[00:00:00] Speaker 01:
Good morning, Your Honors.

[00:00:02] Speaker 01:
May it please the Court, my name is James Ridgway, and I represent the appellants in this matter.

[00:00:06] Speaker 01:
Before I roadmap the three pivotal errors made by the Veterans Court in this case, I want to initially state what this case is not about.

[00:00:14] Speaker 01:
This case is not about whether Mr. Bowling's character of discharge should be excused.

[00:00:21] Speaker 01:
This case is not about whether Mr. Appling has met the low threshold to trigger the duty to assist in developing evidence that might lead to his character of discharge being excused.

[00:00:32] Speaker 01:
This case is about whether the Constitution permits those questions to be governed by an implementing regulation that has no meaning to ordinary laypeople, no technical medical meaning, no technical legal meaning, and results in inconsistent outcomes among ROs and among board judges.

[00:00:55] Speaker 04:
translate what you just said into the proposition that you have not made an argument for vagueness as applied to your two clients?

[00:01:10] Speaker 01:
That is correct.

[00:01:10] Speaker 01:
This is a facial challenge, not an as applied challenge, but that is appropriate here because this is an interpretive regulation and not an authorizing statute.

[00:01:21] Speaker 01:
If you strike this regulation down, it does not change who is eligible for benefits and who is not eligible.

[00:01:29] Speaker 04:
Instead... Can I ask this question?

[00:01:30] Speaker 04:
I thought it remains good law, even after the Supreme Court's Johnson case and the Armed Career Criminal Act case, which throws a little bit of this into

[00:01:44] Speaker 04:
into uncertainty, but I thought it remains clear that a person to whom a law is clearly applicable, which is to say it's not vague as applied, cannot bring a facial vagueness challenge.

[00:02:04] Speaker 04:
I'm thinking of the expression view case, the Supreme Court 2017, which came after Johnson, which I think said that in so many terms.

[00:02:14] Speaker 04:
Why does that not preclude your facial challenge here?

[00:02:19] Speaker 01:
Because that is an application of the prudential concern under Washington State Grange that says, in certain situations, we will not look to the constitutional claim.

[00:02:31] Speaker 01:
because there are prudential reasons why there could be problems here.

[00:02:36] Speaker 01:
And so Washington State Grange says that these, prudentially you shouldn't do this if it's premature, if the person is asking for a rule that is broader than necessary,

[00:02:47] Speaker 01:
Or, and this is I think what applies in the criminal authorizing statutes, when you declare a criminal authorizing statute void for vagueness, you're frustrating the intent of the elected representatives of the people and throwing out the baby with the bath water.

[00:03:04] Speaker 01:
Here, as I emphasize, the intent of Congress, as expressed in the history of the GI Bill, is that the question of insanity ranges all the way from mere eccentricity to the behavior of a raging maniac.

[00:03:16] Speaker 01:
As the Veterans Committee Chairman explained, this means a man who is insane to such an extent that he is not responsible.

[00:03:24] Speaker 01:
That is the authorizing language.

[00:03:26] Speaker 01:
And if you strike down the interpretive regulation, that remains untouched.

[00:03:30] Speaker 01:
But BA would then have to focus on what Congress intended, which was responsibility, rather than this 90-word soup of terms that do not provide notice to an ordinary layperson of what is meant, that do not have a technical medical meaning, such that when you ask an expert for an opinion,

[00:03:51] Speaker 01:
they can give you something that is relevant beyond the question of, does this person have a diagnosed condition?

[00:03:58] Speaker 04:
Your mention of the ordinary lay person, I guess, prompts me to ask this question.

[00:04:03] Speaker 04:
Ordinarily, the concern or a concern about vagueness is a concern about notice at the time of the conduct.

[00:04:13] Speaker 04:
I think you rightly have not made an argument along those lines here because we're not talking about the decision to engage in bar room fights or something according to whether you're feeling insane that day or something.

[00:04:31] Speaker 04:
You're talking about the uncertainty about what kind of evidence to submit.

[00:04:37] Speaker 04:
Right in the proceeding, that would ordinarily not be a layperson's decision, would it?

[00:04:44] Speaker 01:
Well, not just the type of evidence, but what the ultimate thing that needs to be proven.

[00:04:48] Speaker 01:
The first thing I would say is there's a difference in terms of how you look at the notice question when it comes to the government on the offensive trying to prosecute a person for behavior that they may or may not have noticed was prohibited.

[00:05:02] Speaker 01:
Here, you're looking at the citizen who's coming to the government and saying, I have a property right.

[00:05:09] Speaker 01:
I'm entitled to benefits under the statute.

[00:05:12] Speaker 01:
And I don't understand how to prove that.

[00:05:15] Speaker 01:
And so I think what we look at is, I like the formulation in Graynard v. City of Rockford.

[00:05:20] Speaker 01:
A law is impermissibly vague, where it delegates basic policy matters to frontline officials for resolution on an ad hoc subjective basis.

[00:05:31] Speaker 01:
And if an ordinary person can't tell what to submit, and when the outcomes indicate that the results are ad hoc and subjective, depending on whether you apply in Indianapolis or Ohio or which state or which judge you get, and you have a chance of getting someone, an adjudicator who has a perfect record of always denying this, or an adjudicator who 45% of the time finds character of discharge to be excused,

[00:05:58] Speaker 01:
then there's a concern.

[00:06:00] Speaker 01:
And I think actually one of the best cases to look at the line is the one that the government relies upon for the proposition that vagueness at the margins is OK.

[00:06:10] Speaker 02:
And the cases in which the agency has found that the individual claiming to be insane was insane, what kind of evidence was put in in those cases?

[00:06:23] Speaker 01:
Well, we don't have a window into the evidence.

[00:06:27] Speaker 02:
No, but we do know that there are instances in which veterans who had bad paper discharges sought to establish insanity and they succeeded.

[00:06:39] Speaker 02:
Yes.

[00:06:39] Speaker 02:
And they did so in an adjudicating forum, although user friendly at least at the RO and BVA level.

[00:06:47] Speaker 02:
So your argument that one wouldn't know what type of evidence to supply seems, as a practical matter to me, to be belied by the fact that it has been done.

[00:06:58] Speaker 01:
Well, it's been done because the adjudicators have broad discretion to decide what the policy is.

[00:07:06] Speaker 02:
Well, by any of you, if we had examples, you'd be able to point out why the evidence that was submitted was left to serendipity to the decision makers.

[00:07:17] Speaker 01:
So I think that there are several things that you can look at.

[00:07:21] Speaker 01:
So first of all, you can look at what Adams and Montalto found in their study of board decisions, which is what actually happens is they apply a criminal insanity standard.

[00:07:31] Speaker 01:
And when you look at the hearing in Mr. Apling's case, what was the question that the board judge asked Mr. Apling?

[00:07:36] Speaker 02:
I just was curious.

[00:07:37] Speaker 02:
I mean, if you say one of the tests is whether there's more or less prolonged deviation from normal method of behavior,

[00:07:44] Speaker 02:
Presumably, one can establish one's normal method of behavior through evidence.

[00:07:51] Speaker 02:
Clearly, I mean, you can record one's behavior.

[00:07:56] Speaker 02:
And then I suppose you could, against the marker of the normal behavior, mark what you consider to be deviation there from.

[00:08:07] Speaker 02:
and examples of it.

[00:08:09] Speaker 02:
For example, if I ordinarily wear my clothes and a tie when I come on the bench, that's normal behavior.

[00:08:15] Speaker 02:
If I appeared with no tie or no robe, that would be a deviation, would it not?

[00:08:22] Speaker 01:
Yes.

[00:08:22] Speaker 02:
And that would be an easy matter to establish that by evidence.

[00:08:27] Speaker 01:
And in some cases, they're easy.

[00:08:29] Speaker 02:
So I think going back to your broad

[00:08:34] Speaker 02:
statement that this particular regulation should fall because no one knows what type of evidence or no one knows what to bring to bear to get a decision seemed to me not to be correct.

[00:08:47] Speaker 01:
So I think this is why national dairy products really makes clear where the line is.

[00:08:52] Speaker 01:
This is, again, the case relied upon by the government.

[00:08:54] Speaker 01:
And we agree, vagueness at the margins is fine.

[00:08:57] Speaker 01:
In national dairy products, the issue is whether a business was selling at a loss for the purposes of undercutting competition.

[00:09:06] Speaker 01:
And the Supreme Court said that that is not vague.

[00:09:09] Speaker 01:
Different accounting standards can lead to some uncertainty as to what it means to be at a loss.

[00:09:15] Speaker 01:
But it's not like the case they contrasted it to, which was Coen Grocery, where the language of the law prohibited unjust or unreasonable rates or charges.

[00:09:26] Speaker 01:
And the court said, in National Dairy, the Supreme Court said, that's too vague because it is without a meaningful reference in the business practice or usage.

[00:09:36] Speaker 01:
So if a technical term has a meaningful reference in business practice or usage, if it were such that mental health standards, professionals could tell you there's a standard for deciding what is the normal method of behavior.

[00:09:51] Speaker 01:
and what is a deviation, then that would be okay because it would have a technical meeting.

[00:09:57] Speaker 01:
But when we look to the Garbleman article, what we see is a VA examiner who says, there is no VA training and I don't understand what this means because it's a cumbersome regulation.

[00:10:08] Speaker 01:
And so what does he do to try and develop a meaning?

[00:10:11] Speaker 01:
Does he go to the DSM or other psychiatric sources?

[00:10:15] Speaker 01:
No, he reads 30 board decisions.

[00:10:19] Speaker 01:
to try and understand what the regulation means.

[00:10:22] Speaker 01:
But the mental health experts should not be giving you their opinions on a technical legal standard.

[00:10:28] Speaker 01:
They should be giving you technical mental health opinions, which they can do on the question of diagnosis, but not on these other terms that are in there that have no foundation in the DSM.

[00:10:41] Speaker 02:
A regulation key to negligence would be unconstitutionally vague.

[00:10:46] Speaker 01:
Absolutely not.

[00:10:47] Speaker 01:
That is a standard that has a developed legal meaning.

[00:10:50] Speaker 01:
It is not precise.

[00:10:51] Speaker 02:
It may be vague at the margins, but... Well, the regulation itself refers in one iteration to accepted standards of the community.

[00:11:00] Speaker 02:
That's what negligence is.

[00:11:03] Speaker 01:
But we don't see folks trying to apply it in that way.

[00:11:07] Speaker 02:
And we certainly, it does not make sense to get mental health opinions such as was done in Mr. Bowling's case about whether or not... Your folks don't see it each way is your argument that there, in your view, there is wildly inconsistent application of the regulation at the RO level?

[00:11:24] Speaker 02:
Is that your argument?

[00:11:26] Speaker 04:
That is one piece of it.

[00:11:27] Speaker 04:
Can I just ask on that?

[00:11:29] Speaker 04:
We haven't really talked about your lead argument about the record, and you're about to run into rebuttal.

[00:11:37] Speaker 04:
You obviously think that this non-record material is significant to the evaluation of facial fakeness.

[00:11:47] Speaker 04:
That's, in fact, your argument.

[00:11:48] Speaker 04:
So why would it not fit within the normal

[00:11:53] Speaker 04:
record and exhaustion rule to say go to the fact forum to develop that evidence to get responses to the evidence both criticism of your evidence and contrary evidence even if the BVA could not say and therefore this is unconstitutional on its face.

[00:12:18] Speaker 01:
That falls into the futility exception.

[00:12:21] Speaker 04:
Why is developing a record on material that your own argument says is highly relevant to the ultimate disposition futile?

[00:12:31] Speaker 01:
Because the fundamental question is, is VA exhibiting a pattern of arbitrary decision making?

[00:12:38] Speaker 01:
That's not a fact personal to Mr. Bowling.

[00:12:40] Speaker 01:
That's not a fact personal to Mr. Appling.

[00:12:43] Speaker 01:
And the VA cannot sit in judgment of itself as to whether it is being arbitrary.

[00:12:48] Speaker 02:
The BVA is not going to rule on the issue anyhow.

[00:12:52] Speaker 01:
Exactly.

[00:12:52] Speaker 02:
They're not going to rule on it.

[00:12:53] Speaker 02:
But haven't we already crossed that bridge in Ledford?

[00:12:57] Speaker 02:
No.

[00:12:57] Speaker 02:
Why didn't Ledford says he would present the claim to the BVA?

[00:13:03] Speaker 01:
Well, Ledford was a case where there was actual fact-finding within the realm of the board that was relevant to the determination.

[00:13:10] Speaker 02:
Well, I understand that.

[00:13:11] Speaker 02:
But I mean, the question, the argument was that clearly in the opinion it says, you know, you should present your, even though there's futility, even though the BVA can't decide the merits of the challenge, constitutional challenge,

[00:13:23] Speaker 02:
make your record there.

[00:13:25] Speaker 02:
Didn't we just reiterate that in Wolf?

[00:13:29] Speaker 04:
Wolf, I think... I know the context is different.

[00:13:33] Speaker 01:
Yeah, the context is different.

[00:13:34] Speaker 04:
I thought it expressly says, Ledgier, whatever it is, and a few other cases.

[00:13:42] Speaker 04:
In fact, even if the agency can't invalidate the thing, if there are factual questions, you make the record there so that the next level, where invalidation is possible, will actually have the record.

[00:13:55] Speaker 01:
So I think Eusebio is the case that's on point, which recognizes that the record... That's a very special circumstance, right?

[00:14:02] Speaker 04:
Where basically on the shelf of the BVA examiners, of the BVA judges, is this congressionally mandated report.

[00:14:11] Speaker 01:
So yeah, and the underserved report that we cite is on the shelf of the BVA.

[00:14:16] Speaker 01:
They were trained on it.

[00:14:17] Speaker 01:
That's not in the record, but I know that to be true.

[00:14:19] Speaker 01:
But ultimately, the question is, what is the purpose actually served other than to frustrate veterans who use the American Legion as their rep, like Mr. Appling, or VFW as a rep, and say, sorry, you have an attorney.

[00:14:33] Speaker 01:
The board can do nothing for you, but you have to start over, lose your effective date, take five years, put this in the record for the board to say, yep, sorry, we see it, but we're not going to do anything, and then come back to the court and be the exact same position.

[00:14:47] Speaker 01:
What is served by that, other than to penalize the overwhelming majority of veterans who don't have attorneys to help them develop records for constitutional arguments, whose representatives know how to prove individual claims, but aren't going to submit this type of record evidence?

[00:15:03] Speaker 04:
You have just run out of all your time.

[00:15:06] Speaker 04:
But we'll give you the rebuttal time back.

[00:15:09] Speaker 04:
But we should hear from the other side.

[00:15:11] Speaker 04:
Thank you, Your Honor.

[00:15:14] Speaker 00:
Thank you, Your Honor.

[00:15:15] Speaker 00:
May it please the court?

[00:15:17] Speaker 00:
As the court is aware, this is an appeal of a Veterans Court decision.

[00:15:20] Speaker 00:
There are essentially two topics of discussion.

[00:15:23] Speaker 00:
One relates to this issue of extra record evidence and how the Veterans Court dealt with it, and the arguments my friend on the other side now raises here in appeal for the first time.

[00:15:32] Speaker 00:
And the second issue relates to an attempt to facially invalidate under the due process clause of the Constitution a longstanding VA regulation.

[00:15:41] Speaker 00:
I noticed that the court's questions mostly centered on the due process of questions, so I'll focus my remarks on that issue first.

[00:15:50] Speaker 04:
Why don't you start with the record?

[00:15:52] Speaker 00:
Oh, certainly, Your Honor.

[00:15:54] Speaker 00:
As to the extra record issue, my friend on the other side argues in favor of a broad

[00:15:59] Speaker 00:
indiscriminate exemption to record-based limits for the Veterans Court when it comes to constitutional challenges to VA rules, laws, or regulations.

[00:16:08] Speaker 02:
Could I ask a question up front?

[00:16:11] Speaker 02:
Does court have any inherent authority to entertain information that doesn't satisfy judicial notice requirements under the federal rules or isn't of record below?

[00:16:26] Speaker 00:
The only two exceptions I'm aware of, and I'm not even sure they're separate exceptions.

[00:16:32] Speaker 00:
One is judicial notice, which I think is recognized.

[00:16:34] Speaker 00:
Yeah, I know that.

[00:16:35] Speaker 00:
The other might be Eusebio, which I think considered it constructive record evidence, although I think it might have discussed even that exception in the context of judicial notice.

[00:16:44] Speaker 02:
What popped into my mind when I was reading this was the so-called Brandeis briefs that were filed in the first Michigan

[00:16:52] Speaker 02:
I think it was a law school affirmative action case, Greta against Bollinger.

[00:16:57] Speaker 02:
And my recollection, which was proven by going back and looking at it, is that Justice O'Connor's opinion relied on, in making her decision, on amicus briefs that were filed in connection with that case.

[00:17:14] Speaker 00:
Right.

[00:17:14] Speaker 02:
Non-record evidence.

[00:17:16] Speaker 00:
Right.

[00:17:16] Speaker 00:
I do think you see a lot of spatial constitutional challenges

[00:17:23] Speaker 00:
dealing with some type of evidence in that context, like for example, Brown v. Board of Education.

[00:17:28] Speaker 02:
Well, that's what I'm trying to get at.

[00:17:29] Speaker 02:
We have a facial challenge here, right?

[00:17:32] Speaker 00:
Right.

[00:17:33] Speaker 02:
And I was just stunned when I went back and looked at Justice O'Connor's opinion.

[00:17:38] Speaker 02:
where it's just clear that she's relying on the numerous studies that were also manifold amicus briefs were filed in that case.

[00:17:46] Speaker 00:
Right.

[00:17:46] Speaker 00:
And I do think that's sort of in a different context.

[00:17:48] Speaker 02:
Because it's the Supreme Court?

[00:17:50] Speaker 00:
Because it's in the amicus context.

[00:17:51] Speaker 00:
I suppose friends of the court can submit information for the courts.

[00:17:55] Speaker 04:
I'm sorry, if the court's going to rely on the information, surely parties can too.

[00:18:02] Speaker 04:
They're the only ones, except for the government, that gets to stand up and argue about this.

[00:18:05] Speaker 00:
Right.

[00:18:05] Speaker 00:
I think the one restriction, though, is statutory, right?

[00:18:08] Speaker 00:
So we're dealing with 7252B, which outlines what the Veterans Court can consider.

[00:18:13] Speaker 00:
And so that's what we're relying on.

[00:18:14] Speaker 02:
Well, that's basically a codification of the record rule.

[00:18:17] Speaker 00:
Right.

[00:18:18] Speaker 00:
It is correct.

[00:18:18] Speaker 00:
So we're relying on that language to say that it limits the Veterans Court's review to what's in the record subject to... I mean, it's a matter of administrative law.

[00:18:29] Speaker 02:
If you didn't have it written in 7252, you'd be citing the APA.

[00:18:35] Speaker 02:
And Congress has mandated that you are restricted to the record.

[00:18:39] Speaker 00:
Right, I mean, but in this case, we do have a specific statute promulgated through the VJRA that does expressly limit the Veterans Court's review to- Well, I just wondered whether there isn't some authority, because there are due process considerations.

[00:18:53] Speaker 02:
If Justice O'Connor, for example, had gone out and solicited all this information in her own chambers and never given anybody a chance to look at it and never relied on it, you'd have issues.

[00:19:02] Speaker 00:
I agree.

[00:19:03] Speaker 00:
I mean, it's a fair question.

[00:19:04] Speaker 00:
It's sort of an interesting question.

[00:19:05] Speaker 00:
I don't know that the court has to go that far.

[00:19:08] Speaker 00:
I think if we just kind of apply the text of the statute to this particular case, we get the result here, which is- Well, didn't the CAVC actually look at the subject information anyhow and conclude that it wasn't probative?

[00:19:21] Speaker 00:
Yes, it did.

[00:19:21] Speaker 02:
So that's sort of weird because- Does that moot out all these legal questions?

[00:19:25] Speaker 00:
Right.

[00:19:25] Speaker 00:
And so that kind of- it first said, we're not going to take judicial notice of the information.

[00:19:29] Speaker 02:
He's not arguing for judicial.

[00:19:31] Speaker 00:
Right, he's not arguing for judicial, judicial, judicial.

[00:19:33] Speaker 00:
So that's off the table?

[00:19:34] Speaker 00:
On the second hand, it did say, well, like, we don't also find it persuasive because we don't see the link to the argument.

[00:19:40] Speaker 04:
How are we supposed to review that?

[00:19:41] Speaker 04:
We don't even have this material.

[00:19:43] Speaker 00:
I agree.

[00:19:43] Speaker 00:
I mean, I don't think the court has to even get there.

[00:19:45] Speaker 00:
But I do think it kind of informs this idea.

[00:19:49] Speaker 00:
If my friend's argument on the other side is that it was so persuasive that it's going to change things below and this court were to be mad.

[00:19:55] Speaker 02:
We can't get at it at all.

[00:19:57] Speaker 02:
What happens if a judge at the CABC manufactures some evidence and puts it in and relies on it?

[00:20:09] Speaker 02:
And it's proven that the evidence is made up out of whole cloth.

[00:20:13] Speaker 02:
Does it bar on us looking at facts, prohibit us from doing anything about that?

[00:20:18] Speaker 00:
Right.

[00:20:18] Speaker 00:
One question that sticks in my mind is whether that's an application of law to fact that's barred from review in this court, or whether it's reviewed for abuse of discretion under typical appellate standards.

[00:20:30] Speaker 00:
I think we argued in our brief that it is application of law to fact barred from review.

[00:20:34] Speaker 00:
There is an argument to be made.

[00:20:35] Speaker 04:
Even on a constitutional question?

[00:20:37] Speaker 00:
I'm just squarely talking about the evidentiary issue, the extra record.

[00:20:42] Speaker 02:
But in the context of this case, this is a constitutional case, so we can review factual issues.

[00:20:48] Speaker 00:
So my understanding of that rule is that

[00:20:52] Speaker 00:
The court, this court can do fact-finding, but it doesn't expand the record even in constitutional cases.

[00:20:58] Speaker 02:
Can we do fact-finding or can we review facts into whether or not there was substantial evidence or any basis for the fact?

[00:21:05] Speaker 00:
Right.

[00:21:05] Speaker 00:
And so I think that's the point I'm trying to make is this court is enabled.

[00:21:08] Speaker 02:
We can't do fact-finding in the first instance.

[00:21:12] Speaker 00:
My understanding of the statute is that under 7292 subpart D, the court can go back to the record, which is already a defined universe pursuant to 7252, and review the record to do fact finding on constitutional claims.

[00:21:27] Speaker 00:
But it can't basically jettison the record requirement to consider all sorts of extra record information.

[00:21:32] Speaker 00:
So that's the way I view that.

[00:21:34] Speaker 00:
limitation in subpart D2.

[00:21:36] Speaker 00:
Even though the court is unable to review constitutional claims, it doesn't get to redefine what the record is below.

[00:21:42] Speaker 00:
It's still circumscribed.

[00:21:43] Speaker 00:
The fact-finding is still circumscribed.

[00:21:45] Speaker 02:
But if in this case, if the CAVC had entertained on the merits the information that was being supplied that didn't satisfy judicial notice, and they had relied on it in their decision, because it's a constitutional case, we would be able to assess

[00:22:02] Speaker 02:
the extent of their reliance and the reason for it on that data, correct?

[00:22:08] Speaker 00:
I think if the court were to declare that the judicial notice finding were improper, which, again, isn't being challenged here.

[00:22:17] Speaker 02:
We just assume, for purposes of argument, that judicial notice is off the table.

[00:22:21] Speaker 00:
Right.

[00:22:22] Speaker 00:
And then we get to the second question.

[00:22:23] Speaker 00:
Because the Veterans Court did offer an opinion on the persuasiveness of the evidence,

[00:22:30] Speaker 02:
I was asking more in a hypothetical sense because I'm saying to myself what's the harm to

[00:22:38] Speaker 02:
The proposed rule, which is that the CAVC ought to always allow this stuff in, and he has a certain number of policy arguments because of veterans that don't have enough money to do this at the BVA, et cetera, et cetera.

[00:22:51] Speaker 02:
So I'm saying to myself, what's the problem if we let this evidence come in, require the CAVC to either accept it, reject it, use it, not use it, and then it comes up on appeal to us?

[00:23:04] Speaker 02:
We then can monitor

[00:23:06] Speaker 02:
the propriety of the use or misuse of that information by the CAVC, right?

[00:23:14] Speaker 00:
I think the problems are twofold.

[00:23:16] Speaker 00:
Number one is statutory regarding the record rules, the record-based limits ascribed by Congress.

[00:23:22] Speaker 00:
The second would be policy-oriented.

[00:23:25] Speaker 00:
I'm not sure how much sense it makes to allow claimants to start introducing vast troves of extra record evidence at the Veterans Court appellate level and then having... They should wait until the case goes to the Supreme Court.

[00:23:41] Speaker 00:
I presume if we're talking about the amicus context, then...

[00:23:47] Speaker 00:
Yeah, the evidence could be submitted through an amicus or something like that.

[00:23:52] Speaker 02:
Take it out of the context of facial challenges and put it in as applied challenges.

[00:23:57] Speaker 00:
I'm sorry.

[00:23:58] Speaker 02:
I'm thinking in a global way about this problem.

[00:24:01] Speaker 02:
Well, what happens if we consider the possibility of as applied challenges?

[00:24:05] Speaker 02:
I would think lots of veterans could, with the assistance of counsel, gin up some non-frivolous

[00:24:13] Speaker 02:
as applied arguments to how the VA functions with its regulations.

[00:24:19] Speaker 02:
I've been at it long enough, and you as well know that.

[00:24:22] Speaker 02:
And so in time, we may see lots of as-applied constitutional challenges.

[00:24:29] Speaker 02:
And you have the problem of the board can't do anything about it.

[00:24:33] Speaker 02:
The evidence has to come in somewhere.

[00:24:36] Speaker 02:
And in an applied case, you'd have all sorts of factual information

[00:24:41] Speaker 02:
different from typical information that goes in a claim space.

[00:24:46] Speaker 00:
Right.

[00:24:49] Speaker 00:
So I think what Judge Clevenger, you're getting at is if the information can come in in the as applied context,

[00:25:00] Speaker 00:
which I think makes more sense for, you know, an individual claims environment, which, you know.

[00:25:05] Speaker 02:
Well, it makes more sense for somebody to bring it in as a challenge.

[00:25:08] Speaker 02:
I agree.

[00:25:08] Speaker 02:
So they are going to flood the BVA with this information, I guess, right?

[00:25:13] Speaker 00:
Right.

[00:25:13] Speaker 00:
But that is the position we would endorse, is that if you're going to preserve the argument, you have to populate the record evidence before you appeal before the Veterans Court.

[00:25:24] Speaker 00:
Now, I understand kind of the practical implications of, well, you know, the veteran.

[00:25:29] Speaker 02:
In the as applied situation, much of the information that would go into the database at the BVA is both pertinent to the merits of the claim.

[00:25:39] Speaker 02:
Correct.

[00:25:40] Speaker 02:
As well as to the merits of the constitutional claim.

[00:25:43] Speaker 00:
Correct.

[00:25:43] Speaker 00:
I think it would be dual nature.

[00:25:45] Speaker 00:
Correct.

[00:25:46] Speaker 00:
I think that's right.

[00:25:46] Speaker 04:
If the record was being developed in the BVA, is that an adversarial proceeding?

[00:25:53] Speaker 04:
So that if Mr. Ridgeway is before the BVA and he puts in these law reviews and this other material, is there somebody, let's call it the government, that is on the other side to say, here are all the reasons that this evidence doesn't mean what

[00:26:10] Speaker 04:
what the veteran says it means, and here's contrary evidence?

[00:26:14] Speaker 04:
Or are we in the unusual situation where you're talking about going to a forum in which, aside from everything else, I mean, aside from the fact that they have fact-finding power, there is not actually an adversarial proceeding?

[00:26:31] Speaker 00:
Right.

[00:26:31] Speaker 00:
My understanding is that at the board level, it's not adversarial.

[00:26:35] Speaker 00:
I understand that the veteran can hire an attorney or a veteran's representative even at the board level.

[00:26:40] Speaker 02:
But it's still the duty to assist concept.

[00:26:45] Speaker 02:
It's still in place.

[00:26:45] Speaker 04:
I think it still all comes into play.

[00:26:47] Speaker 04:
But a typical vagueness challenge has to start with it's vague as applied, but that can be accompanied by

[00:26:58] Speaker 04:
vague on its face.

[00:27:00] Speaker 04:
Suppose the veteran to the BVA says I'm making both arguments and on the facial part I've got a bunch of the kind of evidence that the appellants here tried to submit to the veterans court.

[00:27:16] Speaker 04:
Is there a process before the BVA in which the BVA can

[00:27:20] Speaker 04:
say, I don't know, to the Justice Department, to the General Counsel's Office, to somebody in the Department of Veterans Affairs.

[00:27:33] Speaker 04:
There's a regulation under attack.

[00:27:34] Speaker 04:
A record is being made.

[00:27:36] Speaker 04:
We think it's very important that the record be developed fully on the facial part, so that when it goes to the Veterans Court, there's a record to evaluate this.

[00:27:48] Speaker 04:
Will somebody please?

[00:27:50] Speaker 04:
So whoever has an interest in defending the regulation, take this on.

[00:27:55] Speaker 00:
That's a good question, Judge Toronto.

[00:27:57] Speaker 00:
I don't know.

[00:27:58] Speaker 00:
I don't know the answer to that.

[00:28:00] Speaker 00:
It's a fascinating question.

[00:28:02] Speaker 00:
I think probably what would happen is no.

[00:28:07] Speaker 00:
And I think what would happen at the next level, assuming that it did proceed to the next level, is that information could be populated on the record through a judicial notice type exception.

[00:28:18] Speaker 00:
But it would be public government data that meets federal rule of evidence 201 standards.

[00:28:25] Speaker 00:
my understanding or my thinking of how that issue would be addressed.

[00:28:29] Speaker 00:
I don't know the precise answer to that specific question.

[00:28:31] Speaker 00:
I'm sorry.

[00:28:34] Speaker 00:
If there are no other questions on the extra record issue, we first of all think the argument is waived.

[00:28:39] Speaker 00:
This is not the argument that my friend on the other side raised below.

[00:28:42] Speaker 00:
I understand it's an interesting kind of statutory argument.

[00:28:46] Speaker 00:
Judge Toronto, as you mentioned, this futility argument was rejected in Wolfe.

[00:28:50] Speaker 00:
It was rejected in Ledford.

[00:28:52] Speaker 04:
We think that authorities... But I'm beginning to wonder whether the

[00:29:00] Speaker 04:
I'm just going to think.

[00:29:01] Speaker 04:
The especially limited nature of the process in front of the BVA, namely there's no adversary, whether that makes it, I don't know, singularly inappropriate to say that that's the right place to develop a record with the usual full adversarial process because it doesn't exist.

[00:29:23] Speaker 00:
I understand that concern.

[00:29:25] Speaker 04:
Maybe it can exist, but you've put a pin saying not sure about that.

[00:29:31] Speaker 00:
Right.

[00:29:31] Speaker 00:
I'm not totally sure.

[00:29:33] Speaker 00:
I think one thing, though, is that we're still going back to our waiver argument, which is the argument wasn't raised below.

[00:29:41] Speaker 00:
even if we're talking about that universe.

[00:29:44] Speaker 00:
I think it makes sense if you're bringing in as-applied challenge where there is specific evidence in relation to your specific claim, and then you're bringing add-on or follow-on, facial constitutional challenge.

[00:29:56] Speaker 00:
You don't run into

[00:29:57] Speaker 00:
kind of this environment of whether the individual claims environment is appropriate to adjudicate a facial constitutional challenge.

[00:30:05] Speaker 00:
But even then, I think what you would get if you brought that as applied challenge is you would get the record populated with an understanding of how the regulation was applied with respect to the individual.

[00:30:19] Speaker 04:
Well, what you'd get is a one-sided population of the record.

[00:30:24] Speaker 00:
That would be odd.

[00:30:25] Speaker 00:
Well, you would get an examiner's notations about, for example, if we go to the record here with respect to bowling, you see that- No, no.

[00:30:34] Speaker 04:
I'm only talking about the record that, by assumption, Mr. Ridgway thinks is relevant to the facial vagueness challenge, not the record that would be relevant to whether the particular circumstances of these individuals

[00:30:53] Speaker 04:
present a vagueness problem.

[00:30:58] Speaker 04:
What to make of the Ohio versus Indiana difference that was talked about.

[00:31:04] Speaker 04:
And maybe there's statistics that when you look more broadly, turns out that that problem sort of, the significance of that disparity dissolves.

[00:31:12] Speaker 04:
Who's going to go and find those other statistics?

[00:31:17] Speaker 00:
I think we're just talking about the population of the record issue.

[00:31:20] Speaker 00:
I do think at the Veterans Court level, though, for example, let's use this case as an example.

[00:31:26] Speaker 00:
My friend on the other side tried to introduce a bevy of extra record evidence saying that the data represented a thing.

[00:31:31] Speaker 00:
If it were on the record and it got to the Veterans Court, both sides could argue about what that data means, for example.

[00:31:38] Speaker 00:
And they wouldn't have to engage

[00:31:39] Speaker 00:
I don't think the record-building process is innately adversarial.

[00:31:44] Speaker 00:
I think it's just building the record about what's relevant, what can the adjudicator consider.

[00:31:48] Speaker 00:
And then once it's populated, both sides can reference that evidence.

[00:31:52] Speaker 00:
Now, if it needs to be supplemented through principles of judicial notice because some of the information or the accuracy of that information is questionable, then I do think the government probably would add on information and say, we can't trust these bar graphs.

[00:32:06] Speaker 02:
Well, Ledford and Woke,

[00:32:08] Speaker 02:
in essence, allow the veteran to put the thumb on the scale in the beginning by putting into the BVA whatever they want to put in.

[00:32:15] Speaker 02:
And so that's, in a way, pro-veteran lets them put in everything they think is pertinent and then the pertinence

[00:32:22] Speaker 02:
of that information gets ventilated at the CAVC, which turns into a fact-finder?

[00:32:27] Speaker 00:
Right.

[00:32:28] Speaker 00:
I mean, all we're doing is just building the record, right?

[00:32:30] Speaker 00:
And what the claimant thinks, giving them kind of the opportunity to build what's relevant to developing this particular claim.

[00:32:36] Speaker 00:
And then once that universe is built, the parties, when it does become adversarial, they argue based on it.

[00:32:43] Speaker 00:
I see them over my time.

[00:32:44] Speaker 00:
I'd just like to make one added statement, if that's OK.

[00:32:47] Speaker 00:
The one thing that I would add is that this idea of,

[00:32:53] Speaker 00:
allowing the Veterans Court to entertain facial constitutional challenge in the first instance and consider a bevy of record information in the first instance, I think would create a lot of delays and potential backlogs in the system in how these cases are adjudicated.

[00:33:07] Speaker 00:
We think the statute governs this scenario.

[00:33:09] Speaker 00:
We respectfully request the court affirm the decision of the next court.

[00:33:12] Speaker 00:
Thank you.

[00:33:15] Speaker 01:
I want to make three quick points in response.

[00:33:18] Speaker 01:
First, the CAVC did not give the evidence a proper way.

[00:33:23] Speaker 01:
They applied a judicial notice standard to say we cannot engage in speculation rather than applying the ordinary rule of we can draw reasonable inferences.

[00:33:32] Speaker 01:
Most cases are not smoking gun cases.

[00:33:35] Speaker 01:
I was a prosecutor in Chicago for five years.

[00:33:37] Speaker 01:
Most ordinary cases are built up of lots of little pieces

[00:33:41] Speaker 01:
that you have to put together on the side of the scale and weigh it against everything else.

[00:33:46] Speaker 01:
The CAVC didn't do that.

[00:33:48] Speaker 01:
They said, this, we cannot take judicial notice of anything except for- Are you now appealing the judicial notice point?

[00:33:55] Speaker 02:
So we're- I mean, in your rebuttal, because in your brief, you said that's not, you concede that that's not in the case.

[00:34:02] Speaker 02:
Our argument all along is- I don't understand what the point of this, what you're telling us now.

[00:34:07] Speaker 01:
So judicial notice isn't the right framework.

[00:34:11] Speaker 01:
There's no waiver because we didn't have to come and ask permission for the court to take notice of this.

[00:34:17] Speaker 01:
If this were a two-step process where first we had to have permission through judicial notice, we didn't ask for it and that would be waived.

[00:34:24] Speaker 01:
Our argument is this is not a waiver case.

[00:34:26] Speaker 01:
And this isn't even like Eusebio.

[00:34:28] Speaker 01:
This is a very unique situation under the Constitution where the initial finding of fact belongs to the CAVC

[00:34:36] Speaker 01:
as to whether the agency engages in arbitrary decision making based upon a statute that has no identifiable meaning.

[00:34:48] Speaker 01:
The question of whether or not Agent Orange causes hypertension, that's a question within the province of the board.

[00:34:54] Speaker 01:
And if you want to submit a lot of articles, you still have to submit them to the board because it is the board's job to find out.

[00:35:01] Speaker 01:
Our argument is that the board cannot sit in judgment of itself.

[00:35:06] Speaker 01:
VA cannot sit in judgment of itself and have the CAVC give deference.

[00:35:11] Speaker 01:
So that brings me back to the record question.

[00:35:14] Speaker 01:
The record rule is not jurisdictional.

[00:35:16] Speaker 01:
It's a procedural rule.

[00:35:18] Speaker 01:
We know procedures can be waived when it doesn't make sense to apply them, or they can just be not applied.

[00:35:24] Speaker 01:
And we know it doesn't make sense, because none of the government's proposals make any sense.

[00:35:28] Speaker 01:
It can't be that the government has to come in and submit all of its contradictory evidence at the agency level in an adversarial proceeding.

[00:35:36] Speaker 04:
It can't be.

[00:35:37] Speaker 04:
Why can't that be?

[00:35:39] Speaker 01:
Because then it's an adversarial proceeding.

[00:35:40] Speaker 01:
First of all, there is no representative to do the work.

[00:35:44] Speaker 04:
And your understanding is you also think that the government, somehow or other, the government couldn't do that?

[00:35:53] Speaker 01:
Couldn't do that at the agency level.

[00:35:56] Speaker 01:
The proper place to rebut the evidence is at the court level where the initial fact finding is done.

[00:36:02] Speaker 01:
They had the opportunity here and did not take advantage of it.

[00:36:06] Speaker 01:
They focused on reasons why the court shouldn't get to the merits.

[00:36:10] Speaker 01:
But even then, it still doesn't make sense to say, oh, the veterans have to submit everything first.

[00:36:16] Speaker 01:
They're not bound by the standards of judicial notice.

[00:36:19] Speaker 01:
They can submit any relevant evidence.

[00:36:20] Speaker 01:
And then you go to the Veterans Court, where the government is restricted to judicial notice, and the veterans have no opportunity to rebut the evidence submitted by the government, which they never saw at the agency level.

[00:36:32] Speaker 01:
Like, that can't possibly be the process either.

[00:36:34] Speaker 01:
None of that makes sense as a fair way to adjudicate claims.

[00:36:38] Speaker 01:
We're saying that the rational way is when the issue is not within the province of VA, not within the province of VA, which is very rare.

[00:36:48] Speaker 04:
And I don't know of any situations other than constitutional ones where we're arguing that- Would expert analysis of the statistics play any role in evaluating the material?

[00:37:02] Speaker 01:
I think that it would be an ordinary piece of potentially relevant evidence that one could submit, but it is not a requirement.

[00:37:12] Speaker 04:
And if somebody submitted an expert analysis, the CAVC is going to put the expert on the witness stand?

[00:37:21] Speaker 01:
So the CVC doesn't have a process for considering things by witness.

[00:37:30] Speaker 01:
But the VA system generally is a system where things are adjudicated on the paper.

[00:37:36] Speaker 01:
But maybe it's not an ideal system.

[00:37:38] Speaker 01:
But again, it can't possibly be that if we have an adversarial proceeding below,

[00:37:45] Speaker 01:
in order to make a record, because that is certainly not the system intended by Congress.

[00:37:50] Speaker 01:
And there's no mechanism even in place for the board to say, whoops, time out.

[00:37:53] Speaker 01:
This is an adversarial proceeding.

[00:37:55] Speaker 01:
I've got to call in a government attorney to litigate this and turn this into a trial where the service organization rep.

[00:38:01] Speaker 03:
It's clear to conclude here that the burden you have is a heavy one in which you have to demonstrate that the regulation is impermissibly vague in all its applications.

[00:38:13] Speaker 03:
What is it that you think that this extra record evidence can do to reach that level of approval?

[00:38:22] Speaker 01:
First, I dispute the premise.

[00:38:24] Speaker 03:
I know.

[00:38:25] Speaker 01:
We don't have to prove it's vague in all applications.

[00:38:28] Speaker 01:
I know.

[00:38:29] Speaker 03:
But if that is the standard, if we conclude that is the correct standard to apply here, because that's the standard that's been applied in other situations, then what is it about this extra record evidence that can establish that?

[00:38:41] Speaker 01:
So I don't think it was the standard that was applied in Holmes or Wickequa.

[00:38:46] Speaker 01:
I apologize.

[00:38:47] Speaker 01:
We're out of time.

[00:38:48] Speaker 01:
The evidence is that this language has no ordinary lay meaning.

[00:38:55] Speaker 01:
It has no ordinary technical medical meaning, as we've seen from the Grableman article, and how the VA itself has no training and the VA examiner have no way to make this connected to a medical standard.

[00:39:08] Speaker 01:
It has no ordinary legal standard.

[00:39:11] Speaker 01:
The primary data evidence shows inconsistency.

[00:39:14] Speaker 01:
And the secondary sources, such as Adams and Maltalto, who have looked at this, have said they don't even attempt to apply this language from the regulation.

[00:39:22] Speaker 01:
What they do is they apply a criminal insanity standard, because that's what they understand.

[00:39:26] Speaker 01:
So in conclusion, your honors, we're not saying that everybody who put the uniform on is entitled to benefits.

[00:39:38] Speaker 01:
What we're saying is that Congress intended

[00:39:41] Speaker 01:
that people who are not responsible for their behavior get benefits.

[00:39:45] Speaker 01:
And every citizen is entitled to have questions like that decided under a standard that gives actual notice and does not delegate impermissible, subjective, ad hoc discretion to adjudicators, which is what all the evidence suggests is happening here.

[00:40:02] Speaker 01:
Thank you very much.

[00:40:04] Speaker 04:
Thank you.

[00:40:04] Speaker 04:
Thanks to both counsel.

[00:40:05] Speaker 04:
The case is submitted.