[00:00:00] Speaker 04:
So our next case is number 22, 1883, Johnson versus McDonough.

[00:00:06] Speaker 00:
May it please the court?

[00:00:07] Speaker 04:
No, you have to wait for me to call on you.

[00:00:10] Speaker 00:
Of course.

[00:00:10] Speaker 00:
Apologies, Your Honor.

[00:00:11] Speaker 04:
It's avocado.

[00:00:12] Speaker 04:
Okay, go ahead.

[00:00:15] Speaker 04:
Go ahead.

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

[00:00:16] Speaker 00:
Alexandra Avocado for Appellant George Johnson.

[00:00:19] Speaker 00:
I'd like to reserve three minutes for rebuttal.

[00:00:22] Speaker 00:
There's no dispute here that VA doctors committed an error in judgment when they punctured Mr. Johnson's colon and then failed to diagnose.

[00:00:29] Speaker 04:
Why don't we discuss first the question of finality?

[00:00:31] Speaker 04:
I mean, you presented in your opening brief argument that there was a final judgment here.

[00:00:41] Speaker 04:
and yet that argument would seem to be directly inconsistent with Williams and the cases that followed it.

[00:00:49] Speaker 04:
And putting aside the question of forfeiture, there doesn't seem to be much of an argument that this satisfies the Williams finality standard.

[00:01:00] Speaker 04:
Is there such an argument?

[00:01:02] Speaker 00:
We do believe there is, Your Honor.

[00:01:15] Speaker 00:
that the rule in Adams is that when an appellant has a colorable argument that the very fact of remand will violate his rights, then this court reviews that remand order.

[00:01:25] Speaker 04:
How does a remand here violate his rights?

[00:01:28] Speaker 04:
It's just not deciding an issue which would remain open on an appeal from a final resolution.

[00:01:36] Speaker 00:
We disagree with that characterization, Your Honor, because here the very fact of the Veterans Court's remand order will force Mr. Johnson to undergo a proceeding that will violate his due process right.

[00:01:46] Speaker 04:
It's true of every remand.

[00:01:49] Speaker 04:
That doesn't distinguish this case from many others where we've held that remands, where there's a remand, there's not a final order.

[00:01:57] Speaker 04:
I mean, if he wins on the remanded issue,

[00:01:59] Speaker 04:
the issues that you're seeking to argue here today become irrelevant, right?

[00:02:05] Speaker 00:
This case is different from previous cases where this court has declined to review remand orders because in those cases an appellant was simply arguing that there might be some legal error in the remand proceeding, usually a misinterpretation of a statute or regulation.

[00:02:19] Speaker 00:
The argument here that the very fact of remand will violate Mr. Johnson's constitutional rights.

[00:02:24] Speaker 04:
How does it violate his rights?

[00:02:26] Speaker 04:
I don't understand that.

[00:02:27] Speaker 00:
So we think, again, we think that Adams applies here.

[00:02:31] Speaker 00:
There the appellant argued that the Veterans Court did not have the authority to order the particular remand it ordered there.

[00:02:38] Speaker 00:
So too here, if Mr. Johnson is correct, that the Veterans Court didn't have the authority to order a remand with the changed record evidence.

[00:02:45] Speaker 04:
They didn't have the authority?

[00:02:48] Speaker 04:
You never argued they didn't have the authority to order a remand.

[00:02:51] Speaker 00:
we we did your honor i think you're if you look to our reply brief we argue that the relief we're seeking is a remand in which mister johnson seek entitlement to an earlier active date without the tainted record evidence and so there we were challenging the remand order that the veterans court ordered on the argument that that remand order would be fundamentally unfair proceeding and so we do think we've raised this argument below what this is

[00:03:18] Speaker 04:
the due process issue have to do with the availability of the records, which is the subject of the remand?

[00:03:27] Speaker 00:
We don't think that's the correct question here.

[00:03:30] Speaker 04:
But answer it even if it's not the correct question.

[00:03:33] Speaker 00:
Your Honor, we do think that there is a relationship between those two issues in that, given that the tainted evidence will still be in the record, that will affect Mr. Johnson's, the strength of Mr. Johnson's arguments on the remanded Q claims because of that fair evidence in the record.

[00:03:48] Speaker 00:
And, of course, it will still subject Mr. Johnson to a fundamentally unfair proceeding.

[00:03:54] Speaker 00:
And I just want to highlight that in cases like Adams, the question that this court asks is not whether there could be some hypothetical future remand that would be fair.

[00:04:04] Speaker 00:
It asks whether the remand order that the appellant is currently challenging will violate their legal rights.

[00:04:09] Speaker 00:
Once the answer to that question is yes, I believe Adams instructs that this court should review that remand order.

[00:04:15] Speaker 00:
And maybe at this point, it would be helpful to explain why these fundamentally unfair aspects of the record violated Mr. Johnson's due process rights.

[00:04:25] Speaker 00:
Go ahead.

[00:04:25] Speaker 00:
I'd like to begin with her arguments that Dr. Fromm was a decision maker on the facts of this case.

[00:04:31] Speaker 00:
And here I think it's important to look to the very beginning of the procedural history of Mr. Johnson's benefits claim.

[00:04:38] Speaker 00:
The regional office initially denied Mr. Johnson's claim.

[00:04:41] Speaker 00:
And it was only when Mr. Johnson filed a notice of disagreement that the regional office solicited Dr. Fromm's opinion.

[00:04:48] Speaker 00:
When it did so, it didn't solicit any other evidence, and the regional office tasked Dr. Fromm with deciding the ultimate legal issue that the office was tasked with deciding, whether Mr. Johnson had an additional disability and whether that was the fault of the VA.

[00:05:02] Speaker 02:
Didn't they task him with giving an opinion on that so that they could make the decision?

[00:05:07] Speaker 00:
That may be how the relationship breakdown between medical examiners and the regional office should occur in most instances, but we think that as a practical matter here, the fact that Dr. Fromm's opinion was the only evidence that the regional office was going to be considering in reconsidering Mr. Johnson's claim,

[00:05:27] Speaker 00:
made has effectively meant that the regional office was going to adopt that conclusory opinion.

[00:05:32] Speaker 02:
That's an argument that the whole process was a sham, which I don't think you've really made.

[00:05:37] Speaker 00:
We don't think that a finding to that effect is necessary and we certainly don't think that

[00:05:43] Speaker 00:
every time a VA medical examiner is offering an opinion that he becomes a decision-maker.

[00:05:49] Speaker 00:
It's just on the unique posture of this case where it was only Dr. Fromm's opinion that was going to be conclusive to the regional office's determination that his opinion effectively cut off any further inquiry into the benefits claim and where his role became that of a quasi-judicial decision-maker.

[00:06:06] Speaker 00:
Just to stress, we're certainly not arguing that this breakdown happens in every case.

[00:06:10] Speaker 02:
Why are these even due process claims?

[00:06:13] Speaker 02:
Couldn't you have in an earlier part of the proceeding or now on the remand, can't you just put your factual challenges to this evidence that you say is tainted for the decision maker?

[00:06:28] Speaker 00:
No, Your Honor.

[00:06:29] Speaker 00:
We don't think that's a cure.

[00:06:30] Speaker 00:
And I think this goes to why the government's reliant.

[00:06:33] Speaker 02:
OK.

[00:06:33] Speaker 02:
I'm happy to hear why it's not a cure.

[00:06:34] Speaker 02:
But you can do that, right, on the remand?

[00:06:37] Speaker 02:
You can put these arguments in front of the court?

[00:06:40] Speaker 00:
We're not sure whether that's possible.

[00:06:43] Speaker 00:
Again, the Veterans Court's remand order, unlike other remand orders, didn't offer Mr. Johnson the opportunity to renew these arguments before the board.

[00:06:52] Speaker 00:
But even if he were able to do so, the fact that Mr. Johnson might be able to challenge the fairness and veracity of that evidence doesn't address the due process violation that occurred from the entry of this tainted evidence in the record.

[00:07:06] Speaker 03:
But I'm looking at, I guess, the document that's at page 3792 through 93 of the Joint Appendix.

[00:07:17] Speaker 03:
This shows that both what I'll call, by way of shorthand, the Wallace issue and the Fromm issue were known to Mr. Johnson.

[00:07:29] Speaker 03:
And he had a chance to explore this issue.

[00:07:36] Speaker 03:
didn't agree or the board found no problem.

[00:07:41] Speaker 03:
We know the decision the board made in 03.

[00:07:44] Speaker 03:
Is this really a due process violation?

[00:07:46] Speaker 03:
This seems to be different from the cases like Cushman where we found violations.

[00:07:53] Speaker 03:
Here, the evidence was there, everybody knew what the evidence was saying, and it was adjudicated, if you will, by the board.

[00:08:01] Speaker 00:
We do think that this case is still squarely controlled by Cushman.

[00:08:05] Speaker 00:
There's no meaningful due process distinction here.

[00:08:08] Speaker 00:
based on the fact that Mr. Johnson was aware of this evidence in the record.

[00:08:12] Speaker 00:
And again, that's because simply giving a litigant the opportunity to challenge the veracity or fairness of fundamentally unfair evidence does not cure a due process violation arising from that.

[00:08:24] Speaker 03:
Evidence comes in all the time where there's a dispute about whether it's

[00:08:29] Speaker 03:
proves the case or doesn't prove the case.

[00:08:31] Speaker 03:
Isn't that what we have here?

[00:08:32] Speaker 00:
No, Your Honor.

[00:08:34] Speaker 00:
So on our theory that Dr. Fromm is a biased decision-maker, the government... But he's not a decision-maker, he's a witness.

[00:08:40] Speaker 04:
We do believe he's a subsidiary decision-maker in this case, in which... And what case suggests that somebody in his position is a decision-maker?

[00:08:49] Speaker 00:
So we think that our argument flows from... No, I asked you what case.

[00:08:54] Speaker 00:
Sure.

[00:08:55] Speaker 00:
So we know from cases like Morrissey and Goldberg that even subsidiary decision makers must be impartial even if there is a separate final decision maker here.

[00:09:04] Speaker 04:
What makes him a subsidiary decision maker?

[00:09:07] Speaker 04:
Because under these circumstances... What case involved a witness like this who's treated as a subsidiary decision maker?

[00:09:15] Speaker 00:
I think the principle here comes from the Supreme Court's decision in Toomey because it explained there that... So that Toomey doesn't involve

[00:09:22] Speaker 04:
a situation like this.

[00:09:24] Speaker 00:
No, I agree that the facts- So you don't have a case.

[00:09:27] Speaker 00:
Not factually on point, but I do want to emphasize that Toomey explains that a quasi-judicial role can arise when somebody's opinion effectively cuts off further inquiry into an issue.

[00:09:37] Speaker 00:
And we think that's exactly what Dr. Fromm's opinion did here.

[00:09:41] Speaker 00:
It cut off further inquiry.

[00:09:42] Speaker 00:
It wasn't being weighed against any other evidence given the posture in which it arose.

[00:09:47] Speaker 00:
I also want to point to the pages in the record that you mentioned, Judge Shaw.

[00:09:52] Speaker 00:
Even though Mr. Johnson might have questioned the strength of certain aspects of the record, he certainly was not raising a due process argument there.

[00:10:01] Speaker 00:
And in those pages, there's no indication that the board would have understood the extent of Dr. Prom's involvement.

[00:10:07] Speaker 00:
In particular, those pages don't mention his supervisory role in the aftercare.

[00:10:12] Speaker 00:
And so we don't think that there's any possibility that the 2003 board

[00:10:16] Speaker 00:
was aware that the multiple statements the VA made about Dr. Fromm's non-involvement were in fact false.

[00:10:23] Speaker 00:
And that's the key here.

[00:10:24] Speaker 00:
As soon as these false statements were made in the record by the government, then the due process violation occurred, whether you view Dr. Fromm as a decision-maker or as a mere witness, as the government argues.

[00:10:36] Speaker 02:
I don't understand that last part.

[00:10:38] Speaker 02:
If he was just a witness

[00:10:41] Speaker 02:
Hopefully it doesn't happen often, but witnesses do sometimes come into court and not tell the truth or not disclose their own biases.

[00:10:48] Speaker 02:
That's just part of adjudication and hopefully the other side has contrary evidence or good cross-examination.

[00:10:55] Speaker 02:
What makes it a due process violation on the assumption that he's not a decision maker but just a witness?

[00:11:00] Speaker 00:
Because this isn't a case where a witness simply shows up to court and lies.

[00:11:04] Speaker 00:
This is a case where the government made false statements going to Dr. Fromm's reliability and bias.

[00:11:10] Speaker 00:
And we know from Cushman that the VA's presentation... The government made false statements?

[00:11:15] Speaker 00:
Where did the government make false statements?

[00:11:18] Speaker 00:
So at appendix pages 3822 and 3813, in two different parts of the record before the board, the VA stated that Dr. Fromm was a specialist who was not involved in Mr. Johnson's case.

[00:11:27] Speaker 00:
There's no question that those statements were inaccurate.

[00:11:30] Speaker 00:
So there's no dispute of falsity here, just as there was no dispute of falsity in Cushman with respect to the VA's statements there.

[00:11:38] Speaker 00:
And so we know from Cushman that when the VA presents false evidence, that due process is violated.

[00:11:44] Speaker 00:
And Cushman even made a point to stress that fraudulent intent on the part of the presenter of the false evidence is not required for a due process violation.

[00:11:53] Speaker 02:
If you get your full relief on remand, what's left of the due process claims?

[00:12:00] Speaker 00:
Your Honor, we do think that full relief on remand would address the relief we're seeking here, but we don't think... But what is that relief?

[00:12:08] Speaker 02:
If you get the date for the start of the benefits that you're looking for and which is on the table as a possibility on the remand you already have, right?

[00:12:16] Speaker 00:
That's correct.

[00:12:17] Speaker 02:
Then what's left in that world, what's left of your due process claims?

[00:12:22] Speaker 00:
Your Honor, in that world,

[00:12:25] Speaker 00:
the due process claims could no longer be an issue, but we don't think the court has to look to that hypothetical question of what might happen there until and unless there is a relief on the remanded Q claim.

[00:12:37] Speaker 03:
And again, I have just one question.

[00:12:39] Speaker 03:
What is the, if you can, if you know now, what is the present status of the remand proceedings

[00:12:46] Speaker 00:
To our knowledge, nothing has happened in the remand proceedings since the Veterans Court's remand order.

[00:12:51] Speaker 00:
We're not aware of any orders or any movement at the board level, so we believe nothing has happened.

[00:12:58] Speaker 00:
With that, I see that I'm running into my rebuttal time, so I do just want to quickly flag our second independent due process argument

[00:13:05] Speaker 00:
which is that the board relied on a fabricated medical note written by Dr. Wallace Wright after he punctured Mr. Johnson's colon.

[00:13:13] Speaker 00:
Contrary to the government's argument, the Wallace note is not a mere unexplained inconsistency in the evidence, which we concede would not pose due process issues.

[00:13:21] Speaker 00:
Here, the only inference that the record supports is that the note was fabricated in an effort to shield Dr. Wallace from potential repercussions from his error.

[00:13:30] Speaker 00:
And we believe that the 2018 board's rejection of that fabrication claim was a legal error because it ignored the important circumstantial motive evidence that Mr. Johnson raised.

[00:13:42] Speaker 00:
Once that legal error is corrected, we think that the only reasonable inference is that the Wallace note was, in fact, a fabrication.

[00:13:49] Speaker 00:
And here I'll want to just briefly touch on the circumstantial motive evidence here.

[00:13:54] Speaker 00:
We know that Dr. Wallace would have seen Mr. Johnson jump off the table in pain multiple times during the procedure, a reaction that should not have occurred.

[00:14:03] Speaker 00:
And so Dr. Wallace would have known he likely injured Mr. Johnson in his overworked state, and that would have given him a motive to fabricate this note.

[00:14:12] Speaker 00:
I think it's also important to note that Dr. Wallace's note is the

[00:14:16] Speaker 00:
one outlier among numerous other uniform medical statements that Mr. Johnson had no prior history of diarrhea.

[00:14:23] Speaker 00:
On those facts, we think it's clear that the Wallace note was a fabrication.

[00:14:27] Speaker 00:
If there are no further questions, then I'd like to reserve the rest of my time for rebuttal.

[00:14:42] Speaker 01:
Thank you, Your Honor.

[00:14:44] Speaker 01:
May I please the court?

[00:14:45] Speaker 01:
I guess we'd first like to address the finality issue.

[00:14:49] Speaker 01:
We submitted our response on that issue.

[00:14:52] Speaker 01:
We think that cases like Williams and Joyce's.

[00:14:55] Speaker 03:
Let me ask you, one of the lead arguments that the other side makes, Mr. Johnson makes, on the finality issues, this was waived.

[00:15:06] Speaker 03:
That nothing was said about it when the briefs were filed as our rule contemplates you could have argued.

[00:15:12] Speaker 03:
And then when the appeal was filed, and then when the opening briefs were filed, in your response, you didn't challenge finality.

[00:15:23] Speaker 01:
uh... i mean that that that's correct your honor we use the reason for that other was that you feel uh... i'm not gonna say it's anything other than we missed the issue i think below at the veterans court presentation of the issues was relatively it was not that straightforward but i'm not gonna say it's anything more than that but i also think that uh...

[00:15:44] Speaker 01:
Mr. Johnson's counsel hasn't pointed to any times where this court has found a waiver with respect to this particular issue.

[00:15:51] Speaker 01:
Now whether or not, you know, obviously it's not a jurisdictional issue, in theory there could be such a thing.

[00:15:58] Speaker 01:
I'm not sure

[00:16:01] Speaker 01:
exactly why the court would want to cast aside Williams and Joyce, which seem to be squarely on point, at least at this point.

[00:16:11] Speaker 03:
Well, they're certainly on point in terms of the merits of the finality issue, if we get to the finality issue.

[00:16:19] Speaker 01:
Correct.

[00:16:20] Speaker 01:
Again, the court issued a show cause order.

[00:16:23] Speaker 01:
We gave our response.

[00:16:25] Speaker 01:
Again, we didn't point to the issue initially.

[00:16:28] Speaker 01:
That's a mistake that we can own, but I also think that there's been an instance of this court has taken the issue of finality seriously.

[00:16:38] Speaker 01:
I don't think there's been one example

[00:16:40] Speaker 01:
where it's been determined to be waived, even in situations where this court has issued orders, you know, show cause orders with respect to finality.

[00:16:50] Speaker 02:
How would it undermine the seriousness of finality to hold the government to the arguments it made and the mistake it made?

[00:16:58] Speaker 01:
Well, again, that's in the discretion of the court.

[00:17:01] Speaker 01:
I mean, I think that, you know, we've made our arguments with respect to finality and fitting it within the Williams

[00:17:10] Speaker 01:
in the Joyce framework, we think under Joyce either it's viewed as one claim or multiple claims, then under any of those situations there would not be a final Veterans Court decision.

[00:17:23] Speaker 01:
with respect to the issue of looking at whether there's been an independent violation.

[00:17:29] Speaker 04:
I guess the answer is that the Williams line of cases suggests that the finality rule is not there just to protect the government.

[00:17:40] Speaker 04:
It's to protect the system.

[00:17:41] Speaker 01:
Well, exactly, Your Honor.

[00:17:43] Speaker 01:
It's to protect, for example, this court.

[00:17:47] Speaker 01:
And it's in this court's discretion as to whether or not they want to be

[00:17:51] Speaker 01:
piecemeal and dealing with issues when at the end of the day, you know, I think there's my, my colleague had a lack of focus on the issue of what in particular is the remanded issue here.

[00:18:05] Speaker 01:
So the remanded issue is this records issue and they can get full relief under that issue.

[00:18:12] Speaker 01:
And so the situations where

[00:18:14] Speaker 01:
this court has found that this court would overlook the finality issues would be situations where the remand itself would violate the rights.

[00:18:26] Speaker 01:
But that's not the case here.

[00:18:27] Speaker 01:
There's no argument that the remand issue here, this records issue, would somehow violate the rights of Mr. Johnson.

[00:18:36] Speaker 02:
If the importance of finality is to protect us as well as other interests, but to the extent it's to protect us,

[00:18:44] Speaker 02:
Don't we want to send a message to the government that we would like your help in helping protect us?

[00:18:51] Speaker 02:
And you failed in this instance.

[00:18:53] Speaker 02:
So why should we go ahead and say, well, we're going to not do anything about that?

[00:19:00] Speaker 01:
Well, I mean, again, I guess, you know, we think that, you know, under Williams and Joyce, there's a lack of finality.

[00:19:09] Speaker 01:
It's in the discretion of the court to, you know, determine whether or not that's a basis here.

[00:19:15] Speaker 01:
I mean, we can certainly get into the merits of these issues that, you know, as we set forth in our brief, just don't rise to the level of due process.

[00:19:24] Speaker 02:
What does it do to the incentive that we might want out there for the government?

[00:19:29] Speaker 02:
to help us find cases that maybe don't belong here if we have to identify them ourselves anyway and then ask everyone to write supplemental briefs.

[00:19:42] Speaker 01:
I think if you look at the context of the board's decision where there's four Q claims, you look at the context of what was raised to the Veterans Court where it didn't seem to be that we still had four particular Q claims there, that there was certainly confusion as to what was raised down below.

[00:20:03] Speaker 01:
And I think the Veterans Court itself, in its opinion, had some confusion as to what was actually raised.

[00:20:10] Speaker 01:
I don't think it would be particularly fair in this case to make an example out of this particular case.

[00:20:16] Speaker 01:
I think the government takes its obligations with respect to finality seriously and with respect to this particular issue.

[00:20:23] Speaker 01:
And again, I think part of this is this case leaps off the page that the actual issues presented here

[00:20:32] Speaker 01:
uh... just on the merits do not rise to a level of of due process concerns but again i i'd excuse me for cutting in there but uh... i asked myself a kind of can you tell us anything about the status of the remand proceedings beyond what she said

[00:20:52] Speaker 01:
I don't think I can add much to that other than the fact that my understanding is there's been no mandate issued.

[00:20:59] Speaker 01:
I think it would have been possible for either Mr. Johnson or both parties to go and have a specific mandate issued with respect to the remanded records claim.

[00:21:12] Speaker 01:
But I think probably at this point, I think my understanding would be that the board

[00:21:18] Speaker 01:
you know, there's been an appeal of that veterans courts decision.

[00:21:23] Speaker 01:
And so the board ha you know, is aware of, uh, what's transpired, but I don't think there's been further any additional orders at that point.

[00:21:32] Speaker 04:
It happened commonly when there's a remand that they don't implement the mandate on the remand order until.

[00:21:41] Speaker 01:
Well, I think my understanding of the issue would be.

[00:21:47] Speaker 01:
once once the veterans court issues its decision and if there's if there's an appeal the board is not aware i mean it a number of things could happen right i mean for example the government could crop could cross appeal on any particular issue or something like that and so i don't think until the veterans court

[00:22:11] Speaker 01:
sends you know the mandate so that the board knows exactly what it's doing that that they would be in a position and this is my understanding of what they would be doing now there's obviously separate situations that this court deals with all the time where for example there's a little suggesting is that the mere fact that they've taken an appeal delays proceed i think that's probably as a practical matter how the board views it but i'm not you know i'm

[00:22:40] Speaker 01:
standing up here right now i can't give hundred percent certainty on that uh... there's obviously others situations where for example if the board still has jurisdiction for example if there's a rid of mandamus or something along those lines where uh... you know those are sort of different situations with the board actually still has jurisdiction and be can be pursuing

[00:23:04] Speaker 01:
sort of actions at that point in time.

[00:23:06] Speaker 03:
One question, Mr. Andy, and neither you nor Ms.

[00:23:09] Speaker 03:
Avocado may be able to answer this, but is there any indication in the record that now exists as to whether there is significant overlap or identity between the documents that we have in the record before us and these documents that are the subject of the remand order?

[00:23:30] Speaker 01:
Well, my understanding, and just based on the records, it's really an independent Q claim as sort of with respect to factual overlap.

[00:23:40] Speaker 01:
And here's why.

[00:23:41] Speaker 01:
It's because the argument is that there was a... Well, I'm saying there are different documents involved in the remand.

[00:23:48] Speaker 03:
In other words, these are coming from Buffalo, right?

[00:23:51] Speaker 03:
They are, Your Honor, but I think that... Are the Buffalo documents, if you know, supposedly different from the documents now in the record?

[00:24:01] Speaker 03:
That's just a fact question.

[00:24:03] Speaker 01:
Just so I can explain, Your Honor, the argument is that those documents were destroyed and Mr. Johnson has pointed to statements along those lines.

[00:24:11] Speaker 01:
So the documents don't actually exist anymore.

[00:24:14] Speaker 01:
So there's a factual question

[00:24:15] Speaker 01:
as to I guess what those documents were but the argument as I take it with respect to Q that Mr. Johnson was making is that there would be an adverse inference there and so that those documents essentially that issue on itself could be Q because if those documents had been destroyed and those documents for example dealt with this gap in the medical records

[00:24:42] Speaker 01:
then that in and of itself could be Q, independent of any of these other particular issues that we're dealing with here.

[00:24:51] Speaker 01:
That's just another way for Mr. Johnson to have established Q, based upon that.

[00:24:58] Speaker 01:
As to what those records are, they no longer exist, I think there may be... They don't exist in any... totally non-existent, right?

[00:25:07] Speaker 01:
There's none of them left.

[00:25:09] Speaker 01:
That's my understanding based upon what the Veterans Court, what they were pointing to.

[00:25:16] Speaker 01:
But again, I think there was a separate part of what the remand is getting at is one, is there

[00:25:23] Speaker 01:
Is there evidence or whatnot as to what those documents were?

[00:25:27] Speaker 01:
And two, should an adverse inference be employed there?

[00:25:32] Speaker 01:
And if all of those played out in Mr. Johnson's favor, I think the argument would be, and I think that's why the Veterans Court remanded, that he may be able to establish Q under those circumstances.

[00:25:43] Speaker 02:
Do you have a view on whether in the ongoing remand he can raise the due process issues?

[00:25:52] Speaker 01:
You know, I don't think we've briefed that particular issue.

[00:25:57] Speaker 01:
I'm not sure how those would actually come up here.

[00:26:00] Speaker 01:
But again, sort of similar to, as sort of Joyce pointed out, he would always have the opportunity, for example, if the board were to find that Q was not established, he could, you know,

[00:26:14] Speaker 01:
again challenge the various issues.

[00:26:16] Speaker 02:
What about his fundamental due process argument that the remand itself will be a violation of due process because it will be tainted by this evidence that shouldn't be there?

[00:26:29] Speaker 02:
And does he have to be right on that to, you know, meet prong three of the Williams test or does it just have to be sort of a colorable possibility?

[00:26:40] Speaker 01:
Well, you know, I mean I think

[00:26:42] Speaker 01:
It's his burden to establish that.

[00:26:44] Speaker 01:
I don't see that there's been any argument that's been made linking that issue, that first Q issue with respect to these records to these due process challenges.

[00:27:00] Speaker 02:
So I don't see that... Well, I would have thought the idea would be if he's going to ask for an adverse inference.

[00:27:07] Speaker 02:
and the totality of the rest of the record, he's more likely to prevail on his Q claim, because the records can be more favorable to him if this tainted evidence is excluded.

[00:27:19] Speaker 02:
And I would have thought he had made that argument, but maybe I'm incorrect.

[00:27:22] Speaker 01:
Well, I'm not sure where that argument was made linking it to this particular issue.

[00:27:26] Speaker 04:
Well, if he made such an argument, there was nothing to remand him for making that argument, right?

[00:27:34] Speaker 01:
There would be nothing on remand

[00:27:36] Speaker 01:
uh... as to why he can't make that argument again we're looking at choice in those cases

[00:27:42] Speaker 01:
Really what the problem would be is if on remand the issue we're dealing with somehow disappeared completely.

[00:27:50] Speaker 01:
And there's really no argument that that would be the case.

[00:27:55] Speaker 01:
I mean, we just don't see how that argument would disappear.

[00:28:00] Speaker 01:
The only circumstance in which it would disappear would be if he actually prevailed on his claim

[00:28:07] Speaker 01:
the Q claim with respect to the records and in that situation he gets the earlier effective date.

[00:28:13] Speaker 01:
And all of this stuff falls away because he can't get more relief.

[00:28:16] Speaker 01:
There's not an independent due process compensation that he would be able to get.

[00:28:23] Speaker 01:
So he would get the earlier effective date and that would be it.

[00:28:28] Speaker 01:
And again, I see my time's almost up.

[00:28:30] Speaker 01:
I'm happy to address the two due process violations.

[00:28:34] Speaker 01:
At the end of the day, those are just not genuine constitutional violations.

[00:28:42] Speaker 01:
There's the hallmarks of due process.

[00:28:45] Speaker 01:
It's notice and opportunity to be heard.

[00:28:48] Speaker 01:
With respect to the note,

[00:28:50] Speaker 01:
that was in the record, one, so he had notice of it, he had an opportunity to argue about it, it was presented in the records, but two, there's actually no prejudice here, because if you look closely at the 2003 board decision, the finding there was based on a lack of negligence.

[00:29:08] Speaker 01:
And that finding is straightforward.

[00:29:11] Speaker 01:
It's based upon the medical opinion and it's based upon the fact that we have a perforation of the colon and we have a medical opinion by a witness, not a decision maker, saying that there was a lack of carelessness because perforation of a colon is a commonplace

[00:29:29] Speaker 01:
complication for a colonoscopy.

[00:29:32] Speaker 01:
So that deals with it.

[00:29:33] Speaker 04:
They ultimately didn't prevail on negligence in the surgery operations.

[00:29:37] Speaker 04:
They prevailed on negligence after the operation and delay of treatment.

[00:29:43] Speaker 01:
That's correct.

[00:29:43] Speaker 01:
But that doesn't go to the fact that at the time, when we're talking about a due process violation, it's just the fact that you get notice and opportunity to be heard.

[00:29:53] Speaker 01:
So that's what we're dealing with here.

[00:29:55] Speaker 01:
And Judge Dyke, that

[00:29:58] Speaker 01:
That observation bolsters our argument, because even at that time, once the later board opinion came out based upon new and material evidence, that didn't contradict the finding that perforation is somehow not a common

[00:30:19] Speaker 01:
complications.

[00:30:21] Speaker 01:
It was based upon a different reason, which was this time period, which is sort of a different view with respect to that particular medical opinion.

[00:30:36] Speaker 01:
I think we're out of time.

[00:30:36] Speaker 01:
Thank you, Mr. Yellen.

[00:30:38] Speaker 04:
Thank you.

[00:30:43] Speaker 00:
Just a few points on the financial issue and one point on the merits.

[00:30:47] Speaker 00:
I think the government's responses to this court's questions confirm that there is no reason for the court to overlook the government's waiver here, and thus it need not even reach the Williams question.

[00:30:57] Speaker 00:
But even if it does reach the Williams question, we think that we satisfy that standard.

[00:31:02] Speaker 00:
Again, the Joyce case is not

[00:31:05] Speaker 00:
strictly relevant here because we are arguing for the ability of this court to review the order on a different reasoning based on the remand violating his rights, not the separable and distinct claims.

[00:31:16] Speaker 00:
I also want to point to something Judge Stark mentioned.

[00:31:20] Speaker 00:
We did draw a connection between the remand and the due process violations here.

[00:31:24] Speaker 00:
As we mentioned, without the presence of the tainted evidence in the record will affect the remand proceedings below.

[00:31:32] Speaker 00:
Finally, on my last few minutes, a note on... You're actually out of time.

[00:31:37] Speaker 04:
I'll give you 30 seconds more.

[00:31:39] Speaker 00:
Go ahead.

[00:31:39] Speaker 00:
Thank you, Your Honor.

[00:31:41] Speaker 00:
The notice and opportunity to be heard here is not relevant.

[00:31:45] Speaker 00:
because the due process guarantees not just a certain amount of process, but that that process be fundamentally fair.

[00:31:52] Speaker 00:
And as this court observed in Cushman, if a proceeding is fundamentally unfair because of tainted record evidence, no amount of additional hearings or appeals will cure that due process violation.

[00:32:02] Speaker 00:
The cure is a new proceeding absent that tainted evidence, precisely what we're asking here.

[00:32:08] Speaker 00:
Now that my time is well and truly up,

[00:32:10] Speaker 00:
We'd ask the court to reverse and remand with instructions for a new and fair hearing.

[00:32:15] Speaker 00:
And as reflected in our filing last night, we would also request 14 days for us to file supplemental briefs.

[00:32:21] Speaker 04:
We'll give you the 14 days to presumably to move for someone to intervene.

[00:32:27] Speaker 00:
Thank you, Your Honor.

[00:32:28] Speaker 00:
We appreciate that.

[00:32:29] Speaker 04:
Thank you both, counsel.

[00:32:30] Speaker 04:
The case is submitted.