[00:00:00] Speaker 02: The next case is Norman Thornton versus the Secretary of Veterans Affairs, 2021-23-29. [00:00:08] Speaker 02: Good morning, Mr. Carpenter. [00:00:10] Speaker 02: Good morning, Your Honor. [00:00:15] Speaker 05: May it please the Court, Kenneth Carpenter appearing on behalf of Mr. Thornton. [00:00:19] Speaker 05: The issue in this case deals with the question of statutory interpretation, specifically the provisions of 38 USC 7261B1. [00:00:29] Speaker 05: This provision of law was created by Congress in 2002. [00:00:32] Speaker 05: It is Mr. Thornton's position that since that date, the Veterans Court has never had occasion [00:00:38] Speaker 05: to apply this provision, and that in this particular case, they misapplied it by relying upon a misinterpretation of that statute. [00:00:48] Speaker 02: Mr. Toppenter, let me ask you the question that is suddenly awaiting. [00:00:54] Speaker 02: Isn't it a factual question whether there was a balance of positive and negative evidence, and whether the disability picture more nearly approximates the criteria for a higher rating? [00:01:08] Speaker 02: Aren't these fact questions, and this is not basically what this appeals about? [00:01:13] Speaker 05: Those are factual questions in the first instance which the board addressed and which the Veterans Court addressed in giving due deference to those factual determinations by the board. [00:01:24] Speaker 05: The error here is that that is not what is required by 7261B1. [00:01:31] Speaker 05: What is required by 7262B1 is a taking of Duke account [00:01:36] Speaker 05: of the secretary's application. [00:01:39] Speaker 05: The error of the Veterans Court was in specifically finding that this was about taking into account of the board's application. [00:01:47] Speaker 05: But Veterans Court did that under the provisions of 7261A. [00:01:53] Speaker 05: This case is about 7261B1, which was created by Congress in 2002 and added to the process [00:02:05] Speaker 05: an additional consideration that previously did not exist and the only other consideration pre-existed under the APA for taking into account of the rule of prejudicial error. [00:02:20] Speaker 05: That rule of prejudicial error was ruled upon by this court after its enactment when it was part of the current statutory scheme, which included both subsections A and B1 and B2. [00:02:35] Speaker 05: And this court in Conway found that this was not discretionary on the part of the Veterans Court, but that it was in fact mandatory. [00:02:48] Speaker 03: I thought what you were trying to do here was to say, we have a question about what did Congress mean when it added the language, take due account of the real harm, pardon me, of the benefit of the doubt, right? [00:03:04] Speaker 03: Because the benefit of the doubt pre-existed all of this. [00:03:07] Speaker 03: The benefit of the doubt goes back into the 1930s, as we know from these earlier cases, right? [00:03:12] Speaker 03: So they added some words. [00:03:14] Speaker 03: And it's clear that taking [00:03:17] Speaker 03: Consider taking into consideration the Benefited Out rule as part of 7261A, right? [00:03:23] Speaker 03: In an ordinary analysis, and you're arguing that the inclusion of that language meant they have to do something else. [00:03:30] Speaker 05: Yes. [00:03:31] Speaker 03: Something in addition. [00:03:32] Speaker 05: Something in addition. [00:03:33] Speaker 03: That those words had some meaning. [00:03:35] Speaker 05: Yes, and that they have to have some meaning. [00:03:37] Speaker 03: Well, the secretary, I think, is going to tell us it was hortatory. [00:03:42] Speaker 03: It was simply an exhortation. [00:03:45] Speaker 03: because the legislative history of the 2002 law showed that there was concern from the veterans community that insufficient attention was being paid to benefit the deaf. [00:03:59] Speaker 03: And so there was a lot of work going on in Congress about how do we deal with that concern. [00:04:04] Speaker 03: And the thought was, well, we'll change the standard of review at the board from clear air to substantial evidence. [00:04:10] Speaker 03: Thought about that for a while. [00:04:12] Speaker 03: I said, no, I'm not going to do that. [00:04:13] Speaker 03: And then they said, well, maybe we'll change and make clear that the CAVC has the power to reverse, not just remit. [00:04:19] Speaker 03: So that's what we're going to do. [00:04:21] Speaker 03: So they made that change. [00:04:23] Speaker 03: And then the secretary, I think, is going to argue with me today that as a matter of making certain you don't overlook that, they put in take due account of. [00:04:33] Speaker 03: And they did that because in 1988, when the CAVC was created, [00:04:40] Speaker 03: They used exactly the same language for taking into account of their own harmless air. [00:04:44] Speaker 03: Correct. [00:04:46] Speaker 03: And if you look at the legislative history of that one, you'll see that was put in as an exhortation because they wanted to be certain that it was clear that the CBC had the power that an APA review court has. [00:04:59] Speaker 03: Not all courts have the power to do prejudicial air or harmless air. [00:05:06] Speaker 03: And so they added that as an exhortation for that reason in 88. [00:05:10] Speaker 03: we are not sure i would agree with that because uh... either either taking into account i have some meaning has to have some meaning has to have some meaning and i think basically your appeal here just saying please tell us what it means well that's really good you're claiming it has a meaning that you like which is there's a second-level review of something in here yes but the core question you're asking is what's in the [00:05:36] Speaker 05: Well, what does it mean? [00:05:37] Speaker 03: It has to mean something. [00:05:38] Speaker 05: Yes, Your Honor. [00:05:39] Speaker 05: And what does it mean when Congress used the phrase, the secretary's application? [00:05:44] Speaker 03: I'm trying to help you with your argument that you're presenting here a question of law, an interpretation of law, rather than an application of fact to settle a known question of law. [00:05:54] Speaker 05: That's correct. [00:05:59] Speaker 03: And on this issue, then, [00:06:02] Speaker 03: you know it's interesting for the first time it's got a new way to attack you and they say you haven't presented a genuine issue. [00:06:10] Speaker 05: Yes I understand that. [00:06:11] Speaker 03: You saw that didn't you? [00:06:13] Speaker 03: I did, I did. [00:06:13] Speaker 03: They say you didn't present an issue so they think you're ingenuous. [00:06:18] Speaker 05: I've been accused of that before your honor by the government and to me it is a simple question of statutory interpretation going back to the fundamental principle of if the [00:06:30] Speaker 05: Congress acted. [00:06:32] Speaker 03: How can, assuming you're correct, that taking into account the benefit of the doubt requires some extra work by the CAVC in its review of the case when the issue is presented, right? [00:06:49] Speaker 03: So how can the CAVC do this to your satisfaction without running afoul? [00:06:56] Speaker 03: of their standard of review, which is they can only upset facts for clear error. [00:07:02] Speaker 03: And they can't weigh facts. [00:07:06] Speaker 03: You agree they can't weigh the facts. [00:07:09] Speaker 05: But they can take due account of what the secretary did in applying [00:07:16] Speaker 05: 5107B. [00:07:16] Speaker 03: Well that's, they're going to do that under A anyhow, because a review under A includes not only what was in front of the BVA, but what was in front of the Secretary. [00:07:27] Speaker 05: Yes, Your Honor, but they do that under a deferential standard of review. [00:07:31] Speaker 03: What makes B1's addition... When they're doing a review in A, 7261A, right, and they have a question of the issues presented, it's in front of them on whether there was [00:07:45] Speaker 03: and taking due account of the benefit of that. [00:07:49] Speaker 03: So what is it that's missing in the analysis that's done initially? [00:07:56] Speaker 05: What's missing is that it's a deferential review. [00:07:59] Speaker 03: It is a deferential because of clear error. [00:08:03] Speaker 03: Well, if you include in clear error questions of law... Other than the clear error standard, tell me why it's deferential, the review. [00:08:12] Speaker 05: Well, because it is a factual determination, honor. [00:08:15] Speaker 03: Well, let's be very careful. [00:08:17] Speaker 05: Yes. [00:08:18] Speaker 05: The determination of whether or not there is or isn't an approximate balance of positive and negative evidence. [00:08:25] Speaker 05: That is the factual determination, ultimately. [00:08:29] Speaker 03: And when the secretary... And it's produced as a result of a fact-hinder weighing the evidence on the scale. [00:08:36] Speaker 05: Yes. [00:08:38] Speaker 05: And the Veterans Court is required to give that determination deference. [00:08:43] Speaker 05: under the determinations under 7261A. [00:08:46] Speaker 05: But what Congress... Wait. [00:08:47] Speaker 03: Wait. [00:08:47] Speaker 03: Wait. [00:08:47] Speaker 03: Wait. [00:08:48] Speaker 03: Wait. [00:08:48] Speaker 03: Wait. [00:08:48] Speaker 03: Wait. [00:08:48] Speaker 03: Wait. [00:08:48] Speaker 03: Wait. [00:08:48] Speaker 03: Wait. [00:08:48] Speaker 03: Wait. [00:08:50] Speaker 03: Wait. [00:08:50] Speaker 03: Wait. [00:08:50] Speaker 03: Wait. [00:08:50] Speaker 03: Wait. [00:08:51] Speaker 03: Wait. [00:08:51] Speaker ?: Wait. [00:08:51] Speaker ?: Wait. [00:08:51] Speaker ?: Wait. [00:08:52] Speaker ?: Wait. [00:08:52] Speaker 03: Wait. [00:08:52] Speaker 03: Wait. [00:08:52] Speaker 03: Wait. [00:08:52] Speaker 03: Wait. [00:08:52] Speaker 03: Wait. [00:08:53] Speaker 03: Wait. [00:08:53] Speaker 03: Wait. [00:08:53] Speaker 03: Wait. [00:08:53] Speaker 03: Wait. [00:08:53] Speaker 03: Wait. [00:08:53] Speaker 03: Wait. [00:08:53] Speaker 03: Wait. [00:08:54] Speaker 03: Wait. [00:08:54] Speaker 03: Wait. [00:08:54] Speaker 03: Wait. [00:08:54] Speaker 03: Wait. [00:08:54] Speaker 03: Wait. [00:08:55] Speaker 03: Wait. [00:08:55] Speaker 03: Wait. [00:08:55] Speaker 03: Wait. [00:08:55] Speaker 03: Wait. [00:08:55] Speaker ?: Wait. [00:08:55] Speaker ?: Wait. [00:08:55] Speaker 03: Wait. [00:08:56] Speaker 03: Wait. [00:08:56] Speaker 03: Wait. [00:08:56] Speaker 03: Wait. [00:08:56] Speaker 03: Wait. [00:08:56] Speaker 03: Wait. [00:08:56] Speaker 03: Wait. [00:08:56] Speaker 03: Wait. [00:08:56] Speaker 03: Wait. [00:08:57] Speaker 03: Wait. [00:08:57] Speaker 03: Wait. [00:08:57] Speaker 03: Wait. [00:08:57] Speaker 03: Wait. [00:08:57] Speaker 03: Wait. [00:08:57] Speaker 03: Wait. [00:08:57] Speaker 03: Wait. [00:08:58] Speaker 03: Wait. [00:08:58] Speaker 03: Wait. [00:08:58] Speaker 03: Wait. [00:08:58] Speaker 03: Wait. [00:08:58] Speaker 03: Wait. [00:08:58] Speaker 03: Wait. [00:08:58] Speaker 03: Wait. [00:08:58] Speaker ?: Wait. [00:08:59] Speaker ?: Wait. [00:08:59] Speaker 03: Wait. [00:08:59] Speaker 03: Wait. [00:08:59] Speaker 03: Wait. [00:08:59] Speaker 03: Wait. [00:08:59] Speaker 03: Wait. [00:08:59] Speaker 03: Wait. [00:08:59] Speaker 03: Wait. [00:09:00] Speaker 03: Wait. [00:09:00] Speaker 03: Wait. [00:09:00] Speaker 03: Wait. [00:09:00] Speaker 03: Wait. [00:09:00] Speaker 03: Wait. [00:09:00] Speaker 03: Wait. [00:09:00] Speaker 03: Wait. [00:09:00] Speaker 03: Wait. [00:09:01] Speaker 03: Wait. [00:09:01] Speaker 03: Wait. [00:09:01] Speaker 03: Wait. [00:09:01] Speaker 03: Wait. [00:09:01] Speaker 03: Wait. [00:09:01] Speaker 03: Wait. [00:09:01] Speaker 03: Wait. [00:09:01] Speaker ?: Wait. [00:09:02] Speaker ?: Wait. [00:09:02] Speaker ?: Wait. [00:09:02] Speaker ?: Wait. [00:09:02] Speaker ?: Wait. [00:09:02] Speaker ?: Wait. [00:09:02] Speaker ?: Wait. [00:09:02] Speaker ?: Wait. [00:09:02] Speaker ?: Wait. [00:09:03] Speaker ?: Wait. [00:09:03] Speaker 05: Wait. [00:09:03] Speaker 05: Wait. [00:09:03] Speaker 05: Wait. [00:09:03] Speaker 05: Wait. [00:09:03] Speaker 05: Wait. [00:09:03] Speaker 03: That's right. [00:09:04] Speaker 03: It's what happened in the RF, right? [00:09:06] Speaker 05: Yes, but it's also what happens at the board. [00:09:09] Speaker 03: No, you're distinguishing between secretary and board. [00:09:14] Speaker 05: Well, you're under the legacy system and frankly even under the current AMA system. [00:09:19] Speaker 05: There are times in which there is additional evidence that is submitted after the secretary completes its consideration that the board considers that evidence in the first instance. [00:09:29] Speaker 05: So they are in fact separate. [00:09:32] Speaker 05: There are times in which there are factual determinations that have never been made in the first instance by the secretary. [00:09:36] Speaker 03: We haven't made an argument here that there's a difference in how we interpret B1 depending on whether it's a legacy appeal or not. [00:09:44] Speaker 05: Oh no, Your Honor. [00:09:45] Speaker 05: I was simply trying to clarify [00:09:47] Speaker 05: your statement that categorically it's only consideration by the secretary and that is simply not true in consideration under both legacy and AMA so it covers both and that's an important distinction because those factual determinations are... I want to take you back to where my question was which is if I were to buy your argument that B1 tells us that something in addition to a garden variety A [00:10:15] Speaker 03: review of this issue of the benefit of the doubt has something extra. [00:10:20] Speaker 03: How can the CABC do it without violating its restriction on its fact-finding power and its review of fact power? [00:10:29] Speaker 05: Because it looks at it must review the record of proceedings of both the secretary and the board under the plain language in 7261B1. [00:10:39] Speaker 03: They do that under A as well. [00:10:43] Speaker 05: I understand that you are, but there's a separate instruction in B1 to repeat that as part of the A determination and that when they're doing it and taking due account. [00:10:54] Speaker 03: Okay, if they just repeat it, is they just do it a second time? [00:10:57] Speaker 05: Yes, they just do it a second time. [00:11:00] Speaker 03: Is that all you're asking for? [00:11:04] Speaker 05: Well, I don't know that that's all I'm asking for. [00:11:06] Speaker 03: It's very important. [00:11:07] Speaker 03: Because if all you're asking for is for them to say, well, we did it under A, and we now have a new requirement from Thornton to do it under B, so we do it again. [00:11:15] Speaker 03: We just print it. [00:11:17] Speaker 01: I understand you'd be arguing you're asking for a second time under a different standard of review. [00:11:20] Speaker 01: Yes, you are. [00:11:21] Speaker 05: And that standard of review must be de novo, because it is mandated by the Congress for the Secretary [00:11:31] Speaker 05: to consider, to take due account of... So it's de novo instead of what? [00:11:36] Speaker 05: Deferential. [00:11:37] Speaker 03: And deferential because of clear error. [00:11:41] Speaker 03: Why is the review of this ABC deferential? [00:11:44] Speaker 05: because it becomes a question of law, Your Honor, as to whether or not the Secretary afforded the benefit of the doubt. [00:11:50] Speaker 05: 51-07b is binary. [00:11:53] Speaker 05: If there is an approximate balance, the Secretary must apply. [00:11:58] Speaker 05: The Secretary has no discretion, must afford the benefit of the doubt. [00:12:02] Speaker 05: If they find that it is not in approximate balance, and that's what we're talking about here, is the ultimate conclusion. [00:12:09] Speaker 05: Not re-reviewing the facts, but examining the facts [00:12:13] Speaker 05: to answer the ultimate question. [00:12:15] Speaker 02: You're into your bottle time. [00:12:17] Speaker 02: You want to save it or continue? [00:12:19] Speaker 05: Both, Your Honor. [00:12:23] Speaker 05: But since I probably don't have that option, I will sit down. [00:12:28] Speaker 02: Mr. Whistler. [00:12:31] Speaker 00: Thank you, Your Honor. [00:12:32] Speaker 03: Before the 2002 amendments, which added the words take due account, the CAVC was required to take due account. [00:12:42] Speaker 03: Really benefit of the doubt in an A1 analysis, correct? [00:12:47] Speaker 00: Your honor, it's required to review the board's decision and any findings, conclusions, factual determinations under the review. [00:12:53] Speaker 03: If the question was presented dealing with the benefit of the doubt before 1992, the CABC was required to take into account. [00:13:03] Speaker 00: Yes, your honor, it was authorized to review it. [00:13:05] Speaker 03: And then Congress comes along and adds B1 to something that was already required. [00:13:12] Speaker 03: So what does taking due account meant to me? [00:13:15] Speaker 03: Was it just hortatory, as I say? [00:13:19] Speaker 03: You know, there's been some question raised about whether or not you've been paying sufficient attention. [00:13:24] Speaker 03: Please pay attention. [00:13:25] Speaker 00: Yes, Your Honor. [00:13:26] Speaker 00: We agree it could be interpreted as foratory, but we do think there is some additional work that B-1 is doing here. [00:13:33] Speaker 00: And it's doing two things in particular. [00:13:34] Speaker 00: The first is, if we look at the heading of B, it does clearly articulate that for these two reviews, not just benefit of the doubt, but also prejudicial error, the court should and is mandated to look at all of the evidence in the record. [00:13:48] Speaker 00: So there could be material, as Mr. Carver suggested. [00:13:50] Speaker 03: Well, they weren't mandated to look at all the evidence in the record under an A-1 challenge? [00:13:54] Speaker 00: Well, ordinarily, your honor, if there is an issue that is not presented within the four corners of the board decision, the court is not required to address it. [00:14:02] Speaker 00: It can as a matter of discretion. [00:14:04] Speaker 00: But if it's not presented by the parties or through the board decision, the court doesn't necessarily need to address it. [00:14:09] Speaker 00: Well, we understand. [00:14:10] Speaker 00: both subsections of B here, one and two, to be telling the Veterans Court is that for prejudicial error analysis or for benefit of the doubt analysis, there might be an issue that is not squarely presented within the board's decision alone. [00:14:24] Speaker 00: You have an obligation, and I think Your Honor mentioned some of the legislative history. [00:14:28] Speaker 03: Congress. [00:14:29] Speaker 03: That's what I'm trying to get at. [00:14:30] Speaker 00: Right. [00:14:30] Speaker 03: Because you're now telling me that there is a question about what it really means, what taking due account [00:14:38] Speaker 03: of the benefit out was meant. [00:14:40] Speaker 03: It was meant to add something. [00:14:41] Speaker 00: And Your Honor, what the legislative history suggests, and it's repeated a couple of times in the materials we cited, is that Congress wanted the Veterans Court to conduct what they called a searching review, meaning look beyond necessarily the issues squarely presented in the board decision and the evidence. [00:14:56] Speaker 03: The searching review is something that might not have happened under A-1. [00:14:59] Speaker 00: That's potentially true, Your Honor. [00:15:01] Speaker 00: And I think the difference is... You mean that? [00:15:03] Speaker 03: Well, Your Honor, what we... I'm about to peel over with disbelief, you know, because I would have [00:15:08] Speaker 03: didn't understand from your briefs, because you thought Mr. Carpenter had presented an ingenuous issue of law. [00:15:17] Speaker 00: And what I want to make clear, Your Honor. [00:15:18] Speaker 03: Do you agree now that we are trying to interpret a question of law in this case? [00:15:22] Speaker 00: In this particular issue, in terms of the standard review, yes. [00:15:25] Speaker 00: in terms of how it might apply to this case, that's the boundary we were trying to draw that. [00:15:29] Speaker 03: What am I supposed to think Congress meant when it said take due account? [00:15:34] Speaker 03: Isn't that a statutory interpretation question? [00:15:36] Speaker 03: It is, Your Honor. [00:15:37] Speaker 03: And as we explained- Is that important with our jurisdiction? [00:15:39] Speaker 00: It is, Your Honor. [00:15:41] Speaker 00: If it's purely a question of the standard of review, that is something this court can decide. [00:15:45] Speaker 03: As we- Oh, the standard of review. [00:15:46] Speaker 03: I mean, the standard of review by the CAVC, right? [00:15:49] Speaker 00: That's correct. [00:15:50] Speaker 03: And that's just, yeah, so. [00:15:51] Speaker 00: That's correct, Your Honor. [00:15:52] Speaker 03: And so you kind of take back your [00:15:54] Speaker 03: Well, you're on page four. [00:15:56] Speaker 03: Under summary of the argument, we should dismiss this appeal because he hasn't presented a question of the law. [00:16:03] Speaker 00: Well, it was depending on exactly what issue Mr. Carpenter was presenting. [00:16:06] Speaker 00: He sort of took two paths. [00:16:08] Speaker 03: Assuming he's presenting a question that we've been talking about now. [00:16:11] Speaker 00: Yes, Your Honor. [00:16:11] Speaker 00: We don't dispute that the issue as he's presented here in the argument is something the court's imperative to decide. [00:16:15] Speaker 03: Tell me a little bit more about what it is that gets added about this searching review because it [00:16:20] Speaker 03: isn't clear to me that the CAVC understood in this case. [00:16:25] Speaker 03: Its opinion doesn't suggest that it got it, that there was extra. [00:16:30] Speaker 03: Because Mr. Carpenter clearly presented this question, you would agree, wouldn't you, to the CAVC? [00:16:36] Speaker 00: Yes, Your Honor. [00:16:36] Speaker 00: And I'll answer it in two parts. [00:16:37] Speaker 00: I'll start with the application in this case particular, and then I'll speak more broadly. [00:16:41] Speaker 00: OK, thank you. [00:16:42] Speaker 00: First about this case in particular, I think one of the keys to understanding why the Veterans Court decision was fairly perfunctory on this issue [00:16:50] Speaker 00: is because, as it noted at appendix seven and eight in its decision, Mr. Thornton below didn't challenge the actual weighing of the evidence, didn't challenge the conclusion that there was an approximate balance. [00:17:04] Speaker 00: And so the court went out of its way to note that in this particular case, it didn't really have much to do. [00:17:10] Speaker 00: Because as this court emphasized in the Ferguson case more than 20 years ago, really the bulk of the benefit of the data analysis is on the weighing of the evidence, as Mr. Carpenter, I think, agreed. [00:17:19] Speaker 00: The actual decision as to whether to apply the benefit of the doubt is fairly mechanical. [00:17:24] Speaker 00: If the evidence balanced, you do. [00:17:26] Speaker 00: If it's not balanced, you don't. [00:17:29] Speaker 00: And I would like to compare this case to one of the others we cited, which was a Mariano case also. [00:17:34] Speaker 03: Mariano, he loves Mariano. [00:17:36] Speaker 03: He said in his brief, well, Mariano was a classic example of how they're supposed to do it. [00:17:40] Speaker 00: That's correct, Your Honor. [00:17:41] Speaker 00: And that's because in Mariano, there was actual discussion and challenge as to whether the record was sufficient. [00:17:47] Speaker 03: There was a searching review, you would say, of the facts in that case, because there was the challenge. [00:17:53] Speaker 00: That's right, Your Honor. [00:17:54] Speaker 03: So is it your argument that this isn't the right case to decide this issue? [00:17:57] Speaker 00: Well, no, the argument is more so that I think what I heard Mr. Carpenter say at the opening of his argument was that the Veterans Court has never had an opportunity to address this question and explain itself. [00:18:07] Speaker 00: We think it did in Mariano 20 years ago. [00:18:09] Speaker 03: Well, he agrees that Mariano was an acceptable application of the taking into account of. [00:18:16] Speaker 00: And we agree as well, Your Honor. [00:18:18] Speaker 03: What I'm struggling in my mind was the first place I'm getting over my shock of the fact that you're giving some credence to Thornton's [00:18:27] Speaker 03: Statutory interpretation question and trying to help us understand what was meant by any of Iowa thought you were going to say that those words were purely horse-drawn just an exhortation or just make certain you do and I can address that point now your honor as well So but you feel it's more than that. [00:18:42] Speaker 00: We do feel like there's a little more than that. [00:18:44] Speaker 03: I don't want to overweight it It's you know, obviously I mean if you're this is almost like patent law me if you open up a crack this big [00:18:52] Speaker 03: and how veterans cases are administered, it's a crack that's a grand canyon. [00:18:59] Speaker 03: We have to be very, very careful in what we say if we're going to be giving instructions to the CDBC about how to do things. [00:19:05] Speaker 00: That's right. [00:19:06] Speaker 00: And this is why, Your Honor, we don't feel like this is necessarily a totally novel issue because of the fact that we have these two provisions in parallel next to each other under the same heading. [00:19:15] Speaker 00: And so as this Court and the Supreme Court has explained multiple times, you have to interpret them similarly. [00:19:18] Speaker 00: We have the Tadlock decision that this Court issued last year. [00:19:21] Speaker 00: discussing how it means to take due account of the rule of prejudicial error. [00:19:27] Speaker 00: And this court explained the meets and bounds of that analysis, and we believe those same meets and bounds would apply here as well, to say that when Congress was directing Veterans Court to take due account of either rule, [00:19:40] Speaker 00: It is opening the door a little bit. [00:19:42] Speaker 00: It's saying, you know, there might be something in the underlying record that the board didn't discuss or the parties may not have even presented to the board. [00:19:49] Speaker 00: The court does have an obligation to at least do a check, to at least do a review of the underlying record and make sure that there's nothing anybody missed. [00:19:57] Speaker 00: But that is a fairly narrow and cabinet analysis, as this court made clear in Tadlock. [00:20:02] Speaker 00: The Veterans Court is not empowered to make factual findings in the first place. [00:20:05] Speaker 03: OK, let's just slow down for a second. [00:20:06] Speaker 03: Yes, sir. [00:20:07] Speaker 03: So if you don't mind. [00:20:10] Speaker 03: extra review is going to be made to make certain that there isn't something in the secretary's record that got missed. [00:20:19] Speaker 03: Is that an independent, that's an initial review, the CAVC is doing that, and Mr. Carpenter's words, de novo, [00:20:28] Speaker 03: is that right now we don't believe it's a novel review of what was that's really you know the work yes i mean what so that the other limitation that's really really well to get rid of the cvc lean back and see now it's our turn to do a deep dive to see whether there's anything in the record that got missed [00:20:44] Speaker 00: Right, Your Honor. [00:20:47] Speaker 00: And we would point to the very first clause of subsection B, which says, in making the determinations under subsection A. So it's very clear that this is a subsidiary analysis. [00:20:55] Speaker 00: It's not a totally new second analysis that's being done here. [00:21:00] Speaker 00: It's just that in conducting the deferential review, reviewing factual findings for clear error, otherwise reviewing for arbitrary capricious contrary to law. [00:21:09] Speaker 03: Isn't that something that they were obligated to do before? [00:21:12] Speaker 03: Before these words were added? [00:21:14] Speaker 03: Wouldn't we have reversed them if they hadn't done that? [00:21:19] Speaker 03: This extra look, because the statute is very, very clear that the record that's in front of the CAVC in every case it has is the record that was in front of the secretary and the record in front of the board, correct? [00:21:33] Speaker 00: That's correct, Your Honor. [00:21:33] Speaker 03: So the entire record is there already. [00:21:36] Speaker 03: And when an issue is raised, right? [00:21:39] Speaker 03: Is this what you're trying to tell me is that maybe a veteran forgets to raise it himself? [00:21:45] Speaker 00: That's where we believe there might be a slight difference here, Your Honor, and what the Veterans Court was obligated to do before this amendment and after. [00:21:50] Speaker 03: It's sort of like it was a pro se person, even though they have a lawyer, we're going to do this extra look. [00:21:55] Speaker 00: That's right, Your Honor. [00:21:56] Speaker 00: We understand B1 to be affirmatively directing the Veterans Court to make sure that the benefit of the doubt rule was applied correctly, even if perhaps it was not squarely addressed by the board and not raised by the parties. [00:22:10] Speaker 01: I think you've been very clear about that. [00:22:12] Speaker 01: When you started, you said there were maybe two things. [00:22:15] Speaker 01: that you thought the due account requires beyond what A already required? [00:22:19] Speaker 01: Have you told us what the second thing is? [00:22:20] Speaker 00: So the second one is, and I don't think there's much disagreement here, the second one is what this court explained previously, which is that it empowers the, in this Conway decision, that empowers the Veterans Court to simply reverse. [00:22:33] Speaker 00: that if the Veterans Court does find that there was some underlying clear error in the determinations, the Veterans Court's empowered to reverse. [00:22:42] Speaker 00: It doesn't have to remain. [00:22:42] Speaker 01: And that couldn't be done under A before B1 was added. [00:22:46] Speaker 00: That's correct. [00:22:47] Speaker 00: And that point has been addressed by this court previously. [00:22:49] Speaker 03: That looked like it was part of the compromise as to how we're going to try to ensure there is more careful attention paid to this particular issue. [00:22:56] Speaker 00: That's correct, Your Honor. [00:22:57] Speaker 03: Now, did you have an opportunity to do a little deep dive in the 1988 legislative history? [00:23:04] Speaker 00: Not as much in this case, Your Honor. [00:23:05] Speaker 00: I did some in the Lynch preparations. [00:23:08] Speaker 03: But it's not there, right? [00:23:09] Speaker 03: Not the same amount? [00:23:10] Speaker 00: No, Your Honor. [00:23:11] Speaker 03: So my recollection of that legislative history was that it was primarily a question of, we're creating this new court. [00:23:18] Speaker 03: And we're going to give this court some powers, right? [00:23:21] Speaker 03: And so we've got it on the list and give them the powers. [00:23:24] Speaker 03: And they're talking about, should we give them complete APA review, like substantial evidence? [00:23:28] Speaker 00: That's right, Your Honor. [00:23:29] Speaker 03: And they know I'm not going to do that, but they wanted to make certain that at least this aspect of the APA was front and center, correct? [00:23:37] Speaker 00: That's correct. [00:23:37] Speaker 00: And I think, Your Honor, summarize. [00:23:39] Speaker 03: But there wasn't any legislative history of the Secretary coming in and saying, oh my god, the BVA [00:23:46] Speaker 03: has been failing to apply provincial air. [00:23:49] Speaker 00: No, Your Honor, we didn't notice any of that. [00:23:50] Speaker 03: And I would also- You want to know as a matter of history whether the BVA did apply provincial air before 1988? [00:23:57] Speaker 00: I will admit, I don't know off the top of my head, Your Honor. [00:24:01] Speaker 00: I don't want to speculate on that. [00:24:02] Speaker 03: It would be interesting to know. [00:24:03] Speaker 00: Yeah, I don't know that, Your Honor. [00:24:05] Speaker 00: I would point though, I think Your Honor summarized the relevant legislative history here for 2002 fairly well with Mr. Carpenter's presentation, but I would specifically address the court to page S11337, which is of the report that has the joint explanatory statement from the House and the Senate Veterans Affairs Committees. [00:24:24] Speaker 00: And on that page, they specifically said, as Your Honor summarized, we considered modifying the evidentiary review standard, we considered lowering it to substantial evidence one step above de novo, but we decided not to, and it was specifically stated that we did not because they did not want any additional confusion about how this was going to unfold. [00:24:44] Speaker 00: They believed that the existing standard of review was clear, everybody knew what to expect, and they did not want to inject further uncertainty here, which is [00:24:51] Speaker 00: exactly the position that Mr. Thornton is attempting to do now, Congress considered it and foreclosed it. [00:24:57] Speaker 01: 5107B is the statutory basis for the application of the benefit of the doubt rule, correct? [00:25:02] Speaker 00: Yes, Your Honor. [00:25:02] Speaker 01: Now, it only refers to, I think, the secretary. [00:25:05] Speaker 01: It doesn't refer to the board. [00:25:06] Speaker 01: Is that right? [00:25:07] Speaker 00: That's right, Your Honor. [00:25:08] Speaker 01: And this gets to... I don't know if that helps you or hurts you. [00:25:11] Speaker 00: Can you comment on that? [00:25:14] Speaker 00: We acknowledge that there is some inconsistency in 7261. [00:25:18] Speaker 00: In some places Congress is referring to secretary in the board sort of in serial. [00:25:22] Speaker 00: Sometimes they're referring just to the secretary. [00:25:25] Speaker 00: We do acknowledge, and I don't think we've ever disagreed, that the reference to the secretary throughout is generally understood to be [00:25:31] Speaker 00: comprehensive and includes the board acting as the secretary's agent as well as the general process leading up to the board decision. [00:25:38] Speaker 01: So you agree, notwithstanding 5107 not calling out the board, the board has an obligation to account, correct? [00:25:45] Speaker 00: And we would point out that if you were to take that exclusion literally to say that because in 7261 there are some places where Congress references secretary and board and some places where it just references secretary, [00:25:58] Speaker 00: If you were to take that literally, then B1, saying take through account of secretary's application 5107, would foreclose reviewing the board's application in the same way 5107 would [00:26:09] Speaker 00: require the secretary, but foreclose the board from applying the benefit of the doubt. [00:26:13] Speaker 01: But at least wouldn't require the board to do it. [00:26:15] Speaker 01: I don't know if it would foreclose it. [00:26:17] Speaker 00: Well, but if we're going to take the implication that Congress was purposeful in dividing out secretary versus board in 7261, and there's a cross-reference to 5107, that could be read to mean that by implication the reference exclusively to the secretary is exclusive of the board in 5107. [00:26:34] Speaker 00: We don't think that's correct. [00:26:36] Speaker 00: We think it actually probably went the other way, that because 5107 is general, it refers to the secretary. [00:26:42] Speaker 00: We've always understood that to include the board. [00:26:44] Speaker 03: The obligation obviously begins at the RO. [00:26:46] Speaker 00: That's right, Your Honor. [00:26:47] Speaker 03: That's where it starts. [00:26:48] Speaker 00: And we've always understood 5107 to be secretary in the broad sense, right? [00:26:52] Speaker 00: The way Congress usually writes statutes, it specifies the agency head, and then there are further delegations that may be enacted. [00:26:58] Speaker 00: So we actually understand the logic probably went [00:27:01] Speaker 00: in the reverse, that when Congress was expressly cross-referencing 5107 here in 7261b, it likely was just referencing the secretary as shorthand because that's what 5107 said. [00:27:12] Speaker 01: But then why does that allow the court to fulfill its obligation under 7261b by only talking about the board and not also expressly talking about the secretary? [00:27:23] Speaker 00: Well, it doesn't, Your Honor. [00:27:24] Speaker 00: And that's what we're trying to say is that [00:27:27] Speaker 00: We understand B1, the secretary's application, to be secretary in the broad sense, that it includes all support. [00:27:33] Speaker 01: And therefore, it can be satisfied by only reviewing the board? [00:27:37] Speaker 00: No, Your Honor. [00:27:37] Speaker 00: We don't disagree that the underlying record to be reviewed is the full record, starting from the initial claim all the way through the board decision. [00:27:45] Speaker 03: That's clear from the face of 7261A. [00:27:48] Speaker 00: Yes, Your Honor. [00:27:49] Speaker 00: And so we don't understand that this reference to the secretary in B1 in any way cabins that, that it is still the full gamut. [00:27:56] Speaker 00: You start from the very beginning of the claim all the way through the board decision. [00:28:00] Speaker 00: That is the record that the court of veterans claim. [00:28:03] Speaker 03: So it's basically taking into account is that when a case gets to the CAVC, they look at the entirety of the record and they make certain that any evidence pertinent to the question [00:28:17] Speaker 03: of the man for the doubt has been observed and has been dealt with. [00:28:21] Speaker 00: That's right, Your Honor. [00:28:22] Speaker 00: And in my last minute here, if I may just make one final statement, Your Honor, I would just, again, reemphasize that this makes a lot of sense tied together with the rule of prejudicial error. [00:28:33] Speaker 00: Because as courts recognize all over the place, when you're looking at prejudicial error, you're necessarily maybe looking at something that the underlying tribunal didn't look at, because you're engaged in a counterfactual analysis. [00:28:45] Speaker 00: And so the court is instructed [00:28:47] Speaker 00: to go beyond the four corners of the lower decision. [00:28:50] Speaker 00: And so it makes sense that these two provisions are paired in that sense in terms of adding that little bit extra Congress was directing the court to do, to say go beyond the four corners of just the board's decision and make sure that there is nothing in the record that would otherwise implicate or find a clear error in the benefit of the data analysis. [00:29:11] Speaker 03: Since we know that Congress has specified that there are two issues, one typically favors the secretary and the other typically favors the veteran, or two areas where the deep dive is required by the CAVC to inspect the entire record to make certain nothing got missed, can I assume that with respect to all other veterans' issues, the CAVC does not have an obligation to do a deep dive? [00:29:33] Speaker 00: Not an affirmative obligation in the same way, Your Honor. [00:29:36] Speaker 00: Obviously, if there's an issue... What does that mean? [00:29:38] Speaker 03: I mean, this is Canada's honor for your... [00:29:41] Speaker 03: colleague here from future cases, I'm sure. [00:29:43] Speaker 00: Well, because, Your Honor, the review under subsection A is well-defined. [00:29:47] Speaker 00: It's the APA review. [00:29:48] Speaker 00: You look at the decision of the lower tribunal in light of the underlying record. [00:29:53] Speaker 03: The only thing we're saying that... But it would be an obligation to do that with regard to all issues in variance cases exists under 7261A1, right? [00:30:00] Speaker 00: That's true for issues that are preserved and presented. [00:30:04] Speaker 00: And so what we think subsection B is doing is adding a little bit beyond that to say the benefit of the doubt rule might be reviewable, even if not preserved and presented in the same way an ordinary issue might be. [00:30:14] Speaker 02: Thank you, counsel. [00:30:15] Speaker 02: Thank you. [00:30:18] Speaker 02: We'll give you four minutes for a bottle. [00:30:22] Speaker 05: Thank you very much. [00:30:26] Speaker 03: You're feeling better, right? [00:30:28] Speaker 05: I most certainly am, Your Honor, because I apparently read a completely different brief than [00:30:33] Speaker 03: Well, I didn't see the fine-tuning that we have now. [00:30:40] Speaker 05: Well, and that's frankly because this is a very subtle area. [00:30:44] Speaker 03: So, assuming that I agree with your adversary here, do you have any problems? [00:30:53] Speaker 05: The only... I don't have a problem. [00:30:56] Speaker 03: Isn't he, in essence, embracing [00:30:59] Speaker 03: you're embracing mariano that's exactly what i heard and that something more needs to be done okay i mean is that assuming that it has an opinion would be written in this case because you did present a question of law for us to review isn't the embrace of mariano the answer here it is your honor except that it doesn't give [00:31:26] Speaker 05: the Veterans Court a clear understanding of what it means to take due account of the Secretary's application. [00:31:33] Speaker 05: And I think that's the part. [00:31:35] Speaker 03: Oh, you heard the exegesis from your adversary here about what it really means. [00:31:40] Speaker 03: It's this deep dive to say make certain. [00:31:44] Speaker 03: And I thought you would love this because he said he's suggesting that even if the issue wasn't, even if the fact question wasn't presented. [00:31:51] Speaker 05: Wasn't raised. [00:31:53] Speaker 05: Absolutely, Your Honor. [00:31:54] Speaker 03: So that was what puzzled me. [00:31:55] Speaker 03: I didn't have a chance to pursue with him when he sat down. [00:31:59] Speaker 03: But he was suggesting to me that even in a case where the veteran hadn't presented the factual challenge as you did not in this case, there still was a duty to deep six look at the record. [00:32:13] Speaker 05: Yes, because that's what Congress meant when he added this section. [00:32:17] Speaker 03: I wish I had a chance to talk to him again, because it's centrally important. [00:32:23] Speaker 05: But I think also centrally important in this case is to communicate to the Veterans Court what they are to do with the taking due account of. [00:32:35] Speaker 05: When they take that deep dive and they collect all of that evidence, how do they determine what are the parameters of their obligation under 7261B1? [00:32:46] Speaker 01: In that regard, in this case, [00:32:49] Speaker 01: did the veterans court take sufficient to account of the board's application of the benefit of the doubt rule and i emphasize or because i know you say they didn't do anything with respect to the secretary today we still enough with respect to the board's application of the right i don't believe they did your honor and that's and that's why i'm going to this last point because it seems to me that understanding how you address as a reviewing court whether the evidence [00:33:18] Speaker 05: in its totality based upon this deep dive is or isn't in approximate balance to me this is a completely different issue than was recently dealt with by this court about whether or not preponderance of evidence is the standard. [00:33:33] Speaker 01: Can you help us just a little bit on what they failed to do to meet their obligation to take account of the board? [00:33:41] Speaker 05: Right. [00:33:41] Speaker 05: That they failed to look at the actual evidence and determined whether or not [00:33:47] Speaker 05: that actual evidence required the application of the benefit of the fact that they need to make a fact-finding no it is not a fact-finding it is a legal determination as to whether or not there is or isn't an approximate balance we have to make that a legal determination because it was a lawyer you undercut the entire point of having the benefit of the doubt mandatory you didn't challenge i did not your honor and i just offered their [00:34:17] Speaker 03: The statute requires the CABC to the extent necessary to a question when presented. [00:34:26] Speaker 03: So you did not present a question of whether or not the facts were correctly found by the board. [00:34:33] Speaker 05: And to that extent, then I may not be able to answer [00:34:37] Speaker 05: Judge Stark's question. [00:34:39] Speaker 05: My question is. [00:34:39] Speaker 05: The government has conceded that this 7261B1 goes beyond A. That there are things. [00:34:47] Speaker 03: No, no, no, no, no, no. [00:34:48] Speaker 03: He did not say that. [00:34:49] Speaker 05: He said that B1 is a part of A. It is a part of A, but it goes for a deep dive into all of the evidence that is available. [00:34:59] Speaker 03: Even if not presented. [00:35:00] Speaker 05: Even if not presented. [00:35:01] Speaker 03: That's your view. [00:35:02] Speaker 03: And that, yes, that is my view. [00:35:03] Speaker 03: And now we have to interpret what presented means in A. [00:35:06] Speaker 05: Correct. [00:35:07] Speaker 03: Because- So that's not briefed or argued? [00:35:10] Speaker 05: No, Your Honor. [00:35:12] Speaker 05: That was not briefed. [00:35:13] Speaker 03: It is- But look, Mr. Carpenter, if we're going to write an opinion where we say the CAVC, at least with regard to these two issues, benefited now and president later, that even if the issue isn't presented to the CAVC by a pro se or by a lawyer, the court still has an obligation to do a deep dive. [00:35:36] Speaker 03: Yes. [00:35:38] Speaker 03: That is earth-shaking, as you understand. [00:35:40] Speaker 03: You know that. [00:35:42] Speaker 05: I most certainly do, Your Honor. [00:35:43] Speaker 05: The ground is shaking right now underneath me. [00:35:46] Speaker 05: That was what, as you pointed out, existed prior to judicial review and has existed since the 1930s. [00:35:52] Speaker 05: This has been the fulcrum under which the specialness, the uniqueness of the VA adjudicatory system is the benefit of the outcome. [00:36:03] Speaker 03: I don't know whether my colleagues are here. [00:36:05] Speaker 03: I would benefit from additional briefing on whether or not this B1 test requires [00:36:12] Speaker 03: that the CAVC review an issue not presented to it, i.e. [00:36:16] Speaker 03: the facts. [00:36:17] Speaker 05: I would be happy to do that. [00:36:18] Speaker 03: You've got to be able to do it in 20 pages or less with citations if you can. [00:36:24] Speaker 03: I mean, if we are going to hold that the statute says that the power of the CAVC is limited to issues presented to it, and you're telling me that B1 has changed that law. [00:36:40] Speaker 05: Yes. [00:36:41] Speaker 03: to say that, at least with regard to B1 and probably B2. [00:36:45] Speaker 03: Yes, Your Honor. [00:36:47] Speaker 03: It would say, in this decision, and wouldn't present it, except with regard to B1 and B2. [00:36:53] Speaker 02: Do we want to request additional briefings? [00:36:57] Speaker 02: Simultaneous. [00:36:59] Speaker 02: 20 pages or less? [00:37:01] Speaker 02: 20 pages or less. [00:37:03] Speaker 02: Aye. [00:37:08] Speaker 03: Two weeks? [00:37:10] Speaker 05: Two weeks will work for me. [00:37:11] Speaker 03: I've got a second argument this week. [00:37:13] Speaker 03: I don't want to press the government either. [00:37:15] Speaker 00: Give me a chance to read my calendar for one second. [00:37:20] Speaker 03: Two weeks, and if you need more time, give us a motion requesting and telling us why. [00:37:26] Speaker 03: Am I wrong in sensing that this is a very important issue? [00:37:34] Speaker 05: Absolutely not, Your Honor. [00:37:36] Speaker 05: I'm looking at the government, too. [00:37:37] Speaker 05: Oh, excuse me. [00:37:37] Speaker 05: I'm sorry. [00:37:40] Speaker 00: Sorry, let me just look at my calendar first. [00:37:43] Speaker 00: The two weeks brings us to Monday the 19th. [00:37:48] Speaker 00: If we could have maybe just the end of that week, it would be the 23rd. [00:37:51] Speaker 03: 23rd, sure. [00:37:53] Speaker 02: Thank you, counsel. [00:37:54] Speaker 02: I think we have both arguments. [00:37:56] Speaker 02: And you can be sure we'll take due account of your argument. [00:38:01] Speaker 04: Both of your arguments. [00:38:03] Speaker 02: Case is submitted.