[00:00:00] Speaker 03:
1757 scar versus McDonough you miss Bay please proceed may it please the court

[00:00:14] Speaker 02:
Despite the multitude of issues raised, the decision in this appeal should come down to one simple issue.

[00:00:20] Speaker 02:
And that is that the Veterans Court committed reversible legal error when it exceeded the clearly delineated jurisdictional requirements of Section 7252 by certifying a class of veterans who have, by and large, not met the requirement to have a board decision and therefore do not come within the narrow jurisdictional reach of the Veterans Court.

[00:00:44] Speaker 02:
I think it's clear from the Supreme Court, the case law of this court, the language of the statute, and even the Veterans Court's concession that 7252 is jurisdictional.

[00:00:55] Speaker 02:
And it's axiomatic that you cannot create exceptions, equitable or otherwise, to jurisdictional requirements.

[00:01:01] Speaker 02:
Yet that is exactly what the Veterans Court did when it included the present future and future future claimants within the certified class.

[00:01:09] Speaker 02:
even though they lacked the jurisdictionally mandated board decision.

[00:01:12] Speaker 03:
So does this case come down, for example, to the fact that the Veterans Court, unlike district courts, doesn't have supplemental jurisdiction under 1367?

[00:01:23] Speaker 02:
That's part of it, certainly.

[00:01:25] Speaker 02:
The district courts and the APA cases that Mr. Scores' team cites rely on 1331 and the supplemental jurisdiction statute.

[00:01:35] Speaker 02:
The Veterans Court has only one source of jurisdiction, and that's in 7252.

[00:01:40] Speaker 02:
And there is no supplemental jurisdiction statute that I'm aware of.

[00:01:45] Speaker 03:
Sorry to get you to put your pen down.

[00:01:48] Speaker 03:
Oh, sorry.

[00:01:48] Speaker 03:
That's OK.

[00:01:48] Speaker 03:
Sorry.

[00:01:49] Speaker 03:
I didn't mean to distract you.

[00:01:51] Speaker 03:
So the Veterans Court doesn't have supplemental jurisdiction the way district courts do.

[00:01:56] Speaker 03:
And that has generally been the basis, that supplemental jurisdiction, for why district courts are allowed to certify classes of future claimants.

[00:02:05] Speaker 02:
That's exactly it.

[00:02:06] Speaker 02:
And Mr. Skor analogizes to the APA, but the APA and the VJRA are very different, namely in that the APA is not a jurisdictional statute, but rather just tells the court what it can and can't do.

[00:02:21] Speaker 02:
But it doesn't rely on the APA for jurisdiction, whereas the VJRA came after the APA and includes the specifically jurisdictional statute 7252.

[00:02:32] Speaker 02:
Congress was presumably aware of the existing law at the time and was aware of the APA and that it could certify future oriented classes, yet it still included and titled section 7252, jurisdictional.

[00:02:46] Speaker 02:
Therefore, there is simply no way

[00:02:48] Speaker 02:
to waive that requirement or create an exception for it.

[00:02:53] Speaker 02:
And the Veterans Court erred when it invoked the Supreme Court line of social security cases, primarily Bowen.

[00:03:00] Speaker 02:
We're not saying it erred in relying on the social security cases.

[00:03:04] Speaker 02:
405G and the discussion in Salfi and Eldridge are on point.

[00:03:10] Speaker 02:
But for some reason, the Veterans Court relied on Bowen and just assumed either that Mr. Score opened a jurisdictional door, and therefore the other claimants could maybe vicariously exhaust, or it presumed that the requirements of 7252 were waivable and then went through the exhaustion factors.

[00:03:30] Speaker 02:
But the exhaustion factors are not relevant when you're dealing with a jurisdictional statute such as 7252.

[00:03:39] Speaker 02:
The other source of authority that Mr. Scar primarily invokes, and I think maybe he stepped away a little bit from that in his 28-J response, is the AWA and this court's decision in Monk.

[00:03:51] Speaker 02:
The Veterans Court also relied on the decision in Monk, but we don't read Monk to say or even imply that the Veterans Court can

[00:04:03] Speaker 02:
use statutory authority, inherent powers, pre-VJRA class actions in order to stretch or expand the jurisdictional boundaries.

[00:04:12] Speaker 02:
Rather, we read monk to mean that the Veterans Court is not per se prohibited from having class actions, and that particularly in the AWA context,

[00:04:21] Speaker 02:
that class actions have a utility that regular cases don't.

[00:04:25] Speaker 05:
But we think that both the Veterans Court and... Is that because a mandamus petition doesn't necessarily require a final board decision?

[00:04:35] Speaker 02:
That's a very large part of it, Your Honor.

[00:04:37] Speaker 02:
The AWA...

[00:04:38] Speaker 02:
governs a mandamus petition and governs what happened in Monk.

[00:04:43] Speaker 02:
And the AWA allows the court to issue a writ as necessary and appropriate in aid of its prospective jurisdiction.

[00:04:51] Speaker 02:
That's not the same thing as 7252, which governs regular appeals and requires.

[00:04:56] Speaker 03:
But even in an AWA case, are we really allowed to certify a class that includes future claimants

[00:05:07] Speaker 03:
I understand that it may obviate the need for final decision, but are we really allowed to certify a class under those circumstances for people who didn't even file a case?

[00:05:19] Speaker 02:
I think that the court's recent decision in Wolfe would guide against that.

[00:05:23] Speaker 02:
I believe the court said in Wolfe that

[00:05:28] Speaker 02:
that mandamus does not aid prospective jurisdiction where a party has not initiated any proceeding whatsoever.

[00:05:35] Speaker 02:
And that came to class members who never filed claims with VA.

[00:05:39] Speaker 02:
And so Wolf would guide that if the court doesn't even have prospective jurisdiction pursuant to mandamus over those who have initiated no proceedings whatsoever, then it certainly can't exercise actual jurisdiction over those same parties.

[00:05:54] Speaker 02:
Mr. Spohr seems to assert that the AWA is more than a corollary, but it actually governs the case at issue here.

[00:06:03] Speaker 02:
But I just wanted to point out quickly that

[00:06:07] Speaker 02:
The court never issued a writ.

[00:06:09] Speaker 02:
Mr. Skor never asked for a writ.

[00:06:11] Speaker 02:
So the AWA cannot completely govern what comes here.

[00:06:15] Speaker 02:
And even using it as an analog or a corollary, Monk and Wolfe taken together provide that although the Veterans Court has the power to certify classes, it cannot do so when it exceeds jurisdiction.

[00:06:29] Speaker 00:
Let me ask you, what in your view

[00:06:32] Speaker 00:
would be the consequences of certification of a class action.

[00:06:37] Speaker 00:
Would it be any more than saying that if you were exposed, if you were there, there is a certain presumption?

[00:06:46] Speaker 00:
But wouldn't the veteran still then have to show that whatever the illness is, that it's the kind of illness that would flow from radiation exposure?

[00:06:58] Speaker 00:
Why would it be any different than a precedential ruling that there are medical, physiological consequences to the amount of radiation exposure at Palomaris?

[00:07:13] Speaker 02:
Well, Your Honor, that's what the dissent focused on.

[00:07:16] Speaker 02:
And as we mentioned in our briefs, when it comes to the appeal process as opposed to an AWA context, there is no great functional difference than with a presidential opinion in a matter like this.

[00:07:28] Speaker 02:
I think as the dissent pointed out, and we may have also pointed out, at any time the future future claimants could have

[00:07:36] Speaker 02:
or could still file claims.

[00:07:38] Speaker 02:
And if a decision were issued, a presidential decision in Mr. Skor's case, which it would likely be a presidential one, that would not only bind the court using a principle of stare decisis, but would actually bind VA in its actions.

[00:07:54] Speaker 02:
The regional office and the board would have to abide by whatever the Veterans Court found regarding the dose estimate methodology and applying it to Paul Amara's claim.

[00:08:03] Speaker 03:
I don't think you answered Judge Newman's question.

[00:08:04] Speaker 03:
Her question is, what's the harm?

[00:08:06] Speaker 03:
Why not allow these claimants?

[00:08:11] Speaker 03:
What's the harm?

[00:08:13] Speaker 03:
Well, Your Honor, does it open some door for them that wouldn't otherwise be open?

[00:08:19] Speaker 03:
I mean, I certainly understand with the expired or too late claimants, that's a whole different issue.

[00:08:23] Speaker 03:
But for these future possible claimants, what's the harm in letting them be part of the class?

[00:08:28] Speaker 03:
It doesn't really affect the nature of this case.

[00:08:31] Speaker 03:
Does it affect any of their potential rights?

[00:08:34] Speaker 02:
Well, it could certainly, especially because this case has no opt-out provision.

[00:08:39] Speaker 02:
We mentioned, and I think that Dissent mentioned, that there are issues with not allowing an opt-out, such as if there was a decision made in this case, that decision is not necessarily going to be favorable to Mr. Score.

[00:08:51] Speaker 02:
Despite what Mr. Scarr says, all the Veterans Court did was remand to the board to provide additional explanation for its finding on sound science.

[00:09:01] Speaker 03:
So to be clear, one of the harms, I just want to be really clear so I understand it.

[00:09:05] Speaker 03:
One of the harms would be, since the Veterans Court framed this class action with the absence of an opt-out, that whatever Mr. Scarr

[00:09:16] Speaker 03:
prevails or doesn't prevail on, unfortunately, now binds every other veteran, even the ones who haven't brought their case yet.

[00:09:22] Speaker 03:
And when it's their turn, they won't get an opportunity to make their own arguments, which could result in them prevailing, even though Mr. Scar did not.

[00:09:31] Speaker 02:
Right, exactly.

[00:09:32] Speaker 02:
And that's why a presidential decision is actually superior in a case like Mr. Scar's or potentially in the vast majority of appeals.

[00:09:40] Speaker 02:
Because it will allow future panels to draw distinctions on different facts.

[00:09:43] Speaker 02:
Exactly.

[00:09:44] Speaker 02:
I just want to spend a few minutes.

[00:09:48] Speaker 02:
I'm happy to answer any more questions that the court has on our affirmative appeal.

[00:09:51] Speaker 02:
I just want to spend a couple minutes talking about the passed and expired claimants.

[00:09:56] Speaker 05:
Can I ask you about something else?

[00:09:57] Speaker 05:
And I know this is not an issue on appeal.

[00:10:00] Speaker 05:
But because you haven't challenged the present class, but do you have any sense of how many people, assuming we agree with you on both issues, the cross appeal and the appeal, how many people are left in the present class?

[00:10:15] Speaker 02:
I believe that Mr. Skor might be the only person left in the present class.

[00:10:20] Speaker 02:
I'm not 100% sure, but that's my understanding, at least as of the time the case was before the Veterans Court.

[00:10:27] Speaker 02:
I think that the VA had identified six people who had filed claims from Paul Amaris.

[00:10:35] Speaker 02:
And Mr. Skor had potentially identified 19 to 22 people, but we don't know what the status of those claims are or whether VA issued.

[00:10:43] Speaker 02:
Decision so I think there would certainly be a numerosity a great numerosity problem if you were only to include Present claimants or even if you're only to include present and expired claimants I see I'm in my rebuttal time so I can I can save my discussion for past and expired payments for rebuttal Thank you

[00:11:08] Speaker 01:
May it please the court?

[00:11:09] Speaker 01:
My name is Caroline Markowitz, and I will address the government's appeal.

[00:11:13] Speaker 01:
My colleague will argue the cross-appeal.

[00:11:15] Speaker 01:
This class of veterans, including Mr. Spohr and others who are listening to these arguments today, responded heroically to a Cold War nuclear accident in Palomar, Spain.

[00:11:25] Speaker 01:
For decades, the VA has hidden behind a flawed methodology to deny their resulting disability claims.

[00:11:32] Speaker 01:
The Veterans Court has the legal authority to certify a class that includes Palamari's veterans whose claims the VA will deny for three reasons.

[00:11:41] Speaker 01:
First, the jurisdictional statute 38 USC section 7252 requires only a decision of the board, which is satisfied by Mr. Scar's decision.

[00:11:52] Speaker 01:
Second, inclusion of those claims who will be denied in the class is consistent.

[00:11:56] Speaker 03:
Well, it's satisfied for Mr. Scar.

[00:12:01] Speaker 03:
But what about for all of these future claimants that you seek to add to the litigation?

[00:12:06] Speaker 03:
They have to have jurisdiction, right?

[00:12:07] Speaker 03:
Jurisdiction is person by person, entity by entity.

[00:12:11] Speaker 03:
It's not just because one person has jurisdiction in a case.

[00:12:13] Speaker 03:
50 people who don't have it can hop on board.

[00:12:17] Speaker 03:
So how is him having a final decision satisfy jurisdiction for future claimants?

[00:12:25] Speaker 01:
In this case, it is not required that

[00:12:28] Speaker 01:
And the court had jurisdiction over each individual class member.

[00:12:32] Speaker 01:
This is because the class question is a common question of law and fact on which there is a decision in Mr. Spore's case, but which does not predetermine individual class members.

[00:12:44] Speaker 01:
I guess I don't understand.

[00:12:45] Speaker 03:
What is the authority?

[00:12:46] Speaker 03:
My understanding is that the supplemental jurisdictional statute, 1367, is what generally provides authority for future complainants to be added into a class.

[00:13:01] Speaker 03:
So that statute doesn't apply here, correct?

[00:13:04] Speaker 01:
Correct.

[00:13:05] Speaker 01:
However, in APA class actions that regularly include

[00:13:12] Speaker 01:
Government benefits claimants that do not have a final decision.

[00:13:15] Speaker 01:
It is not necessary to rely on supplemental jurisdiction.

[00:13:19] Speaker 01:
APA class actions in the veterans context, such as Manker and Kennedy, do not even mention or cite 1367.

[00:13:26] Speaker 01:
Additionally, the APA- But where were those class actions?

[00:13:30] Speaker 05:
Those were in district courts, right?

[00:13:32] Speaker 01:
Correct.

[00:13:32] Speaker 05:
That they have that kind of supplemental authority.

[00:13:35] Speaker 05:
It may not have been mentioned, but they have it.

[00:13:38] Speaker 05:
And so they would have had jurisdiction over every single member of the class.

[00:13:43] Speaker 05:
Look, I mean, Congress presumably knew about this when it enacted a new system and created the Court of Appeals for Veterans Claims.

[00:13:50] Speaker 05:
And it decided not to give it that kind of supplemental jurisdiction.

[00:13:54] Speaker 05:
It required a floor decision for every claimant.

[00:13:56] Speaker 05:
Isn't that the real issue here is, despite the fact that you previously could have class actions with veterans, the VJRA essentially obviated that, except for what our monk decision said.

[00:14:11] Speaker 01:
That is not correct, Your Honor.

[00:14:13] Speaker 01:
In fact, the Veterans Judicial Review Act and the Veterans Benefits Adjudication System is designed to be more claimant-friendly than the APA and other government benefits systems.

[00:14:22] Speaker 01:
This justifies a greater, not a lesser, ability to certify classes.

[00:14:26] Speaker 05:
Well, just stating that overall general principle is correct, but you still have to look at the underlying statutory language and the structure of the court and the powers it has.

[00:14:37] Speaker 05:
And maybe it was intended overall to be more

[00:14:41] Speaker 05:
beneficial to the veterans.

[00:14:42] Speaker 05:
But in this one respect, it seems like they didn't give the Veterans Court the authority that a typical district court would have.

[00:14:52] Speaker 01:
Congress, congressional intent is clear that the creation of a specialty veterans court was created so that the

[00:15:06] Speaker 05:
Let me ask you as a hypothetical.

[00:15:08] Speaker 05:
Let's assume in all those class actions with veterans that happened before the BJRA, the basis for people who had not filed claims yet was the Supplemental Jurisdiction Act authority.

[00:15:22] Speaker 05:
And so that was the sole basis that they could exercise class authority over people who hadn't received final court decisions.

[00:15:30] Speaker 05:
You probably disagree with that, but that's OK.

[00:15:31] Speaker 05:
Just accept that as a hypothetical.

[00:15:34] Speaker 05:
Doesn't that mean that when Congress didn't give that to the Veterans Corps, even despite this overarching principle to be more favorable to veterans, in that one sole respect, they decided not to be more favorable?

[00:15:46] Speaker 01:
No, Your Honor.

[00:15:47] Speaker 01:
The jurisdictional statute that applies to the APA is just federal question jurisdiction.

[00:15:52] Speaker 01:
This was passed 150 years before the APA.

[00:15:56] Speaker 01:
However, when Congress enacted the jurisdiction and scope of review of the Veterans Court, it did so at the same time.

[00:16:04] Speaker 01:
But it is clear that congressional intent to situate judicial review in a specialized Veterans Court did not mean that the- Can you cite to me what specific legal authority

[00:16:17] Speaker 05:
the Veterans Court has to exercise jurisdiction over the future climates?

[00:16:23] Speaker 01:
Yes, Your Honor.

[00:16:25] Speaker 01:
This is consistent with 7252, the jurisdictional statute, which requires only a decision of the board.

[00:16:32] Speaker 01:
It is also consistent with the Veterans Court's authority under the All Writs Act and its inherent powers.

[00:16:37] Speaker 05:
How is this an All Writs Act case when you're not seeking a writ?

[00:16:43] Speaker 01:
This court's decision in Monk was clear that the All Writs Act does not extend only to the mandamus context.

[00:16:51] Speaker 01:
The decision in Monk.

[00:16:52] Speaker 05:
Well, but Monk was a mandamus case.

[00:16:54] Speaker 05:
Anything beyond that is not a binding holding of that case.

[00:17:01] Speaker 01:
That is correct.

[00:17:01] Speaker 01:
However, the decision in Monk.

[00:17:03] Speaker 05:
Let's just assume that All Writs Act doesn't get you there.

[00:17:06] Speaker 05:
Do you want to talk about the inherent authority?

[00:17:09] Speaker 01:
Yes, Your Honor.

[00:17:10] Speaker 01:
Even if this court were to find that the All Writs Act does not give the court jurisdiction over future claimants, the Veterans Court has separate authority under, according to the jurisdictional statute, 7252, and inherent powers to include future claimants in the class.

[00:17:27] Speaker 05:
Where do those inherent authorities come from?

[00:17:31] Speaker 05:
What's your argument that the court has an inherent authority to exercise jurisdiction over people who claimants who have not, let's just assume you don't have jurisdiction under 7252 either.

[00:17:44] Speaker 05:
So you don't have jurisdiction under 7252 because it requires a court decision for every claimant.

[00:17:50] Speaker 05:
You don't have jurisdiction under the All Writs Act.

[00:17:53] Speaker 05:
Given that, what inherent authority would allow a court, any court, to exercise jurisdiction that's not otherwise provided by statute?

[00:18:02] Speaker 01:
Yes, Your Honor.

[00:18:03] Speaker 01:
The Supreme Court in Landis explained that federal courts have the inherent power to control the disposition of cases on their docket in the interest of efficiency and equity.

[00:18:15] Speaker 01:
Courts can, including Article I courts, can employ procedural mechanisms

[00:18:19] Speaker 01:
as it sees fit in the interest of efficiency and equity, as I mentioned.

[00:18:23] Speaker 01:
And the court has done so in this case.

[00:18:24] Speaker 03:
Inherent authority over your docket, do you think that extends to decisions that might directly contradict your jurisdiction?

[00:18:35] Speaker 03:
As awarded by Congress, I mean, jurisdiction is a special little category.

[00:18:38] Speaker 03:
Like, you can't waive it, right?

[00:18:40] Speaker 03:
You can't waive it.

[00:18:40] Speaker 03:
I have to decide even if you don't raise it.

[00:18:42] Speaker 03:
It doesn't seem like.

[00:18:44] Speaker 03:
Congress meant to overturn jurisdictional requirements when it bestowed inherent authority on courts or allowed them to continue having inherent authority.

[00:18:55] Speaker 01:
As the Veterans Court found, 7252, the requirements of jurisdiction under 7252 are satisfied by Mr. Skor's case.

[00:19:03] Speaker 01:
Certification of this class is far from an anomaly.

[00:19:07] Speaker 01:
The very purpose.

[00:19:08] Speaker 05:
Can I ask you this?

[00:19:10] Speaker 05:
I think the government had to answer something similar.

[00:19:13] Speaker 05:
Why isn't a presidential decision that would find the secretary on this issue either superior to or equally as good as a class action?

[00:19:25] Speaker 01:
A presidential decision is an inadequate alternative to class certification for two reasons.

[00:19:30] Speaker 01:
First, the VA may not conform its behavior to follow a presidential decision, but even absent this concern.

[00:19:35] Speaker 05:
That's not a very good reason.

[00:19:36] Speaker 05:
I mean, if the secretary doesn't follow a presidential decision to the Veterans Court, they're going to get mandamist.

[00:19:43] Speaker 01:
Yes, Your Honor, even absent this concern, class certification, unlike presidential decisions, as this court found in Monk, affords claimants access to legal representation and the right to prompt consistent and efficient judicial enforcement of a class-wide decision.

[00:19:58] Speaker 05:
Why doesn't a presidential decision do the same thing?

[00:20:01] Speaker 05:
I mean, if you know that your potential client has a viable claim under the case, you're going to get legal representation.

[00:20:12] Speaker 05:
It will be prompt, because the VA has already been told what to do.

[00:20:16] Speaker 05:
I recommend it.

[00:20:18] Speaker 05:
I honestly, and I appreciate, I think you all are doing a great job handling this as a clinic and stuff like this.

[00:20:23] Speaker 05:
But this seems to me to be a solution in search of a problem, in that the ruling you're seeking here about the methodology for the exposure seems to be easily addressed and much more quickly handled.

[00:20:39] Speaker 05:
without the morass of a class action procedure.

[00:20:43] Speaker 05:
If you want to get a decision on the merits, get a decision on the merits.

[00:20:47] Speaker 05:
And you have some good arguments on the merits, I think.

[00:20:50] Speaker 05:
But why are we encumbering the VA with this class action?

[00:20:55] Speaker 01:
I recognize my time is expiring, but I'd be happy to answer your question, Your Honor.

[00:21:00] Speaker 01:
The government's position requiring only a presidential decision on matters such as this would place an extreme burden on veterans.

[00:21:07] Speaker 01:
It would require that veterans, often unrepresented, who've been routinely denied

[00:21:12] Speaker 01:
Let me interrupt you here because it seems to me

[00:21:30] Speaker 00:
This is the problem.

[00:21:31] Speaker 00:
You say an extreme burden on veterans without the class action.

[00:21:36] Speaker 00:
But the only thing that the class would accomplish, as I understand the presentation, is that you say, yes, I was there.

[00:21:44] Speaker 00:
I was at Palomaris doing the cleanup.

[00:21:48] Speaker 00:
It doesn't accomplish service connection.

[00:21:53] Speaker 00:
They have to show that the illness that they have

[00:21:56] Speaker 00:
is tied to radiation exposure, they'd still have to prove all of the facts, would they not, individually, even though they're a member of the class.

[00:22:07] Speaker 00:
And when you say there's an extreme burden without the class action, we're, of course, sympathetic to removing the burdens.

[00:22:16] Speaker 00:
But it's hard for me to see that anything is accomplished other than some sort of threshold presumption

[00:22:26] Speaker 00:
that if you were there of the 1,400 veterans doing the cleanup, then go ahead and prove your service connection, which you'd have to do in either case.

[00:22:39] Speaker 00:
So where is the burden, the extreme burden that's being relieved?

[00:22:45] Speaker 01:
Yes, Your Honor.

[00:22:46] Speaker 01:
It is true that the VA will adjudicate individual questions of entitlement to benefits.

[00:22:52] Speaker 01:
That is why the court is not presently exercising jurisdiction over class members.

[00:22:58] Speaker 01:
However, there are numerous very important policy justifications for

[00:23:04] Speaker 01:
class actions and including unpresented and unexhausted claimants in a class action that apply especially to this class, which includes sick aging veterans who frankly without class certification will never receive the benefits that they deserve before it is too late.

[00:23:21] Speaker 01:
These policy benefits include access to legal assistance, the right to judicial enforcement of class-wide injunctive relief.

[00:23:29] Speaker 01:
It prevents the VA from mooting out individual claims that are

[00:23:33] Speaker 00:
You're saying benefits are automatic?

[00:23:35] Speaker 00:
Once you show you were there and sickly now, years later, that benefits are automatic, don't you still have to show that whatever illness it is that you have was related to that experience at Palomaris?

[00:23:53] Speaker 01:
Yes, Your Honor.

[00:23:53] Speaker 01:
There are individual questions that class members would still need to prove at the VA.

[00:23:59] Speaker 01:
So what's the difference?

[00:24:00] Speaker 01:
The difference is that the class certification promotes efficiency and prevents unrepresented veterans from having to individually litigate the very complex questions.

[00:24:13] Speaker 03:
If there's a presidential opinion, they don't have to do any of that.

[00:24:16] Speaker 03:
If there is a presidential opinion on methodology, they don't have to individually litigate those issues.

[00:24:23] Speaker 01:
That is true.

[00:24:23] Speaker 01:
However, this court has found in past cases that the VA has in the past responded to a presidential decision by creating a scheme that was virtually indistinguishable from that which was found illegal.

[00:24:35] Speaker 01:
The class certification.

[00:24:38] Speaker 05:
If they're going to do that, they're going to do that whether there's a class action decision or not.

[00:24:42] Speaker 05:
I mean, if they're going to ignore a presidential decision, and I don't think the VA willingly

[00:24:46] Speaker 05:
ignores presidential decisions of the Veterans Court.

[00:24:50] Speaker 05:
But if they're going to do it without a class, then they're going to do it with a class, too.

[00:24:55] Speaker 05:
Is this just about notice?

[00:24:59] Speaker 05:
Is this about if we get a class, we can force the secretary to send notice to every single veteran that was at this site, and so that they're put on notice that they have possible claims?

[00:25:13] Speaker 01:
No, Your Honor, it is not just about notice, because if the Veterans Court, as you mentioned, does not immediately conform its behavior to follow a presidential decision, in the case of class certification, veterans would be able to appeal to the Veterans Court to ask the Veterans Court to enforce its injunctive relief, which would guarantee a legal and fair methodology to adjudicate all of those veterans' claims.

[00:25:41] Speaker 01:
This court in Monk recognized that class certification allows the court to more swiftly compel the Veterans Court to follow the law and conform its behavior to the law and afford veterans the special solicitude that the Veterans Benefits Adjudication System entitles them to.

[00:26:00] Speaker 01:
In closing, classes.

[00:26:01] Speaker 03:
Thank you very much, Ms.

[00:26:03] Speaker 03:
Markowitz.

[00:26:04] Speaker 03:
Your time has long since expired.

[00:26:06] Speaker 03:
Let's let your colleague, Mr. Cirilio.

[00:26:10] Speaker 03:
Is that right?

[00:26:13] Speaker 03:
Pickarillo.

[00:26:14] Speaker 03:
What?

[00:26:15] Speaker 03:
Pickarillo.

[00:26:16] Speaker 03:
Oh, sorry.

[00:26:17] Speaker 03:
Say it again.

[00:26:17] Speaker 03:
Name.

[00:26:19] Speaker 04:
Pickarillo.

[00:26:20] Speaker 03:
Pickarillo.

[00:26:20] Speaker 03:
Mr. Pickarillo.

[00:26:21] Speaker 03:
Sorry.

[00:26:21] Speaker 03:
Please proceed.

[00:26:23] Speaker 04:
Thank you.

[00:26:24] Speaker 04:
May it please the court, Anthony Pickarillo of Simpson Thatcher and Bartlett.

[00:26:31] Speaker 04:
The cross appeal challenges the veterans court's exclusion of the passed and expired claimants.

[00:26:36] Speaker 04:
Like the other class members, these Palomaris veterans' claims were denied based on unsound science.

[00:26:44] Speaker 04:
But unable to identify the flaw in the VA's nuclear radiation dosing methodology, these veterans did not exhaust the VA appeal process or file timely appeals to the Veterans Court.

[00:26:54] Speaker 04:
The Veterans Court's exclusion of these Palomaris veterans from the class results from legal error with respect to equitable tolling.

[00:27:00] Speaker 04:
The Veterans Court failed to apply the standard articulated by the Supreme Court in Bowen versus City of New York.

[00:27:07] Speaker 04:
First, the Veterans Court cast doubt on whether the Supreme Court's decision in Bowen was the relevant standard.

[00:27:13] Speaker 04:
The Veterans Court suggested in footnote three of its opinion that, quote, it is difficult to see how equitable tolling matters could be resolved through aggregate actions.

[00:27:23] Speaker 04:
But this is directly contrary to Bowen, in which the Supreme Court upheld just that, the application of equitable tolling on a class-wide basis.

[00:27:32] Speaker 04:
To the extent the Veterans Court purported to apply Bowen, the Veterans Court erred by only considering whether the allegations here can be, quote, equated to the secretive conduct at issue in Bowen.

[00:27:43] Speaker 04:
The Court did not examine whether the circumstances here are sufficient to justify class-wide equitable tolling, regardless of how closely it resembles the circumstances in Bowen.

[00:27:55] Speaker 05:
I'm a little confused by this whole argument.

[00:27:58] Speaker 05:
Equitable tolling is a factual case-by-case analysis, correct?

[00:28:02] Speaker 05:
Unless you're asserting that the VA has done something like secretive conduct that impacts every member of the class.

[00:28:13] Speaker 05:
Are you asserting something that is applicable to every single member of the class?

[00:28:18] Speaker 05:
Or are you just asserting that we should just toll this because they deserve to have their claims heard as part of this class, without regard to what their specific reasons for not filing a board claim or not appealing from the board?

[00:28:32] Speaker 04:
Your Honor, we are arguing that the circumstances justifying equitable tolling is a common question to the class.

[00:28:40] Speaker 04:
What is that common question?

[00:28:42] Speaker 04:
The common question is the policy of the nuclear dosing methodology

[00:28:47] Speaker 04:
gave rise to a common situation, a common circumstances where it made it.

[00:28:52] Speaker 05:
Well, that's the merits question.

[00:28:54] Speaker 05:
The fact that the merits question is common to the class doesn't speak to whether individual class members should be excused from failing to comply with filing debt fines.

[00:29:07] Speaker 05:
Those are usually factual circumstances, and frankly, things we don't even have jurisdiction to review.

[00:29:13] Speaker 04:
Well, Your Honor, at this stage, it would be based on the allegations.

[00:29:18] Speaker 05:
It's not yet proven yet that the... What allegation applicable to the entire class would satisfy Bowen and all those equitable tolling cases to excuse them from filing a timely claim?

[00:29:33] Speaker 04:
The allegation here is that the VA's nuclear dosing methodology

[00:29:38] Speaker 04:
was wrong.

[00:29:40] Speaker 04:
Was not only wrong, Your Honor, it was also, as Judge Shortland... How did that prevent them from filing a timely claim?

[00:29:49] Speaker 04:
It was of a nature that had the practical effect of making an appeal seem futile to these veterans.

[00:29:55] Speaker 04:
It was because of the complexity of the issues, Your Honor.

[00:29:58] Speaker 04:
This is not a situation where it's a question of law, which a lawyer could assist them with to identify the flaws.

[00:30:06] Speaker 04:
It's not a situation where it is a medical issue where a physician could help them identify the flaws.

[00:30:12] Speaker 04:
a such a complex question that we needed a Princeton nuclear physicist to explain.

[00:30:17] Speaker 05:
Can you cite a single case where the complexity of an issue has been used as a basis for equipotolic?

[00:30:24] Speaker 04:
Your Honor, I think this is an extension of Bowen.

[00:30:27] Speaker 04:
It's an application of the Supreme Court's case in Bowen to different circumstances, but within the same framework of recognizing that there is a common question which justifies equitable tolling to be applied on a class-wide basis, like other common questions can be applied on a class-wide basis.

[00:30:47] Speaker 05:
What was the class-wide basis in Bowen that allowed equitable tolling?

[00:30:51] Speaker 04:
In that case, it was a secretive policy that they... Well, that's exactly what makes sense.

[00:30:56] Speaker 05:
If the agency has done something to conceal its conduct and make filing a request for benefits or an appeal of the denial or something like that impossible, that's classic equitably.

[00:31:10] Speaker 05:
You don't have that here and you're not alleging that here, right?

[00:31:13] Speaker 05:
All you're alleging is this is a really hard issue.

[00:31:16] Speaker 05:
So some of people might not have wanted to appeal it, but the VA has really hard issues in tons of cases and we see them all the time and we don't allow equitable tolling and people are managed to complete their deadlines.

[00:31:28] Speaker 05:
I don't understand why that's a basis for equitable tolling.

[00:31:32] Speaker 04:
Your Honor, here what the veterans received when their claims were denied was they received what their dose of radiation was, but they didn't get an explanation of how that was developed.

[00:31:41] Speaker 04:
Therefore, practically speaking,

[00:31:44] Speaker 04:
If you're a veteran and you believe that you were exposed to a lot of radiation, and the VA says, no, it was only this amount, how is that veteran supposed to challenge that?

[00:31:53] Speaker 05:
He files a claim with the board.

[00:31:55] Speaker 05:
I mean, this happens all the time.

[00:31:57] Speaker 05:
And if it's a board decision, he files a reasons and bases appeal to the Veterans Court.

[00:32:03] Speaker 04:
But Your Honor, I think this is an extraordinary circumstance.

[00:32:06] Speaker 05:
Look, when you get a decision from the RO that says you don't have the radiation disability, it includes a specific discussion of appeal rights, does it not?

[00:32:20] Speaker 05:
It tells you exactly how, if you disagree with this decision, file a notice of disagreement with the board.

[00:32:28] Speaker 04:
I see the red light is up.

[00:32:30] Speaker 05:
OK, you can respond to that.

[00:32:31] Speaker 05:
I guess it was kind of a question.

[00:32:35] Speaker 04:
Your Honor, I think, again, they can see that the dosing was a certain level, but they cannot see what the reasons were for this.

[00:32:43] Speaker 04:
It came from the Air Force, which then relied on a consultant.

[00:32:46] Speaker 04:
Practically speaking, this is a circumstance where it would have been difficult, if not impossible, for the veteran to know how he or she should appeal that, what the arguments should be in appeal.

[00:32:55] Speaker 03:
OK, thank you, Mr. Piccirillo.

[00:32:58] Speaker 03:
You've used all your time, including all your rebuttal time, but I'll give you some if the government ends up addressing this issue.

[00:33:05] Speaker 03:
Ms.

[00:33:06] Speaker 03:
Bae, you have some rebuttal time.

[00:33:09] Speaker 02:
I left my pen at the desk this time.

[00:33:12] Speaker 02:
Your Honor, we actually do not have anything further to add.

[00:33:15] Speaker 02:
I'm happy to answer any questions that your honors may have.

[00:33:19] Speaker 02:
If there are none, then we respectfully request that this court reverse the decision of the Veterans Court with respect to the present future and future claimants and affirm with respect to the past and expired claimants.

[00:33:29] Speaker 03:
I have a question for you on the past and expired claimants.

[00:33:32] Speaker 03:
Why isn't it possibly a common ground, for example,

[00:33:37] Speaker 03:
Suppose that the VA consistently lied to veterans about whether or not they were being exposed to some biological agent in their service.

[00:33:51] Speaker 03:
Suppose there's a group of veterans at a location, and they were exposed to some really significant biological agent, nerve gas, whatever.

[00:34:00] Speaker 03:
And then they all got sick and started developing symptoms.

[00:34:03] Speaker 03:
And the VA lied to them when they inquired.

[00:34:05] Speaker 03:
They said, no, we didn't use any chemicals there.

[00:34:09] Speaker 03:
And so they didn't file claims because they had misinformation, purposefully lied upon information.

[00:34:18] Speaker 03:
That would create a basis for equitable tolling, would it not?

[00:34:21] Speaker 02:
That would be a much stronger case, because that would be an extraordinary circumstance and much more akin to what happened in Bowen, where there was a secretive agency policy that

[00:34:33] Speaker 02:
benefits claimants did not know about here, there's no indication of a lie from VA regarding Paula Morris.

[00:34:40] Speaker 02:
Rather, as Judge Hughes alluded to, there was a board decision, a statement of reasons and bases, and there was nothing preventing them other than an adverse decision and thinking they were going to lose from continuing to appeal all the way to this court.

[00:34:53] Speaker 03:
Well, when you say there was nothing akin to a lie,

[00:34:56] Speaker 03:
In this case, with just Mr. Scar, I don't remember the facts precisely, so you can help me.

[00:35:03] Speaker 03:
But I believe, at first, he was told he was exposed to X amount of radiation.

[00:35:08] Speaker 03:
And it was a single digit.

[00:35:09] Speaker 03:
I don't know what it was.

[00:35:11] Speaker 03:
I don't even know what it means.

[00:35:13] Speaker 03:
But there was one.

[00:35:14] Speaker 03:
You were exposed to X amount of radiation.

[00:35:18] Speaker 03:
Do you remember the number?

[00:35:19] Speaker 02:
4 point something, perhaps.

[00:35:23] Speaker 03:
Then I believe there was a lot.

[00:35:25] Speaker 03:
And if I were a veteran and I was told I was exposed to none or nearly no radiation, I'd probably say, OK, I don't have much of a case.

[00:35:36] Speaker 03:
And a veteran's not in a position, are they, to go backwards and get information about how much radiation was or was not there at the time, correct?

[00:35:47] Speaker 03:
They don't have any ability to gather data to contradict that.

[00:35:51] Speaker 03:
Is that right?

[00:35:53] Speaker 02:
I think in a normal circumstance, they wouldn't.

[00:35:56] Speaker 02:
Mr. Skorr still continued to appeal his claim.

[00:35:59] Speaker 02:
But I wouldn't say that that's akin to the VA lying to Mr. Skorr.

[00:36:04] Speaker 02:
Well, number one, let me try to- Hold on.

[00:36:06] Speaker 03:
So go back to my question.

[00:36:07] Speaker 03:
Does the veteran have any ability to gather his own data to say, no, it wasn't 4% radiation.

[00:36:17] Speaker 03:
It was 17% radiation?

[00:36:19] Speaker 02:
Well, I think in this case, VA gave its information to Mr. Scorb regarding his dose.

[00:36:25] Speaker 02:
And Mr. Scorb, I think, if I'm remembering correctly, got the opinion of an independent physician who, I think, contested that.

[00:36:34] Speaker 02:
And that's when the VA and the Air Force reassessed the methodology and ended up assessing a higher score.

[00:36:39] Speaker 03:
So they reassessed.

[00:36:41] Speaker 03:
So first they said you were exposed to 4% radiation.

[00:36:45] Speaker 03:
Then they went back, admitted error, correct?

[00:36:48] Speaker 03:
They admitted that the methodology was flawed, yes.

[00:36:52] Speaker 03:
They admitted that 4% wasn't the amount of radiation he was actually exposed to, correct?

[00:36:57] Speaker 03:
I think so, yes.

[00:36:58] Speaker 03:
And what amount did they come back with after that?

[00:37:01] Speaker 02:
It was in the teens.

[00:37:02] Speaker 02:
I can't remember.

[00:37:03] Speaker 03:
It was either 11 or... 17.9.

[00:37:04] Speaker 03:
Okay, yes.

[00:37:05] Speaker 03:
17.9 is what they came back with.

[00:37:08] Speaker 03:
So I have here, you know, my handy-dandy law clerk is much better with this than you and I apparently are.

[00:37:12] Speaker 03:
4.2% originally, 17.9.

[00:37:15] Speaker 03:
So then the government comes back, says, are bad,

[00:37:18] Speaker 03:
Turns out you actually exposed to 17.9% radiation.

[00:37:23] Speaker 03:
Well, can't you imagine that that inaccurate information provided to veterans would have caused them to go away and believe the government and then

[00:37:37] Speaker 03:
Suddenly, like in a case like this with Mr. Scar, when he has established or gotten the government to figure out that it was in fact wrong, that would be a whole different basis.

[00:37:49] Speaker 03:
Why isn't it equitable tolling when it turns out the government gave you misinformation of such a significant factor in terms of potential causation for your ultimate injury or disease?

[00:38:05] Speaker 03:
Well, first, any information that was, by the way, exclusively within their control.

[00:38:10] Speaker 03:
We talked about this earlier.

[00:38:11] Speaker 03:
No way Mr. Scar could have gone out and done some sort of radiological testing to figure out how much radiation was there.

[00:38:17] Speaker 03:
Only the government knew that information, and only the government had control over that information.

[00:38:24] Speaker 03:
Why isn't that a potential basis for equitable tolling for the class of people who were similarly given misinformation?

[00:38:31] Speaker 03:
Because now that the government has admitted the methodology was flawed with regard to Mr. Scar, I assume

[00:38:37] Speaker 03:
that same methodology was flawed with regard to all those people, right?

[00:38:40] Speaker 02:
Well, we're not.

[00:38:41] Speaker 02:
I don't know that we're sure that the methodology was applied to the pre-2013 methodology, which I believe is the first methodology under which Mr. Skor got his lower number.

[00:38:56] Speaker 02:
I don't know that there is even any veterans that qualify under that methodology.

[00:39:02] Speaker 02:
To the extent there are, we don't know what their numbers are at this time, so we wouldn't be able to say, I think as a per se categorical rule, that this information, especially when there's no indication that it was based on bad faith or a lie or a secret or anything like that,

[00:39:16] Speaker 02:
is enough to justify extraordinary circumstances and the failure to exercise due diligence.

[00:39:22] Speaker 02:
To do so would be a per se categorical rule that this court disclaimed in James.

[00:39:27] Speaker 02:
And so let me understand something.

[00:39:30] Speaker 03:
So even one of the solutions or answers to my questions and my concerns, Miss Baby, if individual claimants who have expired claims really do fall into this category, which

[00:39:45] Speaker 03:
could maybe give rise to equitable tolling.

[00:39:49] Speaker 03:
They're not precluded from filing their own claim to that extent.

[00:39:53] Speaker 03:
If they have a number like 4.2, and that's why they went away, could they still come back now and say, hey, you should equitable toll my right to file an appeal, because I've now learned that the number you gave me was probably produced by the same methodology you now admit to be flawed.

[00:40:12] Speaker 03:
is that are they precluded somehow from coming forward and raising their own claims now of equitable tolling?

[00:40:20] Speaker 02:
I mean, that strikes me as, and without having the law of clear and unmistakable error at my fingertips, that strikes me as a case where you would

[00:40:27] Speaker 02:
alleged something like clear and unmistakable error or potentially new and material evidence.

[00:40:32] Speaker 05:
So you could... I mean, there's nothing that prevents them from asking to reopen their claims anytime, right?

[00:40:38] Speaker 05:
It might have a difference on effective date, although as you mentioned, they can put forth a cue attack on that effective date.

[00:40:46] Speaker 05:
But if they found out now that the methodology used prior was wrong,

[00:40:52] Speaker 05:
they can file a claim to reopen and say, you need to reconsider because you need to use the new methodology.

[00:40:59] Speaker 05:
That's correct, right?

[00:41:00] Speaker 02:
Right.

[00:41:01] Speaker 02:
And the Veterans Court explicitly stated that in finding the equitable tolling was not warranted in this situation.

[00:41:07] Speaker 00:
I always thought, and tell me if this is wrong, I always thought the way service connection worked when later in life a disease is manifested, such as the oligopenia, but something that takes a long time of gestation, no matter what.

[00:41:32] Speaker 00:
If you didn't file suit within six years of leaving the service, you weren't out in the cold.

[00:41:39] Speaker 00:
You had to show service connection.

[00:41:42] Speaker 00:
But the equitable telling aspect was such that you couldn't recover damages for more than six years, retrospectively.

[00:41:52] Speaker 00:
But that you didn't have to show what you're now telling us would have to be shown by every veteran who comes up with a radiation

[00:42:04] Speaker 00:
potentially, possibly, radiation disease in his 60s or 70s?

[00:42:10] Speaker 02:
Unfortunately, Your Honor, I'm not intimately familiar with the six-year rule regarding these circumstances.

[00:42:16] Speaker 02:
I'm happy to.

[00:42:16] Speaker 00:
You're not aware of the six-year limitations period?

[00:42:19] Speaker 02:
I'm generally aware of it.

[00:42:20] Speaker 02:
I'm not familiar offhand with that to be able to, I think, answer that question.

[00:42:26] Speaker 00:
Well, we're here.

[00:42:27] Speaker 00:
The issue of what we're talking about now, the veterans who were exposed

[00:42:33] Speaker 00:
But a lot of time has passed.

[00:42:35] Speaker 00:
And either because they've heard through the veterans grapevine that you can't get any compensation for all this.

[00:42:43] Speaker 00:
It's been decided.

[00:42:44] Speaker 00:
So they haven't hired a lawyer and so on.

[00:42:48] Speaker 00:
And then you're saying that they are out in the cold.

[00:42:54] Speaker 00:
If so, then perhaps the class action is exactly what they need to protect their purely legitimate interests.

[00:43:04] Speaker 00:
I want you to tell me if the government's position is that unless you take some action of some sort, file suit, or at least go to the regional office, within six years of exposure, you're out in the cold, because that's what I think

[00:43:23] Speaker 02:
I hear you sustaining well with regard to the past and expired claimants.

[00:43:28] Speaker 02:
I believe those claimants have all filed claims at some level of VA and

[00:43:33] Speaker 02:
receive decisions so it's not like the future future claimants who may have for whatever reason not filed claims so what they would be able to do is reopen a claim or assert a claim.

[00:43:44] Speaker 03:
I'm confused I don't know what the six-year rule is can you help me I thought a veteran can file a claim at any time ever based on a new injury or a disease or something I don't

[00:43:54] Speaker 03:
no I what am I missing I I thought so too that's why as I expressed to judge I mean I mean correct cases and patent act cases there are statutes and limitations am I missing something no okay all right yes in which case Washington

[00:44:10] Speaker 00:
the veterans who were exposed at Palo Mars be able to come into either a class action or to come into court without it?

[00:44:19] Speaker 05:
I assume your answer is they can go file a claim with the VA today if they want to.

[00:44:24] Speaker 02:
They cannot bar it.

[00:44:25] Speaker 02:
No, they're not at all barred.

[00:44:27] Speaker 02:
I think the dissent expressed that in its opinion.

[00:44:30] Speaker 02:
Thank you, Your Honors.

[00:44:32] Speaker 03:
All right.

[00:44:32] Speaker 03:
Thank you, Ms.

[00:44:33] Speaker 03:
Bae.

[00:44:34] Speaker 03:
Mr. Piccirillo, I'll give you your full three minutes.

[00:44:38] Speaker 03:
Come on back up.

[00:44:39] Speaker 03:
But of course, you understand that you're limited to the cross-the-field issue.

[00:44:44] Speaker 04:
Thank you, Your Honors.

[00:44:46] Speaker 04:
Time is running out for the Palomar's veterans.

[00:44:49] Speaker 04:
Mr. Skor is 85 years old, a service member who was 18 during the clean-up.

[00:44:53] Speaker 03:
OK, well, if that were true, then if you're worried about Mr. Skor being 85, why are you in here delaying the possible resolution of the merits of his case with this class action?

[00:45:04] Speaker 03:
If Mr. Scar being 85 and sick is the most important factor in the Scar case and the need for speedy resolution, you have delayed the processing of his claim and the possible receipt of benefits by years by raising this issue about class certification, which actually has nothing to do with Mr. Scar and only prolongs his ability to get benefits.

[00:45:27] Speaker 04:
Your Honor, Mr. Skor believes it's very important to represent all the Palomaris veterans in this class.

[00:45:33] Speaker 04:
He himself is very driven to get relief for all of them.

[00:45:36] Speaker 05:
Is there anything preventing your clinic pro bono groups, law firms that do pro bono, from going out and finding out who all these Palomaris veterans are and offering to file claims on their behalf at the VA?

[00:45:51] Speaker 05:
And if we'd had a final presidential decision on the merits, we would be that further along.

[00:45:57] Speaker 04:
Your Honor, the veterans groups have been trying to identify the Palomar veterans.

[00:46:01] Speaker 04:
There has been decades of FOIA litigation to find out who they are.

[00:46:05] Speaker 04:
The government has resisted providing information necessary to identify these Palomar veterans.

[00:46:10] Speaker 04:
And that is to go to one of your questions earlier, Judge Hughes, about the presidential decision.

[00:46:14] Speaker 04:
That's one of the reasons why a presidential decision for the past expired claimants is insufficient, because the VA won't tell us who these veterans are.

[00:46:23] Speaker 04:
So how are they supposed to find out about the presidential decision?

[00:46:28] Speaker 05:
What's the class action going to do to help that?

[00:46:32] Speaker 04:
The class action will give them access to class counsel, will give them access to the experts, and will enable them to more quickly get the good news.

[00:46:40] Speaker 05:
How are they going to get access?

[00:46:43] Speaker 05:
Again, I asked this before.

[00:46:45] Speaker 05:
Is this all about notice?

[00:46:46] Speaker 05:
Are you going to ask the court to order the secretary to provide notice to everybody that was there?

[00:46:53] Speaker 04:
Notice is an important aspect, Your Honor, and we have asked the Court to provide notice.

[00:46:58] Speaker 04:
It did not provide individualized notice.

[00:47:00] Speaker 04:
No doubt we would ask the Court again to order the VA to provide the names of every member who has filed appeals in the past so that they can be contacted.

[00:47:10] Speaker 04:
And just one final point, Your Honor.

[00:47:14] Speaker 05:
If you are asking for that under FOIA, what's the status of that litigation?

[00:47:18] Speaker 04:
There was a district court litigation which concluded relatively recently, and the court denied the request to identify based on the personal identifying information.

[00:47:29] Speaker 05:
So you don't have the right to it.

[00:47:31] Speaker 05:
Has the VA provided a kind of generalized notice through its system of hospitals and things like that?

[00:47:39] Speaker 04:
There has been generalized notice, Your Honor.

[00:47:42] Speaker 04:
In conclusion, we respectfully ask that this court reverse the decision with respect to the past expired claimants and remand for application at the proper standard for equitable tolling.

[00:47:51] Speaker 04:
Thank you, Your Honor.

[00:47:52] Speaker 03:
I thank all counsel, and this case is taken under submission.