[00:00:04] Speaker 00:
by Veterans Legal Advocacy Group versus McDonough.

[00:00:10] Speaker 04:
May it please the court.

[00:00:12] Speaker 04:
For more than five years, the VA has repeatedly mailed VetLag's documents to the wrong address.

[00:00:19] Speaker 04:
The VA did this regardless of the many hundreds of times VetLag tried to tell the VA, hey, this is the incorrect address.

[00:00:26] Speaker 04:
Please mail it to our current address.

[00:00:28] Speaker 04:
VetLag had changed the address correctly per VA policies.

[00:00:31] Speaker 00:
Can I?

[00:00:32] Speaker 00:
OK.

[00:00:32] Speaker 00:
We're well aware of what went on here.

[00:00:34] Speaker 00:
I guess one of the things I'm unclear on is that I understood your petition, your initial petition, to deal with a fairly discrete issue, which is your mail was being sent to Alaska and to Indiana, prior locations for your group.

[00:00:53] Speaker 00:
And now you're in Virginia.

[00:00:54] Speaker 00:
And somehow, I appreciate you maybe have been very frustrated because you couldn't find a way to get the VA

[00:01:01] Speaker 00:
to change the addresses for the attorneys.

[00:01:05] Speaker 00:
And they kind of arguably fixed that.

[00:01:10] Speaker 00:
Now, you raise a few things that are still problematic in blue and in gray.

[00:01:17] Speaker 00:
Can you explain to me how those coincide with the gravamen of your initial petition, which dealt with sending it to Alaska and to Indiana?

[00:01:26] Speaker 00:
I think you could define one instance where they continued not to do that.

[00:01:31] Speaker 04:
We have learned of, since we've been at this court, we have learned of a few more documents that have been sent to Alaska and Indiana.

[00:01:42] Speaker 04:
We don't.

[00:01:43] Speaker 00:
But at the time you file your appeal to this court, at some point we've got to cut off the time limit for what we're looking at.

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

[00:01:49] Speaker 00:
So at the time you filed your appeal to this court, was it just one?

[00:01:54] Speaker 00:
Was it a handful?

[00:01:56] Speaker 00:
I'm not leaving you.

[00:01:57] Speaker 00:
I just want to know.

[00:02:00] Speaker 00:
My recollection from the briefing is that it was only one.

[00:02:03] Speaker 00:
And then you had other examples.

[00:02:05] Speaker 00:
And I'd like you to get into those problems.

[00:02:08] Speaker 04:
Your Honor, there's no doubt the issue improved.

[00:02:11] Speaker 04:
We did start, as far as we know, receiving more of our mail at our current correct address.

[00:02:17] Speaker 04:
As far as Indiana and Alaska, our complaint wasn't specifically for those addresses.

[00:02:23] Speaker 00:
that the vr should not be sending mail to any wrong address and that's in theory but i thought the focus was really on what they had done here and they were going to fix it the other thing you do raise and i just want to be clear on that in your appeal here other stuff where you say there have been errors or problems and one of them deals with calling an attorney esquire versus attorney

[00:02:49] Speaker 00:
And then there's another one about the way the address in Virginia is laid out.

[00:02:55] Speaker 00:
Did those problems or missteps result in the mail not getting to where it was supposed to go?

[00:03:02] Speaker 04:
No, Your Honour, we're not complaining about the different iterations of our names, our addresses.

[00:03:08] Speaker 04:
That's not a problem.

[00:03:09] Speaker 04:
All that does is prove that their argument or their position, whatever you want to call it, that they have changed these two systems and magically everything's showing up.

[00:03:19] Speaker 00:
So you're not complaining about that.

[00:03:21] Speaker 00:
You're complaining about the fact that it's not moved because as a practical matter, you've identified one or a handful of correspondence that was sent to the Alaska address or to the wrong address.

[00:03:37] Speaker 04:
I think we had one in the time period between the court's decision and our motion for reconsideration.

[00:03:43] Speaker 04:
But we've had many since.

[00:03:44] Speaker 04:
What does many mean?

[00:03:47] Speaker 04:
20, maybe?

[00:03:48] Speaker 04:
I don't know.

[00:03:49] Speaker 04:
Just me.

[00:03:50] Speaker 00:
My understanding of the record is that at the time when the VA finally buckled down and said, we're going to clear this up, and they did the stuff with the two systems and the two databases, and they also said, give us all your names.

[00:04:04] Speaker 00:
Give us all your information.

[00:04:06] Speaker 00:
and there were 233 names, and that there were some missing, some deleted, some gone.

[00:04:13] Speaker 00:
So there was still a discrepancy.

[00:04:15] Speaker 00:
The VA wasn't quoting we've gotten every single one, because they didn't get the information for you for every single one, right?

[00:04:22] Speaker 00:
Am I understanding the way?

[00:04:23] Speaker 00:
That is correct, Your Honor.

[00:04:24] Speaker 00:
So what is humane?

[00:04:28] Speaker 00:
What is left?

[00:04:29] Speaker 00:
What did you not get?

[00:04:30] Speaker 00:
No system is going to ever be 1,000%.

[00:04:33] Speaker 00:
You've identified problems since then, but I think you characterize those as not being the kind of problems that means that the mail goes to the wrong place.

[00:04:41] Speaker 00:
So why didn't you essentially get pretty much what you were asking for?

[00:04:48] Speaker 04:
Because, Your Honor, first, we don't characterize it as these addresses, these fixes mean that the address is wrong and we're just still going to get whatever we're going to get.

[00:04:56] Speaker 04:
There is definitely mail we're not getting, because they're still using wrong zip codes.

[00:05:00] Speaker 04:
They're using the wrong office numbers.

[00:05:03] Speaker 04:
Sure, if they spell my name right or wrong, it's going to show up in our office.

[00:05:08] Speaker 00:
And are these having anything to do with Alaska or Indiana, or are there other addresses?

[00:05:14] Speaker 04:
I don't know how many things are still being sent to Alaska or Indiana.

[00:05:17] Speaker 04:
We only learn of them when our clients tell us.

[00:05:20] Speaker 04:
I think most of my clients that I represented while I lived in Alaska or while we had the post in Indiana, most of those clients have gone off my docket.

[00:05:31] Speaker 04:
They're no longer with us because their cases have resolved.

[00:05:33] Speaker 00:
So it seems a little unclear what's going on, and this would be probably

[00:05:39] Speaker 00:
in perpetuity.

[00:05:40] Speaker 00:
I mean, next year, two years from now, you might get a misstep, too.

[00:05:46] Speaker 00:
If you've got a group of things that have been misdirected since the board decided, the CABC decided this, is there anything that will preclude you from filing an additional mandamus petition?

[00:05:58] Speaker 00:
If you had a sufficient basis to say, well, look, they fixed some of the problems, but here are these lingering problems, mandamus petition.

[00:06:08] Speaker 04:
First of all, Your Honor, I don't think we need to do that because the fact that there's ongoing problems.

[00:06:11] Speaker 00:
That wasn't my question.

[00:06:12] Speaker 00:
I asked you as honestly.

[00:06:13] Speaker 04:
That way, we'd have to hire another counsel to just handle that, and that would be that counsel's job.

[00:06:18] Speaker 04:
I mean, my paralegal already spends a significant amount of time just telling the VA, wrong address, or, hey, we're missing these documents.

[00:06:25] Speaker 04:
We are sending letters to the VA all the time.

[00:06:27] Speaker 04:
Still, we're missing these documents.

[00:06:28] Speaker 02:
So you got precluded from doing it, but you're saying you don't want to do it because it would be very time consuming?

[00:06:34] Speaker 04:
We're financially precluded, Your Honor.

[00:06:35] Speaker 04:
We are a nonprofit.

[00:06:36] Speaker 04:
We don't have the money to hire an attorney just to bother the VA and file a petition saying, hey, they mailed documents to the wrong address.

[00:06:43] Speaker 04:
We do do that for probably about 20 times.

[00:06:46] Speaker 04:
We've done it over the years before this petition, where we would say, hey, we haven't received this document.

[00:06:52] Speaker 04:
And the VA would often, in the petition, give us the document.

[00:06:57] Speaker 04:
We find, oh, that document was mailed out to the wrong address four years ago.

[00:07:01] Speaker 04:
And then we spend five years litigating whether the appeal of that document is on time.

[00:07:06] Speaker 04:
I've had several clients die during this litigation.

[00:07:09] Speaker 04:
So do we not want to do it?

[00:07:13] Speaker 04:
Of course not.

[00:07:14] Speaker 04:
Canon?

[00:07:15] Speaker 04:
Financially, no.

[00:07:16] Speaker 04:
We could not.

[00:07:18] Speaker 03:
Why is it more costly to file a new mandamus petition than to appeal this and then get us to remand and then

[00:07:27] Speaker 03:
Refile at the Veterans Court all the new subsequent information of events that occurred after it issued its original Veterans Court decision.

[00:07:38] Speaker 04:
Oh, let's just say I'm gonna spend on just this Federal Circuit appeal hundred hours and maybe 150 I know I don't know a lot but

[00:07:47] Speaker 04:
If I file a petition every single time that we learn of the VA filing or sending mail to the wrong address, and just this week we had two more, and we're going to file petitions for those.

[00:07:58] Speaker 04:
And we don't know what we're missing.

[00:07:59] Speaker 00:
Well, when you figure out that it's been sent to the wrong address, did you call someone?

[00:08:04] Speaker 00:
Are they completely unresponsive to help you?

[00:08:07] Speaker 04:
You mean call someone at the VA, Your Honor?

[00:08:09] Speaker 00:
Yeah.

[00:08:10] Speaker 04:
No.

[00:08:10] Speaker 04:
There's no one to call at the VA for that, Your Honor.

[00:08:12] Speaker 00:
Well, I thought there was part of the system is that there's something on their website, and you're supposed to notify them.

[00:08:19] Speaker 00:
So you say, on your end, you've done everything, everything right, 100%.

[00:08:23] Speaker 00:
And it's still not working, and then you can't get it rectified, other than by filing a mandamus petition.

[00:08:32] Speaker 04:
Correct, Your Honor.

[00:08:34] Speaker 04:
That is what we're saying.

[00:08:35] Speaker 04:
We have filed over 380, I looked it up yesterday, over 380, at least in just the past few years, notices to the VA, hey, you've sent us to the wrong address.

[00:08:48] Speaker 04:
Please fix the address in this client's file, or please fix our address, or...

[00:08:53] Speaker 04:
This attorney doesn't work here.

[00:08:55] Speaker 04:
I don't know why you're sending us his money.

[00:08:56] Speaker 04:
It happens in various systems in the VA.

[00:09:01] Speaker 04:
So we get other attorney's checks.

[00:09:03] Speaker 04:
Attorneys get our checks.

[00:09:04] Speaker 00:
So did you put that on to the CAVC?

[00:09:07] Speaker 00:
I mean, as I understand, what went down here is they came in, and they certainly did more than nothing.

[00:09:13] Speaker 00:
They brought people in.

[00:09:14] Speaker 00:
They changed their databases.

[00:09:16] Speaker 00:
They confirmed it.

[00:09:16] Speaker 00:
They put a thing on the website telling lawyers what to do.

[00:09:20] Speaker 00:
They fixed.

[00:09:21] Speaker 00:
I thought the record indicated that of the 234 lawyers you had, they confirmed their addresses with you and fixed all of that.

[00:09:31] Speaker 00:
So.

[00:09:32] Speaker 04:
That doesn't account for the 50 or so clients that have hired us in the last two years, Your Honor.

[00:09:38] Speaker 04:
And that was a snapshot in time.

[00:09:40] Speaker 04:
They went in by hand and fixed them.

[00:09:42] Speaker 04:
But that snapshot in time isn't reality moving forward.

[00:09:45] Speaker 03:
I guess if I was a Veterans Court judge and I had to,

[00:09:50] Speaker 03:
issue a decision on your petition.

[00:09:54] Speaker 03:
What was it?

[00:09:56] Speaker 03:
I mean, at that point in time, after the VA came in with all of its affidavits and all of its explanations of updating its databases, and then providing a means for attorneys to do other things to update the databases, why wasn't it reasonable for the Veterans Court to believe in that snapshot of time?

[00:10:21] Speaker 04:
We have a solution here and now the petition is moved When the VA High-level officials submitted their affidavits those affidavits are read closely

[00:10:35] Speaker 04:
They don't say that they solved anything.

[00:10:36] Speaker 04:
They just said, maybe they're right in these two databases, but I don't really know, because I don't control those databases.

[00:10:42] Speaker 03:
They didn't even list the databases.

[00:10:43] Speaker 03:
Let's just take it for granted, because again, if you're the Veterans Court judge, you see these affidavits come in saying that databases have been updated.

[00:10:53] Speaker 03:
So there's no reason for this correspondence to any of it to end up in Alaska or Indiana, because now we've got the right address in the database for each and all of these different clients.

[00:11:07] Speaker 03:
And then you had an opportunity, a 10-day window, to respond to that.

[00:11:12] Speaker 03:
We didn't respond to that.

[00:11:14] Speaker 03:
And then the Veterans Court, I mean, what are they supposed to think at that point?

[00:11:17] Speaker 03:
They think, look, it looks like there's a viable solution here.

[00:11:22] Speaker 03:
No one's telling us why it's not a viable solution.

[00:11:27] Speaker 03:
So I'm still struggling to think about why, at that moment in time, when the Veterans Court had to issue a decision, why was it unreasonable for it to think that this case had been mooted?

[00:11:38] Speaker 04:
Because, Your Honor, at that time, no one told the Veterans Court that the problem was solved.

[00:11:43] Speaker 04:
The affidavits don't say that the problem was solved.

[00:11:45] Speaker 04:
They don't say that.

[00:11:46] Speaker 03:
They don't say the magic word, problem solved.

[00:11:48] Speaker 03:
But just take it for granted right now for purposes

[00:11:52] Speaker 03:
this question, that those affidavits come off as sounding reasonable in correcting what had been identified as the earlier problem, that the database wasn't getting updated.

[00:12:07] Speaker 03:
Now it's been updated.

[00:12:08] Speaker 03:
So just put that to the side.

[00:12:11] Speaker 03:
And again, I didn't see your side come in in that 10-day window saying,

[00:12:17] Speaker 03:
that these affidavits are flawed because they don't say that they solve the problem.

[00:12:22] Speaker 03:
I'm just trying to think about this from the perspective of the Veterans Court judge.

[00:12:27] Speaker 04:
Everything that was in those affidavits, we had addressed before those affidavits.

[00:12:31] Speaker 04:
We had already told the Veterans Court

[00:12:33] Speaker 04:
Listen, if they come in and say they draw from one or two or three databases, it's not true.

[00:12:38] Speaker 04:
There are like 14 databases at least.

[00:12:40] Speaker 02:
There's also VA employees.

[00:12:42] Speaker 02:
Do you want the VA to take?

[00:12:43] Speaker 02:
What additional steps do you actually want the VA to take that are reasonable under the circumstances?

[00:12:48] Speaker 04:
I think the VA should tell its employees and probably control its employees a little more so that they don't use their own personal address list that they keep on Excel spreadsheets.

[00:12:56] Speaker 04:
I think it should tell its employees, pull the address from the corporate database every single time.

[00:13:03] Speaker 04:
Not when you feel like it not when you have this document from 2014 you can pull that address and write it on an envelope I think that would be a better solution Wouldn't you have said that though?

[00:13:14] Speaker 00:
I mean the CDC goes through what the affidavit said that they've identified it They put the right names in if they corrected all of the addresses getting information from you so did you stand up and say

[00:13:29] Speaker 00:
Well, that's still not fixing the problem, because they are not supervising their employees in a way in which the employees are actually, I'm not quite understanding what you're saying, but that the employees aren't even using the databases.

[00:13:44] Speaker 00:
They're using stuff that's in their drawers to get this.

[00:13:48] Speaker 00:
I mean, did you?

[00:13:49] Speaker 00:
Yes, Your Honor.

[00:13:49] Speaker 04:
We have said that multiple times in our filings throughout the year of litigation.

[00:13:54] Speaker 04:
I mean, there's a lot of motions practice here, a lot of filings from us saying.

[00:13:57] Speaker 00:
But after they come in and they say, here, we fixed it.

[00:14:01] Speaker 00:
I mean, it sounds, when you read what the CABC said, it sounds like they were presented with these affidavits.

[00:14:09] Speaker 00:
This is what we're going to do with the system.

[00:14:11] Speaker 00:
They had gone to you.

[00:14:12] Speaker 00:
They had taken the 200 names you had given them.

[00:14:15] Speaker 00:
They had verified the new addresses and the correct addresses.

[00:14:19] Speaker 00:
And it seemed like they were tackling in a substantial way what you had

[00:14:23] Speaker 00:
really the grabament of your complaint, which is they're sending these not to Arlington and Virginia, but they continue to send them to Alaska.

[00:14:32] Speaker 00:
So why don't you get up and say, well, I don't think that's going to fix the problem.

[00:14:37] Speaker 04:
We had already said, Your Honor, so many times, all I'd be doing is repeating myself.

[00:14:41] Speaker 04:
The Veterans Court didn't say they would rule.

[00:14:43] Speaker 00:
You said that in response to the insufficiency of what they had come forward and said was the solution to the problem?

[00:14:48] Speaker 04:
I thought the affidavits were totally in our favor.

[00:14:51] Speaker 04:
I thought that was a great time to just shut up, let the court make a decision.

[00:14:55] Speaker 00:
You thought they were in your favor?

[00:14:56] Speaker 04:
Those affidavits, we thought they were strongly in our favor, Your Honor.

[00:14:59] Speaker 04:
They say exactly what we've been arguing for the previous year, that there are multiple systems, that they don't control their systems, that they don't have control over their employees.

[00:15:07] Speaker 00:
But the affidavits talked about how they fixed them, how they ensured that there were two different databases and they would synchronize those databases.

[00:15:14] Speaker 00:
They went back into the system.

[00:15:16] Speaker 00:
And working with you got the right addresses, the addresses changed for all of your then current attorneys.

[00:15:23] Speaker 04:
But as the affidavit say, they don't control what happens in those databases.

[00:15:27] Speaker 04:
And they may have fixed them.

[00:15:28] Speaker 04:
But as we had been arguing for a year, those databases aren't the problem.

[00:15:32] Speaker 04:
Our address wasn't incorrect in those databases ever.

[00:15:35] Speaker 04:
Our address is correct in about 10 other databases.

[00:15:38] Speaker 00:
All right.

[00:15:38] Speaker 00:
Why don't we get into your rebuttal time, so I don't hear from the other side.

[00:16:00] Speaker 01:
May it please the court?

[00:16:03] Speaker 01:
The Department of Veterans Affairs is not contending that it didn't have a problem.

[00:16:08] Speaker 01:
It did.

[00:16:09] Speaker 01:
When the initial petition for writ of mandamus was filed, Veterans Legal Advocacy Group cited 114 instances in which they had mail misdelivered.

[00:16:19] Speaker 01:
Subsequent to the correction and the fix that had been implemented, they were able to provide one.

[00:16:25] Speaker 01:
It was provided in connection with their reply.

[00:16:27] Speaker 00:
Did you use the number 200 or 300 today?

[00:16:29] Speaker 01:
piece I heard 20 but we have no evidence in the record I don't know how to respond to that we have one mailing that went to the board right what's that isn't there one example of

[00:16:43] Speaker 03:
mail intended for the appellant went to the Board of Veterans Appeals.

[00:16:49] Speaker 01:
I think they had filed one in connection with their petition for reconsideration.

[00:16:54] Speaker 01:
I was going after the judgment.

[00:16:56] Speaker 01:
But in connection with their petition for reconsideration, I think they were able to find an additional one.

[00:17:02] Speaker 00:
The majority of their petition.

[00:17:04] Speaker 00:
I'm sorry.

[00:17:04] Speaker 00:
Do you understand what he's saying?

[00:17:07] Speaker 00:
The problem is that it's not cured by the databases because you're not controlling your employees.

[00:17:12] Speaker 00:
And so they're not using the database.

[00:17:14] Speaker 00:
They're using other stuff.

[00:17:17] Speaker 00:
I think that's what I understood.

[00:17:19] Speaker 01:
We have a procedure in place.

[00:17:22] Speaker 01:
Before the VA, I think it's worth acknowledging the problem that existed before.

[00:17:29] Speaker 01:
which was we had various databases.

[00:17:33] Speaker 01:
The preferred form was to file a 21-22A in order to update your address.

[00:17:39] Speaker 01:
That would be in the claimant file.

[00:17:41] Speaker 01:
At the end of the day, because you might have a different address in the Office of General Counsel in a file and a different address in the corporate database, an individual who worked for VA sort of had to choose which address they file, which address they would use.

[00:17:57] Speaker 01:
Whereas now we've set forth a system in place which has attorneys updating their addresses

[00:18:04] Speaker 01:
at both locations at the same time, so we shouldn't have inconsistent addresses.

[00:18:08] Speaker 01:
The VA employees are required to draw from if they're at the Veterans Board to draw from the corporate database.

[00:18:21] Speaker 01:
They, in their reply brief, seem to indicate that the Veterans Benefit Management System is a separate database.

[00:18:28] Speaker 01:
It's not.

[00:18:29] Speaker 01:
The Veterans Benefit Management System is controlled.

[00:18:31] Speaker 00:
So did you understand, and maybe I misunderstood what he was saying.

[00:18:33] Speaker 00:
He seemed to be saying that somehow the employees aren't utilizing the databases that have been cleaned up, and they're doing something else.

[00:18:43] Speaker 00:
Do you know what you're saying?

[00:18:45] Speaker 01:
I think given the general lack of problems since we've implemented our fix, but we seem to indicate they're generally not doing that, I don't preclude the possibility that in a 400-person or 400,000-person agency that occasionally

[00:19:00] Speaker 01:
an employee may make an error or may get an address from someplace else.

[00:19:05] Speaker 01:
That wouldn't be the procedure.

[00:19:07] Speaker 01:
Generally, the VA is entitled to a presumption of regularity for these mailings.

[00:19:12] Speaker 01:
But it is possible that an error could occur.

[00:19:15] Speaker 01:
I do think the Alaska mailing is likely an example of how that can happen.

[00:19:23] Speaker 01:
We don't preclude that possibility.

[00:19:24] Speaker 00:
Well, how can it happen?

[00:19:25] Speaker 00:
If you fixed all the databases and somebody is sending a piece of mail today,

[00:19:29] Speaker 00:
and the databases have been cleaned up, and the right address is there, why does it happen?

[00:19:35] Speaker 01:
They're not drawing from the corporate database like they're supposed to.

[00:19:39] Speaker 01:
I don't quite know.

[00:19:40] Speaker 01:
They look at an old file, and that occurred maybe in connection with that client.

[00:19:43] Speaker 02:
Have they all been instructed to do so?

[00:19:45] Speaker 01:
Yes.

[00:19:46] Speaker 01:
Absolutely.

[00:19:47] Speaker 01:
Absolutely.

[00:19:48] Speaker 01:
And they're supposed to be doing this, but they're not.

[00:19:50] Speaker 01:
We've set forth.

[00:19:52] Speaker 00:
Well, is there anything more you could do, or have you already done that?

[00:19:55] Speaker 00:
Telling employees, this is a problem.

[00:19:57] Speaker 00:
This is what you have to do, I assume.

[00:19:59] Speaker 00:
They're instructed through training or otherwise what to do.

[00:20:02] Speaker 01:
I honestly do not know what else we can do at this point.

[00:20:08] Speaker 01:
Again, acknowledging the problem.

[00:20:10] Speaker 01:
And when the VA comes up with better solutions, better ways to do this, it continues to work on those.

[00:20:17] Speaker 01:
That's why we filed our 28-J letter.

[00:20:19] Speaker 01:
Our system's constantly evolving.

[00:20:21] Speaker 03:
What if there was a rampant problem?

[00:20:26] Speaker 03:
scores of employees that refuse to use the database.

[00:20:30] Speaker 03:
They just pick up something that's more convenient, that they happen to see an address on some older piece of paper in the file, and they just use that.

[00:20:40] Speaker 03:
And it turns out to be the wrong address.

[00:20:43] Speaker 03:
And it happens over and over and over and over again.

[00:20:47] Speaker 03:
Shouldn't that be an example of when the Veterans Court should be able to step in

[00:20:52] Speaker 03:
grant mandamus in a situation like that?

[00:20:55] Speaker 01:
Well, if it's not, if it's yes, if it's not moot, if the problem... What?

[00:20:58] Speaker 03:
I can't, I didn't understand.

[00:21:00] Speaker 03:
Did you say yes?

[00:21:02] Speaker 01:
Well, if there is a rampant problem in connection with a writ of mandamus... You heard my hypothetical.

[00:21:08] Speaker 03:
Is the answer yes or no?

[00:21:10] Speaker 01:
Sorry, I said yes.

[00:21:11] Speaker 01:
I thought I said yes.

[00:21:13] Speaker 03:
If the case is not... You swallowed the yes while you started prattling on about something else.

[00:21:17] Speaker 01:
My apologies, Your Honor.

[00:21:19] Speaker 01:
I was trying to say yes, but yes.

[00:21:21] Speaker 01:
I mean, if there is a rampant problem, the case isn't moot.

[00:21:25] Speaker 01:
That is a case where... So why wasn't it moved here?

[00:21:29] Speaker 03:
Because it seems like there were problems before, there were problems after.

[00:21:33] Speaker 03:
I mean, there was just a kind of an unbroken string of problems.

[00:21:38] Speaker 01:
Well, they demonstrated serious problems beforehand.

[00:21:42] Speaker 01:
They did not demonstrate that that problem continued.

[00:21:45] Speaker 01:
In response to our fix, they initially said nothing, then filed a motion for reconsideration.

[00:21:51] Speaker 01:
Many of the errors which they were concerned with were more typographical errors than anything else.

[00:21:55] Speaker 01:
But that is consistent with the declarations.

[00:21:57] Speaker 01:
Because at the time, the declarations provided that you draw from the corporate database and manually type in the address.

[00:22:06] Speaker 02:
They've identified ongoing problems.

[00:22:08] Speaker 02:
So where do you draw the line in terms of what's rampant?

[00:22:12] Speaker 01:
Well, the ongoing problems, though, they sought was the failure to send correspondence to their correct address, not the failure to miss.

[00:22:19] Speaker 01:
I'm not sure it would be, say, for example, they had filed a petition for a writ of mandamus in which they sought to correct, we were not spelling their name right, or we were using, instead of spelling out dry, we were using dr, which is one of the examples that they had in their request for consideration.

[00:22:39] Speaker 01:
I think they'd have a problem getting mandamus on that.

[00:22:41] Speaker 01:
There might not be moot.

[00:22:42] Speaker 01:
if we were still having manual entry, which at the time we wouldn't have had because the fix for adding a drop down menu to the BMS system didn't go into effect until this past November.

[00:22:55] Speaker 01:
So at the time they might have had for that a viable petition for rid of, well, they might have had the ability to bring a petition for rid of mandamus.

[00:23:03] Speaker 01:
I'm not quite sure that the Veterans Court in that instance, given the lack of harm,

[00:23:09] Speaker 01:
you know, would have been able to grant that petition through the mandamus, but they certainly could have broadened their concern about that.

[00:23:15] Speaker 00:
So did you understand that the writ that's before the mandamus petition before us was directed predominantly, if not exclusively, at this Alaska-Indiana problem and this group of attorneys and their

[00:23:31] Speaker 00:
and the two different databases that people could draw on?

[00:23:34] Speaker 01:
Well, I think that was the nature of the problem, yes.

[00:23:36] Speaker 01:
I mean, it was, in many cases, Veterans Legal Advocacy Group had the perfect storm, where they were generally sending letters to the regional office to try to, to various regional offices to correct their addresses, their attorneys.

[00:23:52] Speaker 01:
They had multiple attorneys who had moved around at various locations.

[00:23:57] Speaker 01:
And just the VA system, unfortunately, was not

[00:24:00] Speaker 01:
set up to sort of handle all of that that was going on.

[00:24:03] Speaker 01:
That's why we improved the process though.

[00:24:06] Speaker 00:
And you represented to the veteran support through the affidavits and so forth.

[00:24:10] Speaker 00:
We fixed the problem to the best that we can.

[00:24:13] Speaker 03:
The other side says the affidavits didn't say no such thing.

[00:24:19] Speaker 03:
Can you respond to that?

[00:24:20] Speaker 01:
I would disagree.

[00:24:21] Speaker 01:
I think you do need to read them all together.

[00:24:22] Speaker 01:
I don't see how you get 14 databases out of those affidavits.

[00:24:29] Speaker 01:
I mean, if you look at the VA general counsel's declaration, it spells out clearly what the databases are.

[00:24:36] Speaker 01:
That's 25, 427 of the appendix.

[00:24:41] Speaker 01:
And it lists the corporate database, which OGC doesn't use.

[00:24:47] Speaker 01:
The OGC database, which is used for accreditation purposes, it mentions that the Federal Circuit maintains its system of addresses for cases before it and that they will turn to the docket sheet for the Veterans Court.

[00:25:00] Speaker 01:
But the VA has no control over that.

[00:25:02] Speaker 01:
You can't fix anything.

[00:25:04] Speaker 01:
If they have told this force a different address, we don't have any ability to fix that.

[00:25:08] Speaker 01:
And we didn't understand their petition as directed at fixing any potential problems or raising any problems.

[00:25:16] Speaker 01:
The mailings were brought to the National Court of the Discourse.

[00:25:18] Speaker 03:
The appellant says they didn't need to respond within the 10-day window after you filed those declarations because everything that was in the content of those declarations they had already argued ahead of time, that wouldn't be anything nearly enough of a adequate solution.

[00:25:39] Speaker 03:
Can you respond to that?

[00:25:40] Speaker 01:
I don't think they really had.

[00:25:41] Speaker 01:
I looked at the oral argument in their filings, and I haven't seen anything on that that says you've implemented this fix and it's not adequate.

[00:25:50] Speaker 01:
They did almost preemptively say you should tack an extra year on if the case becomes moot in their initial petition.

[00:25:57] Speaker 01:
They did say, in fairness to them, that even if this is found moot, even if the problem is fixed,

[00:26:04] Speaker 01:
that you should add an extra year before you dismiss that's an issue in order that keeps effectively the case going, even past the point of there being a case of controversy.

[00:26:13] Speaker 01:
But I'm aware of no case law that supports simply adding on an arbitrary period to make a case.

[00:26:19] Speaker 00:
Did the CAVCs criticize, not criticize them, but observe that they did not raise that again at the appropriate time?

[00:26:26] Speaker 00:
Yes, they did.

[00:26:27] Speaker 01:
They did not raise that again, even in response to the VA's file.

[00:26:33] Speaker 00:
Is there anything that would, so nothing would preclude them from filing another mandamus petition other than the cost of doing that?

[00:26:39] Speaker 00:
No, not that I'm aware of, Your Honor.

[00:26:43] Speaker 02:
We're just talking about two databases, or are we talking about more as a practical matter?

[00:26:47] Speaker 01:
It's two databases.

[00:26:48] Speaker 01:
I mean, again, I don't know where 14 databases comes from.

[00:26:54] Speaker 01:
At most, you could probably say there are an additional two databases that this court has, again, and that the Veterans Court might have its own sort of listing of addresses.

[00:27:04] Speaker 01:
But again, those are not something that the VA has any control over.

[00:27:08] Speaker 01:
And I didn't see any incentive.

[00:27:10] Speaker 00:
Did you mention this court?

[00:27:11] Speaker 00:
some corporate database?

[00:27:14] Speaker 01:
So the corporate database is the database that the Veterans Benefit Management System, VVMS, draws from.

[00:27:21] Speaker 01:
So that's effectively the database for VVMS, and it's also its own database.

[00:27:25] Speaker 01:
And that's what's used by the BVA and the regional offices.

[00:27:28] Speaker 01:
The only other separate database is Office of General Counsel for Accreditation purposes has sort of its own database.

[00:27:35] Speaker 01:
And that becomes relevant when an attorney files their requisite

[00:27:40] Speaker 01:
2122A, the regional office may check to see if the attorney is accredited.

[00:27:46] Speaker 01:
And a problem would occur because you might have something on the 2122A and then the OGC database would have something different and the corporate database would have something different.

[00:27:56] Speaker 01:
So we had sort of all of these sort of conflicting sources of information.

[00:28:00] Speaker 01:
The VA has, you know, focused on you do now the mailings from the corporate database or VMS with the exception of those things that relate to accreditation.

[00:28:11] Speaker 01:
which is what the Office of General Counsel keeps for accreditation purposes.

[00:28:18] Speaker 01:
One of the other reasons for this conflict was also because the

[00:28:23] Speaker 01:
The BVA system is claimant-specific.

[00:28:29] Speaker 01:
So that's one of the reasons why when we went through all of their clients, that they had the issues, we wanted to find out who their clients were in order to update them in the corporate database and make sure we had indeed updated their addresses, we needed to look at the clients.

[00:28:44] Speaker 01:
Because the corporate database system is client-specific or file-specific, whereas OGC is attorney-specific.

[00:28:51] Speaker 03:
Does the VA have some kind of electronic docket system where attorneys or claimants can check on the status of a given claim, and they can see all the different entries in a given claimant file?

[00:29:09] Speaker 01:
I am not certain as I stand here today.

[00:29:13] Speaker 01:
We did raise the question of whether they could- That would be handy, right?

[00:29:17] Speaker 03:
Everybody wouldn't be then relegated to being dependent on

[00:29:21] Speaker 03:
snail mail to figuring out what is actually going on with the status of a claim.

[00:29:27] Speaker 01:
I did get an initial answer that they might have access to veterans benefit management system, but I'm not comfortable saying that they do.

[00:29:35] Speaker 01:
And I will say, you know, it seems to me that in veteran legal advocacy groups position, I would suspect they don't because they've told their clients to mail them everything.

[00:29:47] Speaker 03:
Let's assume it doesn't exist.

[00:29:50] Speaker 03:
If there's a medium level problem, and then the VA takes some actions, and maybe on a superficial view, it looks like those actions the VA takes are very reasonable in solving the problem.

[00:30:08] Speaker 03:
But it turns out that medium level problem wasn't really completely solved.

[00:30:13] Speaker 03:
There still persists a lower level of that same problem.

[00:30:18] Speaker 03:
Let's call it a low level problem.

[00:30:20] Speaker 03:
So we go from a medium level problem to a low level problem.

[00:30:25] Speaker 03:
Can it be said that the issue is moot under those circumstances?

[00:30:32] Speaker 01:
Yes.

[00:30:33] Speaker 01:
I'd love to hear the answer.

[00:30:35] Speaker 01:
And the reason I would say is because when you implement a fix, sometimes that fix can result in new problems.

[00:30:41] Speaker 01:
So they would have fixed the original problem, but now a new problem sometimes emerges.

[00:30:46] Speaker 01:
And that would be subject to, again, would be subject to a new petition for the mandamus.

[00:30:51] Speaker 02:
What if it's the same problem, but just fewer instances of that problem?

[00:30:54] Speaker 01:
Well, then I guess the court would have determined that they didn't fix it.

[00:30:58] Speaker 01:
And that would be the opposite answer.

[00:30:59] Speaker 01:
The answer would be no in that case.

[00:31:01] Speaker 01:
They didn't actually fix the problem.

[00:31:05] Speaker 00:
Thank you.

[00:31:05] Speaker 04:
Thank you.

[00:31:17] Speaker 03:
Just real quick, is there an electronic doctor system at the VA where you can just tap in and check out the status of different files?

[00:31:25] Speaker 04:
There is, Your Honor.

[00:31:26] Speaker 04:
And after two years, we were granted access a few weeks ago.

[00:31:30] Speaker 04:
However,

[00:31:31] Speaker 04:
What we've learned is some of my clients aren't on that system.

[00:31:35] Speaker 04:
To check that system, opening documents takes a long time.

[00:31:38] Speaker 04:
So if the documents are titled correctly, it would be great.

[00:31:41] Speaker 04:
But that system is riddled with errors.

[00:31:43] Speaker 04:
You can't trust any titles.

[00:31:45] Speaker 04:
It is helpful though, because now when we have a client call and the client's like, I got this rating decision three months ago and you haven't even called me.

[00:31:53] Speaker 04:
Now I can go in the system, look back, and find that document.

[00:31:57] Speaker 04:
So while it's wasting time, it's not wasting four or five hours, it's wasting maybe 30 minutes.

[00:32:02] Speaker 02:
But it sounds like a very good safety net now, right?

[00:32:05] Speaker 02:
Because I think the concern is having to rely on this meal meal.

[00:32:08] Speaker 02:
If you can now just go look up in the system, you can figure out what's going on.

[00:32:13] Speaker 04:
It's great many times, but it's maybe 50% of the time.

[00:32:18] Speaker 04:
My clients still have to call me and tell me there's a document missing.

[00:32:21] Speaker 04:
If my client doesn't call me, what should I do?

[00:32:23] Speaker 00:
This has come up in other cases that we've had with VA.

[00:32:26] Speaker 00:
How many cases are pending at various levels?

[00:32:29] Speaker 00:
I think we're talking hundreds of thousands of cases pending or complaints pending at any given time.

[00:32:36] Speaker 04:
Yeah, I believe so, Your Honor.

[00:32:37] Speaker 04:
I'm not sure, but there has to be.

[00:32:40] Speaker 04:
But a lot of what this gets to, has the VA done a better job?

[00:32:44] Speaker 04:
They have.

[00:32:44] Speaker 04:
They've done a lot of work to fix this.

[00:32:47] Speaker 04:
And it's true, for them to completely fix this is going to be difficult, but whether a case in controversy exists right now or existed in January 2021 doesn't depend on how hard this is for the VA to do.

[00:32:59] Speaker 04:
That might be a question for sanctions when they violate the order, but it doesn't make a case moot just because it's difficult for the VA to follow 38 USC 5104A.

[00:33:08] Speaker 04:
There's a statute that tells them to do this.

[00:33:11] Speaker 04:
There's six regulations, 38 CFR 14.630 through 636.

[00:33:15] Speaker 04:
I guess that's seven, I'm sorry.

[00:33:18] Speaker 04:
Those tell them you have to send the mail that is important to litigation to the attorneys, to the clients, or the claimant's attorney.

[00:33:27] Speaker 04:
These are laws, regulations.

[00:33:29] Speaker 04:
They're violating.

[00:33:30] Speaker 04:
Under Article III, Article III doesn't say anything like, case or controversy doesn't exist because it's too difficult for the government to follow the rules.

[00:33:38] Speaker 04:
And so the case isn't moot and never was.

[00:33:40] Speaker 00:
Thank you.