out state mental or mental institution at all.

[00:24:05] Speaker 00:
Admit that.

[00:24:06] Speaker 00:
However, the definitions don't really talk about specific places.

[00:24:10] Speaker 00:
I believe one definition says, i.e., prison.

[00:24:13] Speaker 00:
But they don't list examples of what would constitute a correctional facility.

[00:24:17] Speaker 00:
It just simply provides a definition.

[00:24:19] Speaker 00:
And then, of course, we can apply that definition to our circumstances.

[00:24:22] Speaker 03:
Are you aware?

[00:24:24] Speaker 03:
I'm sorry if this is unfair.

[00:24:27] Speaker 03:
I mean, if you drive up to a correctional facility in states that call them correctional facilities, are any of them ever mental hospitals?

[00:24:36] Speaker 00:
I wish I knew the answer to your question.

[00:24:38] Speaker 03:
I mean, I think they're jails.

[00:24:41] Speaker 03:
I think some states call their prison system correctional facilities, and some states may still call them penal institutions.

[00:24:49] Speaker 03:
I've never seen anything that's remotely akin.

[00:24:52] Speaker 03:
And again, this is not in the record.

[00:24:53] Speaker 03:
But if it were, if people knew about it, I'm sure somebody would have cited to us that a mental hospital is called a correctional facility.

[00:25:02] Speaker 03:
So it seems to me you are arguing from general language and general dictionary definitions and saying this is the purpose Congress must have intended.

[00:25:12] Speaker 03:
But that doesn't get us very far if Congress didn't actually write that statute.

[00:25:17] Speaker 03:
And doesn't the Social Security Statute, which specifically lays out mental hospitals as another reason for denying benefits in that context, show us that Congress knows how to include mental hospitals when it wants to?

[00:25:34] Speaker 03:
And, you know, for whatever reason,

[00:25:38] Speaker 03:
They didn't do that here.

[00:25:39] Speaker 03:
Maybe it was an oversight.

[00:25:41] Speaker 03:
Maybe if we say that it doesn't include it, they will respond with a very quick amendment to add it.

[00:25:47] Speaker 03:
But why isn't all of this statutory and legislative history, and particularly the fact that Correctional Institute was added specifically only to address a private public prison, enough to suggest that they just didn't include mental hospitals?

[00:26:02] Speaker 00:
Well, Your Honor, I think correctional facility is a broad term, and so we can start there.

[00:26:07] Speaker 03:
Well, you keep saying that, but you've never been on general definitions in Black's law dictionary and other dictionary definitions.

[00:26:17] Speaker 03:
You've never given me a specific example of a correctional facility that's not a prison.

[00:26:24] Speaker 00:
I understand Your Honor's concern.

[00:26:25] Speaker 00:
Our argument would be that the Oregon State Mental Institution is an example.

[00:26:30] Speaker 00:
And I just think that the purpose of this 5313

[00:26:35] Speaker 00:
is to avoid the duplicity of government expenditures.

[00:26:38] Speaker 00:
And that is the purpose that's being fulfilled here.

[00:26:41] Speaker 00:
So I understand Your Honor's concern that we're simply relying on the Black Slaw Dictionary, but we believe that to be an appropriate tool of statutory interpretation.

[00:26:48] Speaker 00:
It fits the circumstances here.

[00:26:50] Speaker 00:
It fits the legislative purpose.

[00:26:52] Speaker 00:
And one last point to Your Honor's reference to the Social Security statute.

[00:26:57] Speaker 00:
We believe that to be a very unclear argument.

[00:27:01] Speaker 00:
I'm not really sure.

[00:27:03] Speaker 00:
what is to be made of that.

[00:27:04] Speaker 00:
But there is a reference to penal institute or correctional facility.

[00:27:08] Speaker 01:
I don't understand what you're saying, what's to be made of that.

[00:27:12] Speaker 01:
We often look to statutes and we say when Congress wants to draw a distinction between one thing or another, it knows how to do it.

[00:27:21] Speaker 01:
Or if Congress wants to cover the landscape.

[00:27:25] Speaker 01:
And in the Social Security

[00:27:26] Speaker 01:
situation, Congress did cover the landscape and it did not assume that reference to correctional facility or penal institution was enough to encompass the hospitals.

[00:27:37] Speaker 01:
It later, in subsections, discussed the hospitals.

[00:27:41] Speaker 01:
I don't understand why you say that's an unclear argument.

[00:27:44] Speaker 00:
Well, Your Honor, it's because in that statute it does reference penal institutions and correctional facilities, just like in our statute.

[00:27:52] Speaker 00:
And then in the next subsection, which is cited by Mr. Philbrook, it says institutions at public expense.

[00:27:59] Speaker 00:
And I believe those are the institutions.

[00:28:01] Speaker 01:
But then it also references hospitals.

[00:28:03] Speaker 01:
In other words, the first reference to penal institutions was not enough.

[00:28:08] Speaker 00:
Your honor, I don't I don't know that it and perhaps it does you probably know better than I do if you're saying it references hospitals But the the subsection that mr.. Philbrook is citing References an institution at public expense and the point of this is that is set out distinct from Correctional Institute shit right because the pre-ding proceeding said

[00:28:32] Speaker 03:
subsection is confined in a jail, prison, other penal institution or correctional facility, which almost exactly mirrors the language in the VA statute.

[00:28:44] Speaker 03:
So they clearly understand that phrase different from the following subsection, which is an institution at public expense in connection with all of those guilty findings by reason of insanity.

[00:28:58] Speaker 00:
Your Honor, I'm not exactly sure how the distinction is being treated in this statute.

[00:29:02] Speaker 00:
It's not clear that the reference to an institution at public expense is being treated differently than the penal institution or correctional facility.

[00:29:10] Speaker 03:
No, they're being treated exactly the same.

[00:29:12] Speaker 03:
There is, the beginning of the section is a limitation on benefits.

[00:29:17] Speaker 03:
But the fact that they set them out and felt compelled to set them out in two different subsections, at least to me, suggests that they're different things.

[00:29:25] Speaker 03:
Why isn't that the most logical reading of this?

[00:29:28] Speaker 00:
Well, because, Your Honor, it sets out essentially different sentencing.

[00:29:34] Speaker 00:
if you are convicted or found to be guilty but insane, or if you are convicted or found to be guilty by reason of insanity.

[00:29:41] Speaker 00:
So it's more specific as to what the exact plea is, but that says nothing as to whether a mental institution.

[00:29:47] Speaker 03:
But you wouldn't need any of that if Correctional Facility already included that, right?

[00:29:54] Speaker 03:
Because that's in subpart 1Ai, or 1A1.

[00:29:59] Speaker 03:
If your argument is correct, then 1A2 is completely superfluous.

[00:30:03] Speaker 00:
Well, perhaps Congress, in creating this statute, or promulgating this statute, was attempting to address the unique state law questions that your Honor raised.

[00:30:13] Speaker 03:
There's different... Well, if they did it there, shouldn't they do it here?

[00:30:18] Speaker 00:
Perhaps, Your Honor, it would provide greater clarity, but just going back to looking at the plain language of the statute, the Black Slaw dictionary definition.

[00:30:29] Speaker 04:
I think what's fatal to your argument, let's take St.

[00:30:32] Speaker 04:
Elizabeth's in the District of Columbia, which includes people who are committed as a result of criminal charges and pleas if not guilty by reason of insanity, and also includes civil commitment.

[00:30:47] Speaker 04:
I mean, St.

[00:30:48] Speaker 04:
Elizabeth's either has to be a correctional facility or it's not.

[00:30:52] Speaker 04:
And I don't see how it can be a correctional facility when it encompasses people who had nothing to do with the criminal justice system.

[00:31:01] Speaker 04:
You wouldn't say that someone

[00:31:03] Speaker 04:
who is suffering from a mental disability and is involuntarily committed, was committed to a correctional facility.

[00:31:11] Speaker 04:
So how can St.

[00:31:13] Speaker 04:
Elizabeth's be a correctional facility if not everybody there is confined as a result of criminal proceedings?

[00:31:21] Speaker 00:
Well, Your Honor, I think simply because a state mental institution can serve dual purposes, right?

[00:31:27] Speaker 04:
It can serve... You mean sometimes it's a correctional facility and sometimes it's not?

[00:31:31] Speaker 00:
I think that's correct, Your Honor.

[00:31:33] Speaker 03:
If someone is at the facility... Look, the problem with that argument is you're asking us to look at the purpose for the confinement, not the definition of the institution.

[00:31:45] Speaker 03:
But Congress has not chosen to phrase the limitation on benefits based upon the purpose of

[00:31:53] Speaker 03:
the confinement.

[00:31:56] Speaker 03:
That is not in the language of the statute.

[00:31:59] Speaker 03:
It's an exclusion based upon the type of institution.

[00:32:05] Speaker 00:
I would respectfully disagree with that your honor because Congress included the language in the statute for the conviction of a felony.

[00:32:12] Speaker 00:
And so Congress is not saying, and has not said, if you are involuntarily committed to a state mental institution, you are not eligible for TDA.

[00:32:21] Speaker 03:
But the rest of it talks about what kind of facilities that you're committed to.

[00:32:25] Speaker 03:
So you're still asking us to look at the purpose of the confinement to define the facility, which is different than the conviction of a felony language that you keep wanting to take us back to.

[00:32:37] Speaker 03:
That's not enough.

[00:32:39] Speaker 03:
If all they wanted to say was, you don't get benefits if you're confined in any type of institution because of conviction of facility, they could have said that.

[00:32:49] Speaker 03:
Look, I don't have any doubt that the general purpose that they were going for here should probably cover people in this veteran situation.

[00:32:58] Speaker 03:
But they didn't use the language of the social security statute that would have clearly covered it.

[00:33:03] Speaker 03:
So why aren't you just bound by that?

[00:33:05] Speaker 00:
Well, Your Honor, I think that if the statute were interpreted as narrowly as Mr. Philbrook would like, and it's limited to a jail or a prison, which is an obvious example of a correctional facility, Congress would have used the word jail or prison, but it didn't.

[00:33:20] Speaker 00:
But St.

[00:33:20] Speaker 04:
Elizabeth's is either a correctional facility or it's not.

[00:33:23] Speaker 04:
And you're saying sometimes it is and sometimes it isn't.

[00:33:26] Speaker 04:
And as Judge Hughes points out,

[00:33:28] Speaker 04:
The statute doesn't seem to suggest that a correctional facility can have different meanings depending on the purpose of the confinement.

[00:33:36] Speaker 04:
I mean, that's a simple problem.

[00:33:38] Speaker 04:
I don't think people think of St.

[00:33:40] Speaker 04:
Elizabeth's as a correctional facility.

[00:33:44] Speaker 00:
But, Your Honor, if someone is confined there because they committed a felony crime, then they are in a facility

[00:33:53] Speaker 00:
for the purpose of treatment, and they're being confined.

[00:33:56] Speaker 00:
They can't leave.

[00:33:57] Speaker 00:
They know they can't leave.

[00:33:57] Speaker 00:
And it's because they committed a crime.

[00:34:00] Speaker 00:
And so I understand sort of the intellectual distinction between calling people who are involuntarily committed to have served in a correctional facility.

[00:34:08] Speaker 03:
What if you're involuntarily committed to a drug rehab center in lieu of being sentenced for a felony?

[00:34:17] Speaker 00:
involuntarily committed, then I think Your Honor's question would be remedied by the language that says for conviction of a felony.

[00:34:25] Speaker 00:
But if a felon was convicted and the judge said you must go to this particular institution and that institution confines you for the purpose of treatment, then you meet the dictionary definition.

[00:34:38] Speaker 03:
So you plead guilty, you take a felony, but instead of getting sent to jail you get probation and

[00:34:46] Speaker 03:
180-day term in a drug rehab center They don't get TDIU then Because a drug rehab center is a correctional facility well, I think that would be different your honor because they're not Confined there if they're if they're free to voluntarily confined in a drug rehab center they can't leave for 180 days under the terms of their probation agreement

[00:35:10] Speaker 00:
and the sentencing document said for the purpose of treatment, then yeah, the Black's Law Dictionary is plainly met.

[00:35:16] Speaker 00:
The dictionary that Mr. Philbrook puts forth, the Merrim Webster's definition, is clearly met.

[00:35:21] Speaker 00:
And so I think Your Honors really don't need to look any further than the dictionary definition, which is fulfilled here.

[00:35:29] Speaker 00:
Thank you.

[00:35:30] Speaker 04:
Thank you.

[00:35:31] Speaker 04:
Mr. Carpenter?

[00:35:33] Speaker 04:
You have four minutes here if you need it.

[00:35:35] Speaker 02:
May I please record?

[00:35:36] Speaker 02:
I have nothing further to add unless there's questions from the panel.

[00:35:40] Speaker 02:
Okay.

[00:35:40] Speaker 02:
Thank you.

[00:35:41] Speaker 04:
Thank both counsel.

[00:35:41] Speaker 02:
The case is submitted.