[00:00:00] Speaker 01: Our second case this meeting is number 22, 2227, Callan versus McDonough. [00:00:07] Speaker 01: Okay, Mr. Carpenter. [00:00:10] Speaker 02: May it please the court, Kenneth Carpenter, appearing on behalf of Mr. William Callan. [00:00:15] Speaker 02: An issue in this case is whether or not the statute in this case, 38 USC 5104, which requires notice of the decision. [00:00:28] Speaker 00: Before we go there, [00:00:30] Speaker 00: Let's talk about whether we actually have jurisdiction in this case. [00:00:35] Speaker 00: There is a remand order from the Veterans Court, correct? [00:00:40] Speaker 02: There is, Your Honor. [00:00:41] Speaker 02: But that remand order is predicated upon a final decision interpreting the statute and the viability of the regulation and determines specifically that the statute leaves a gap to be filled [00:00:58] Speaker 02: and that that gap was appropriately filled by the regulation. [00:01:02] Speaker 01: We believe that... It's a final judgment problem. [00:01:05] Speaker 01: There's a remand. [00:01:07] Speaker 01: See, you know, there isn't any finality as to the interpretation that they've given because you could win on the remand on the theory of the majority of the Veterans Court that gives a more limited construction to the statute than you give. [00:01:30] Speaker 02: I don't believe that I could win on remand, your honor, because the board was instructed by the Veterans Court to determine whether or not there was an adequate or to give adequate statement of reasons or basis for why the elements that were required by the statute. [00:01:47] Speaker 01: Under the Veterans Court decision, the board could say, well, you didn't receive the notice that was required by the statute. [00:01:57] Speaker 01: And so you could prevail even under their construction of the statute. [00:02:05] Speaker 02: But that would leave intact the precedential opinion that interprets the regulation as meeting the requirements of the statute. [00:02:18] Speaker 02: provisions of the regulation do not meet that. [00:02:21] Speaker 01: Well, we have a finality requirement. [00:02:23] Speaker 01: That's the problem. [00:02:25] Speaker 01: If that's the case, then... We say we only review final determinations. [00:02:29] Speaker 01: This is essentially not final determination since there's a remontment. [00:02:34] Speaker 02: If that's the case, then, Your Honor, we believe that in the alternative, that this Court should determine that it is a non-final decision. [00:02:41] Speaker 02: that we meet the requirements of the Williams criteria on all three conditions that were satisfied. [00:02:48] Speaker 00: Let me ask you, Mr. Carpenter. [00:02:50] Speaker 00: Yes. [00:02:53] Speaker 00: The relief that you're seeking today, does that have any impact? [00:02:59] Speaker 00: Does it relate to the issue that's been rematted? [00:03:02] Speaker 02: Yes, Your Honor. [00:03:03] Speaker 00: It does. [00:03:04] Speaker 00: Yes, because... Then we don't have a final situation on our hands. [00:03:13] Speaker 02: Well, it requires the VA to provide notice in accordance with the regulation. [00:03:20] Speaker 02: If the board below finds that it meets the requirements of the regulation, then the interpretation made by the Veterans Court stands, and an appeal will simply result in a reliance upon the prior [00:03:41] Speaker 02: law of the caves and we'll be right back here addressing the exact same issue. [00:03:46] Speaker 00: So we really do not hear non-final evidence, right? [00:03:51] Speaker 00: Yes. [00:03:53] Speaker 00: There's exceptions, there's an exception to that. [00:03:56] Speaker 00: Are you aware of the elements of that section? [00:04:00] Speaker 00: Let me just start with the first element. [00:04:02] Speaker 00: Explain why that extension applies. [00:04:04] Speaker 00: Otherwise, I think you have a really tough road to hold here. [00:04:09] Speaker 02: OK. [00:04:09] Speaker 02: It requires that we must have a clear and final decision on a legal issue. [00:04:14] Speaker 02: We believe that the Veterans Court issued a clear and final decision on the issue of whether or not the regulation fills a gap. [00:04:23] Speaker 02: We do not believe that there is any gap [00:04:26] Speaker 02: and therefore by allowing notice to be provided by multiple attachments, including the rating decision itself, is contrary to... But that legal issue you're describing has to be separate from the issue that's on remand. [00:04:46] Speaker 02: And the issue on remand, the direction from the Veterans Court was to simply provide an adequate statement of reasons or basis. [00:04:54] Speaker 00: You told me the other day that there is no distinction between them. [00:04:58] Speaker 00: That the relief that you're seeking below will be impacted or could be impacted by any decision we make today. [00:05:08] Speaker 00: Yes, Your Honor, because if you interpret... If that's the case, if there's that type of connection, then we don't have a final determination, which we don't have jurisdiction. [00:05:21] Speaker 02: Well, if that's the panel's determination, then obviously... Well, it's not. [00:05:25] Speaker 00: I mean, that's maybe mine so far. [00:05:28] Speaker 02: I understand that, Your Honor, and I'm simply suggesting that we believe we meet the Williams criteria because all three of the conditions are met and that there is substantial risk that it will not survive a remand. [00:05:45] Speaker 01: If you lose, it will survive the remand. [00:05:48] Speaker 01: If you lose, if they say that you got sufficient notice, you can say that's under the wrong standard, and you can appeal to us and raise the question. [00:05:59] Speaker 01: That's right. [00:05:59] Speaker 01: But if they say that... But that's the meaning of that criteria. [00:06:08] Speaker 02: If the Board on Remand says that the criteria is met by the regulation [00:06:15] Speaker 02: then that does not allow us an appeal of that decision. [00:06:22] Speaker 01: Because you've won. [00:06:24] Speaker 01: You can't come here if you've won. [00:06:26] Speaker 01: There's nothing to matter with that. [00:06:30] Speaker 02: But I still have a presidential opinion that says something that... When we sit here, we decide cases. [00:06:38] Speaker 01: We don't decide language and opinions. [00:06:41] Speaker 01: There's language in the opinion. [00:06:43] Speaker 01: It may affect future cases, but in a future case, somebody can come here and say that's wrong. [00:06:48] Speaker 01: You can come here in another case and say that's wrong. [00:06:51] Speaker 02: And apparently that's what I'll be required to do then. [00:06:56] Speaker 02: If that's the view of the panel, it seems to me that this is an issue that was motivated by an act of Congress that changed the dynamic for how [00:07:08] Speaker 02: information was communicated to veterans. [00:07:11] Speaker 00: You may have a valuable argument, but today is not the day to present that argument, because we don't have finality. [00:07:19] Speaker 00: We can only hear controversies. [00:07:22] Speaker 00: And there's not a controversy now. [00:07:24] Speaker 00: We can't issue a declaratory judgment seeking to overrule the Veterans Court precedent. [00:07:32] Speaker 00: That's what you're asking us to do. [00:07:34] Speaker 00: That's what you want. [00:07:36] Speaker 00: To begin with, we can't do that because we're resolving controversies. [00:07:41] Speaker 00: And the case arises from a controversy, but the controversy is not before us. [00:07:46] Speaker 00: It's been remanded. [00:07:50] Speaker 02: Then I will return. [00:08:00] Speaker 01: May it please the court. [00:08:01] Speaker 01: Unless the court has questions about the government's position on the nonfinality of the judgment, we'd ask this court to dismiss the appeal. [00:08:09] Speaker 01: OK. [00:08:09] Speaker 01: Thank you. [00:08:10] Speaker 01: Thank you, Your Honor. [00:08:11] Speaker 01: All right. [00:08:11] Speaker 01: Thank you both, counsel. [00:08:12] Speaker 01: The case is submitted.