[00:00:00] Speaker 01: Our next case for argument is 22-10, France versus McDonough. [00:00:08] Speaker 01: Mr. Brown, please proceed. [00:00:10] Speaker 02: Thank you, Your Honor. [00:00:11] Speaker 02: May it please the Court? [00:00:13] Speaker 02: My name is Robert Brown, Jr., and I represent veteran Louis R. Francis. [00:00:17] Speaker 02: As you're aware, I've split my time with the Amicus Vietnam Veterans of America. [00:00:24] Speaker 02: And I've also reserved two minutes for rebuttal. [00:00:30] Speaker 02: uh... mister frances has an appeal and the issue before this court is the issue of the of the propriety of switching a judge within the administrative process at the board of veterans appeals. [00:00:46] Speaker 01: Well, it's not just the propriety, right? [00:00:48] Speaker 01: It's what the statute requires. [00:00:51] Speaker 01: How we interpret the statute. [00:00:52] Speaker 01: Is that correct? [00:00:53] Speaker 02: Yes, your honor. [00:00:54] Speaker 02: That was the main thrust of all my briefs in this case because [00:01:00] Speaker 02: There's two statutes at play. [00:01:02] Speaker 02: It's 38 United States Code 7102 and Section 7107. [00:01:07] Speaker 02: And under 7102, the pre-AMA and the post-AMA version are identical. [00:01:15] Speaker 02: And they require the assignment of a judge and, and I'm paraphrasing, that the judge assigned make the decision and write the report. [00:01:25] Speaker 01: Well, you can't really paraphrase, because that's [00:01:27] Speaker 01: That's the current law. [00:01:28] Speaker 01: And if it said what you just said, then you'd prevail and we wouldn't be here. [00:01:31] Speaker 01: And I don't think even the government would be here if that's what the current law said. [00:01:34] Speaker 01: So why don't you actually talk about what it does say and why you think I should interpret it the way that you just paraphrased it. [00:01:45] Speaker 02: A proceeding instituted before the board may be assigned to an individual member of the board or to a panel of not less than three members of the board. [00:01:53] Speaker 02: A member or panel assigned a proceeding shall make a determination thereon, including any motion filed in connection therewith. [00:02:01] Speaker 02: The member or panel, as the case may be, shall make a report under section 7104D of this title on any such determination, which report shall constitute the final disposition of the proceeding by the member or panel. [00:02:18] Speaker 02: So that's 7102A. [00:02:20] Speaker 00: I'll make a determination thereon. [00:02:24] Speaker 00: What does thereon refer to? [00:02:27] Speaker 02: To the decision made by the member or board. [00:02:31] Speaker 00: That seems to make a determination thereon, correct? [00:02:34] Speaker 02: Yes, Your Honor. [00:02:35] Speaker 00: That just means the case, right? [00:02:37] Speaker 02: Yes, Your Honor. [00:02:39] Speaker 00: OK. [00:02:39] Speaker 00: So that doesn't deal with the question of whether there's been a hearing in the first place. [00:02:45] Speaker 02: A hearing is not required. [00:02:47] Speaker 00: I mean, so there's not in 7102. [00:02:49] Speaker 00: It doesn't say anything about whether a hearing has happened or not happened. [00:02:54] Speaker 02: Yes, Your Honor. [00:02:55] Speaker 02: In this case, the veteran had a hearing. [00:02:57] Speaker 02: I realize that. [00:03:01] Speaker 01: I think our problem is 7102A, which you just read us, is silent about whether there should be a hearing, or if there is a hearing, whether the person who decides the case had to have been present at that hearing. [00:03:14] Speaker 01: That provision seems to be silent on that point. [00:03:17] Speaker 01: But there used to be a provision, 7107C, that expressly addressed this issue. [00:03:22] Speaker 01: and expressly said, didn't it, that the person who conducted the hearing, the decision maker has to be the person who conducted the hearing. [00:03:31] Speaker 01: And so that was pre-AMA. [00:03:34] Speaker 01: So there was a statutory section, a separate one, that expressly put the rule that you want into the law. [00:03:42] Speaker 02: and for whatever reason congress repealed that so why are we not to accept congress' choice to repeal that in the a m a as no longer requiring the same judge requirement your honor the language of section seventy one oh seven c changed considerably with the enactment of the a m a but the new version never says that the board can switch a judge on a veteran after hearing rather it provides alternative venues [00:04:12] Speaker 02: and methods for conducting hearings. [00:04:14] Speaker 02: More importantly, the new language does not contradict section 7102, which still requires that the member or panel assigned to the proceedings shall make a determination thereon. [00:04:26] Speaker 00: But it seemed to me that the real problem is in the statutory history of the rule that if you heard it, you have to decide it. [00:04:37] Speaker 00: which the government points out in its brief, and I didn't see any response in your reply brief, too wet. [00:04:43] Speaker 00: The provision that you would like, which was, is that if there has been a hearing and you had the hearing, you have to decide it, correct? [00:04:53] Speaker 00: That was originally in 7102 before 1993. [00:04:55] Speaker 00: Yes, Your Honor. [00:04:56] Speaker 00: It was in there. [00:04:59] Speaker 00: And then in 1993, it was split. [00:05:02] Speaker 00: It was taken out and put in seven. [00:05:05] Speaker 00: 38 EOC 7107. [00:05:06] Speaker 00: Yes, Your Honor. [00:05:08] Speaker 00: Clearly, right? [00:05:09] Speaker 00: Yes, Your Honor. [00:05:10] Speaker 00: So it's in 7107. [00:05:11] Speaker 00: It was taken out of 7102. [00:05:16] Speaker 00: So once it's taken out of 102, there's no longer 7102, no longer deals with that topic. [00:05:24] Speaker 00: And when it goes into 7107 in 1993-94, it stays there. [00:05:33] Speaker 00: for a while, and then in AMA, it's taken out. [00:05:36] Speaker 02: Yes, Your Honor. [00:05:37] Speaker 02: That's all true. [00:05:38] Speaker 00: And so the government is saying, as a matter of the history of the legislation of the statute, you can't make an argument that there's anything left in 7102 that deals with this rule. [00:05:53] Speaker 00: I didn't see any response in your reply brief to that argument. [00:05:58] Speaker 02: Your Honor, my point has always been that, [00:06:03] Speaker 02: there's an assignment of one, or a panel of not less than three, and that the one assigned should be the one to, and as Chief Judge Moore pointed out, that if I had it my way from my reading of it, then nobody would be here. [00:06:19] Speaker 02: But my reading of it is that 7102 didn't change. [00:06:23] Speaker 00: And so if... My point is that 7102 clearly at one point took care of your problem. [00:06:29] Speaker 00: It had two parts. [00:06:31] Speaker 00: the part that remains to today, slightly different language, right? [00:06:34] Speaker 00: The part that remains to today. [00:06:36] Speaker 00: So your argument is the original 7102 that contained both was redundant, because it provided for the hearing issue on the language about assigning to the panel and making a determination thereon, and it also provided an explicit language. [00:06:50] Speaker 00: Doesn't make any sense. [00:06:52] Speaker 00: See what I'm saying? [00:06:54] Speaker 02: I understand, Your Honor. [00:06:55] Speaker 02: But I still look at the fact of the assignment of the judge, of the judge assigned having that responsibility. [00:07:02] Speaker 02: And I think that if we looked at the dissent that was published at the Veterans Court, I think that the dissent pointed to that as well. [00:07:11] Speaker 02: And so I looked to that as well because the dissent pointed that out. [00:07:15] Speaker 02: And I think he said it better than I could. [00:07:20] Speaker 02: And that's why I actually said in my brief, I'd like to encompass everything he said, but here's a big piece of it. [00:07:27] Speaker 02: And I tried to put that into my brief because he said it so well. [00:07:31] Speaker 00: Well, if you don't succeed on your 7102 statutory interpretation argument here, your fall argument is that the court abused his discretion by not considering the Fair Process Doctrine? [00:07:47] Speaker 02: I actually said that they had no discretion. [00:07:50] Speaker 00: But if the court does... Well, why would they have had no discretion to reach an issue that you didn't raise? [00:07:56] Speaker 02: Well, I pointed to the Cayman case from the Supreme Court. [00:08:01] Speaker 02: There's a footnote, footnote five of the Cayman case. [00:08:05] Speaker 02: Let me flip to that. [00:08:12] Speaker 02: So it's Cayman versus Kemper Financial Services. [00:08:16] Speaker 02: And at first, [00:08:17] Speaker 02: Kamen says in the meat of the case at 95, it says that when an issue is probably before the court, the court is not limited to the particular legal theories advanced by the parties, but rather remains an independent power to identify and apply the proper construction of the governing law. [00:08:37] Speaker 02: But if we switch to note five on page 100, nonetheless, [00:08:43] Speaker 02: If a court undertakes to sanction a litigant by deciding an effectively raised claim according to a truncated body of law, the court should refrain from issuing an opinion that could reasonably be understood by lower courts and non-parties to establish binding circuit precedent on the issue decided. [00:09:01] Speaker 02: And right now, I think that people in the veterans area practice believe that the Francis decision is precedent. [00:09:09] Speaker 02: And so the fact that it produced precedent means they should not have exercised discretion to not hear that argument. [00:09:19] Speaker 01: OK. [00:09:20] Speaker 01: You've used all your time, all your rebuttal time, and you're a minute beyond that. [00:09:25] Speaker 01: We're going to go ahead and hear from Mr. Lipman, who is on this exact point, I think. [00:09:31] Speaker 01: And then I'll restore your two minutes of rebuttal time. [00:09:35] Speaker 04: Thank you, Your Honor. [00:09:37] Speaker 04: Thank you, Your Honors. [00:09:41] Speaker 04: It's pretty clear that not every omission represents a purposeful or meant to exclude what was not put in or what was omitted. [00:09:54] Speaker 04: And let me just give you an idea that the folly of just blindly [00:10:00] Speaker 04: finding purposeful omissions without looking at context, without looking at legislative history, without looking at prominent textual clues throughout the statute. [00:10:12] Speaker 04: Now let's look at pre-AMA 7107C. [00:10:18] Speaker 04: Now there are two sentences that make up that subdivision. [00:10:24] Speaker 04: And I'll read the first sentence. [00:10:25] Speaker 04: A hearing docket shall be maintained and formal recorded hearings shall be held by such members or members of the board. [00:10:35] Speaker 04: You will not find that clause, formal recorded hearings, anywhere in AMA 7107. [00:10:45] Speaker 04: Now, are we to infer that that means that Congress wanted to exclude formal recorded hearings? [00:10:55] Speaker 04: to ask the question is to answer. [00:10:56] Speaker 04: So where I believe the Veterans Court went far, far, far off the reservation is not taking a more steady incentive approach to various factors. [00:11:11] Speaker 04: If we look at the legislative history, it's pretty clear what the grand overarching purpose was of the AMA. [00:11:19] Speaker 04: And that was to reduce inefficiencies in VA adjudication. [00:11:25] Speaker 04: wasn't meant to compromise or eliminate core procedural rights in favor of veterans. [00:11:34] Speaker 04: And let me tell you, the legislature is really illusory because it's clear that the veterans service organizations had a lot of input in the drafting of the AMA. [00:11:49] Speaker 04: And they even pushed back on some of the VA's proposal [00:11:54] Speaker 04: What do you think the VSOs would have done if the secretary had been open and conspicuous in trying to get a provision that cut away on a core procedural right for hearings? [00:12:09] Speaker 04: I mean, you would have had a riot on your hands at that hearing. [00:12:14] Speaker 00: So could I ask one question? [00:12:16] Speaker 00: This is Judge Clevenger. [00:12:17] Speaker 00: What would happen if eliminating [00:12:21] Speaker 00: the right to a decision from the party who actually held your hearing increases the efficiency of the department. [00:12:32] Speaker 04: Yeah. [00:12:32] Speaker 04: Well, it is dubious. [00:12:33] Speaker 00: You made the point that the purpose of the legislation was to increase the efficiency of the department. [00:12:42] Speaker 00: It would seem to me that the kind of problem that we've seen in the past, like in Aronson, [00:12:50] Speaker 00: created a lot of inefficiency by complying with the ruling in Aronson. [00:12:54] Speaker 00: It wouldn't have existed. [00:12:57] Speaker 00: It seemed to me that there is a possibility, if you're keen at all, to say, well, Congress can do what it wants to do to increase the efficiency, that may well be what they planned here. [00:13:09] Speaker 04: OK. [00:13:10] Speaker 04: So we know that it was a balance. [00:13:13] Speaker 04: What is clear from the legislative history [00:13:18] Speaker 04: is that they wanted to get rid of travel board hearings. [00:13:23] Speaker 04: Before the pre-MA, the judges had to go to the local regional offices and give live in-person hearings. [00:13:33] Speaker 04: The cost benefit analysis there was that you really don't need a live hearing to make proper credibility determinations. [00:13:47] Speaker 04: The idea that Congress could do anything, and they could have. [00:13:54] Speaker 04: There's no doubt that they have the power, but that's not what they wanted. [00:13:58] Speaker 04: Now, if I would imagine to effectuate such a radical departure in adjudicator proceedings, and I'm not just talking about the VA. [00:14:08] Speaker 04: I know of no agency that does a switcheroo that has someone doing the hearing, [00:14:13] Speaker 04: and then another bureaucrat comes in and writes a decision. [00:14:17] Speaker 04: It makes no sense. [00:14:18] Speaker 04: So one could think that if Congress really wanted to effectuate such a radical thing, they would have made it very direct and conspicuous. [00:14:29] Speaker 04: Now, there's a lot of ways they could have done that. [00:14:31] Speaker 04: I mean, if you look at 73 AMA 710C, it says shall. [00:14:38] Speaker 04: It requires that the [00:14:42] Speaker 04: Such member or members designated by the chairman to touch on that. [00:14:45] Speaker 01: Hey, counsel, why don't you move on to your fair process argument? [00:14:49] Speaker 01: How do you want me to understand the fair process argument? [00:14:54] Speaker 04: Sure. [00:14:56] Speaker 04: And the fair process argument is that the core procedures of fairness are implied. [00:15:05] Speaker 01: Well, due process takes care of that, right? [00:15:08] Speaker 01: Isn't the whole purpose of the due process clause to protect core procedural fairness? [00:15:13] Speaker 04: Yeah, but fair process, and the court has made it goes further, gives added protection. [00:15:17] Speaker 01: What court has said it goes further? [00:15:20] Speaker 04: The Veterans Court. [00:15:22] Speaker 04: OK. [00:15:23] Speaker 04: That's only in part. [00:15:24] Speaker 04: So it's not just duplicative of due process because... Are you focusing on Aronson? [00:15:30] Speaker 01: What is the case that you're saying the Veterans Court says it goes further than due process? [00:15:43] Speaker 04: I guess what I meant to say is that it has a separate entity than due process. [00:15:52] Speaker 04: They said that. [00:15:54] Speaker 04: It derives from the inherently proclamant structure of the BA system. [00:16:02] Speaker 04: Arneson said that. [00:16:04] Speaker 04: Or Bryant said that. [00:16:06] Speaker 04: And it's in the amnesia. [00:16:09] Speaker 04: So it makes no sense to say that it doesn't have independent force and effect if it merely duplicates the due process. [00:16:18] Speaker 00: Well, the so-called Fair Process Doctrine, which the CAVC applies, came out of Thurber against Brown. [00:16:26] Speaker 00: It's referenced in Aronson. [00:16:28] Speaker 00: It's in recently in Smith against Wilkie, 32 vet app, 332. [00:16:34] Speaker 00: And the way that the court has expressed that is to say it's in addition to or somehow beyond strict constitutional due process. [00:16:43] Speaker 00: I mean, that's if you want to talk about the thing that the doctrine that this particular CABC panel said it was not going to consider after having asked about the topic. [00:16:59] Speaker 00: I mean, the chief judge is asking, well, where does a due process doctrine come from that has a lower standard of proof than the due process clause itself? [00:17:11] Speaker 00: And I'm just citing you where I looked it up, where CABC thinks it comes from. [00:17:19] Speaker 00: But the question here, isn't your argument here that the court should have whatever the fair process doctrine is [00:17:27] Speaker 00: This particular panel, in this particular case, abused this discretion by refusing to consider it, having once asked the party to please talk about it. [00:17:38] Speaker 04: Exactly, Your Honor. [00:17:40] Speaker 00: So what's the abuse of discretion? [00:17:44] Speaker 00: Well, I think you just- Isn't abuse of discretion a violation of law? [00:17:49] Speaker 00: Don't you need to find a violation of law to abuse of discretion? [00:17:56] Speaker 04: Well, not necessarily. [00:17:57] Speaker 04: I mean, cases have said that even though the statute may not define the parameters, I mean, there's plenty of case law that talks about abuse of discretion and what to consider when there had been an argument that wasn't raised in the first instance. [00:18:23] Speaker 04: talk about a couple things. [00:18:24] Speaker 04: One is the primary argument. [00:18:26] Speaker 01: I'm going to give you about 30 seconds, because you're a minute and a half over your time. [00:18:30] Speaker 01: The other guy went way over his time. [00:18:32] Speaker 01: And I've got to make it even for the government. [00:18:34] Speaker 01: It's not fair to have your argument collectively go over by so much. [00:18:38] Speaker 01: So no, you can't have a couple minutes. [00:18:40] Speaker 01: And no, you can't make a couple new points. [00:18:41] Speaker 01: But if you've got one final thought you'd like to convey to us, you can do that. [00:18:46] Speaker 04: I was wondering, is it possible that I could submit a letter brief [00:18:48] Speaker 01: No. [00:18:49] Speaker 01: No, that's not possible. [00:18:51] Speaker 01: You already submitted a brief, and you've had argument. [00:18:54] Speaker 01: If you've got one final thought, though, we're open to hearing it. [00:18:59] Speaker 04: Yeah. [00:18:59] Speaker 04: I guess my thought is that what the court did as far as the waiver makes no sense, that they raised the issue, had counsel prepare for it, and asked numerous questions, and then decided to take the easy route and just [00:19:18] Speaker 04: say, and decide just to waive it. [00:19:22] Speaker 04: Now, that might have been acceptable if we're talking about an unpublished case, so it's just dealing with the parties. [00:19:29] Speaker 04: But to saddle thousands, thousands of claimants with a published decision based upon a dubious assertion of waver, to me it's just, if that isn't abusive discretion, I really don't know what is. [00:19:49] Speaker 01: Okay. [00:19:49] Speaker 01: Thank you, Mr. Lippman. [00:19:51] Speaker 01: We're going to hear from the government now. [00:20:11] Speaker 05: Thank you. [00:20:12] Speaker 05: Good morning. [00:20:13] Speaker 05: Good afternoon at this point. [00:20:15] Speaker 05: May it please the court? [00:20:17] Speaker 05: Text, structure, and statutory history all demonstrate that Title 38 no longer requires that the same board member both conduct the board hearing and issue the board decision in a particular case. [00:20:30] Speaker 05: That requirement used to exist in 38 U.S.C. [00:20:33] Speaker 05: Section 7107C. [00:20:34] Speaker 05: But in 2017, as part of the AMA, Congress deleted that requirement from the statutory text. [00:20:40] Speaker 05: Just as the veterans court did below, this court has to give full effect to Congress's legislative choice in deleting that requirement. [00:20:49] Speaker 05: And no amount of legislative history can overcome what Congress plainly did. [00:20:54] Speaker 05: There is some discussion by my friend on the other side about the legislative history. [00:21:00] Speaker 05: I think the legislative history of the AMA. [00:21:05] Speaker 05: is broader than simply trying to minimize board members traveling to different regional offices. [00:21:13] Speaker 05: The underlying reason behind enacting the AMA was to make the process, the process of board appeals, more efficient, to expedite it because there was a large backlog in board appeals. [00:21:26] Speaker 05: And removing the same board member requirement is entirely consistent with that legislative history, with that purpose behind the AMA. [00:21:36] Speaker 00: Right. [00:21:36] Speaker 00: And at the same time, it recognizes the removal of a very significant beneficial right for the veteran. [00:21:44] Speaker 00: I mean, when you're putting these two things in play, the AMA also created a whole lot of new structures, different layers of appeals, switching back and forth on dockets, creating a lot of additional potential confusion and inefficiency. [00:22:01] Speaker 00: So I think the short is that the legislative history doesn't tell us anything. [00:22:06] Speaker 00: about why this provision was dropped out. [00:22:08] Speaker 05: That's right. [00:22:08] Speaker 05: The legislative history says nothing about it, which is why we said in our briefs. [00:22:12] Speaker 00: And we have your argument that the history of the statute shows it was once in 7102. [00:22:18] Speaker 00: It was taken out. [00:22:20] Speaker 00: It can't mean it was put over here, and then it was taken out. [00:22:24] Speaker 00: And if they're really right, they're arguing original 7102 was duplicative because they had two sources in the statute, original 7102. [00:22:32] Speaker 00: OK? [00:22:33] Speaker 00: So just let me ask you about the elephant in the room. [00:22:36] Speaker 00: Are you going to talk about the elephant? [00:22:39] Speaker 05: What is the elephant in the room, Your Honor? [00:22:41] Speaker 00: Do you know what the elephant is? [00:22:42] Speaker 00: OK. [00:22:43] Speaker 00: Look at regulation 38 CFR 20604. [00:22:46] Speaker 00: Yes, Your Honor. [00:22:57] Speaker 00: I'm with you. [00:22:58] Speaker 00: 604 is recognized in the opinion by the CAVC [00:23:03] Speaker 00: It says that Section 102, 7102, gives a legacy veteran the right to have a decision by the person who had the hearing, correct? [00:23:18] Speaker 00: Yes. [00:23:19] Speaker 00: And it cites 7102 as the authority today. [00:23:23] Speaker 00: Yes. [00:23:24] Speaker 00: How can 7102 give a legacy veteran a right and at the same time deny it [00:23:31] Speaker 00: to an AMA or a RIMP veteran? [00:23:35] Speaker 05: Certainly. [00:23:36] Speaker 00: Isn't it arbitrary and capricious for the agency to say 7102 gives me an authority to give this decision hearing right to a legacy veteran, but on the same type of facts, the same kind of case, will deny it to a RIMP or an AMA veteran? [00:23:54] Speaker 05: So the way the VA understood the AMA amendment. [00:23:59] Speaker 05: You see my point? [00:24:01] Speaker 05: I do. [00:24:01] Speaker 05: I certainly do. [00:24:02] Speaker 00: How can the statute provide authority for one class of veterans and not provide it for another? [00:24:08] Speaker 05: So the way the VA understood the AMA amendment is in terms of changing the system for non-legacy appeals or legacy appeals that opt into the ramp system, like Mr. Francis. [00:24:20] Speaker 00: It only changed the law for the ramp people. [00:24:22] Speaker 00: It didn't change it for legacy. [00:24:23] Speaker 05: Exactly. [00:24:24] Speaker 05: But did not change the law for legacy people. [00:24:26] Speaker 05: So even today, for legacy appeals, they still continue to enjoy that same board member requirement as before. [00:24:34] Speaker 00: Is it an equal protection issue? [00:24:37] Speaker 05: Well, Your Honor, if there is, it was not raised in this case. [00:24:40] Speaker 00: But you see, do you see my point? [00:24:43] Speaker 00: That if you go to the veteran's office today and you line up a legacy appellant, which Mr. Francis was until he opted in to rank. [00:24:53] Speaker 00: That's right. [00:24:54] Speaker 00: And you have a legacy appellant that's standing there. [00:24:56] Speaker 00: He has a situation where he got a decision from someone who hadn't conducted his hearing. [00:25:02] Speaker 00: The legacy person complains that he gets another hearing. [00:25:05] Speaker 00: That decision is no good. [00:25:08] Speaker 00: But you take another veteran, same type of fat, and you say to him, same thing happened. [00:25:14] Speaker 00: You say, I'm sorry, you don't get the benefit. [00:25:17] Speaker 00: The Veterans Administration is using this law, 7102, to give the benefit to a legacy thing. [00:25:26] Speaker 00: And they're using 7102 to deny the benefit to a ramp thing. [00:25:31] Speaker 00: How can that be? [00:25:33] Speaker 00: How is that not the ultimate definition of arbitrary and capricious behavior? [00:25:38] Speaker 05: And again, Your Honor, I know I keep bringing it up, but a type of arbitrary and capricious challenge or a weakly perception is possible. [00:25:46] Speaker 00: But Congress intended that. [00:25:47] Speaker 05: Well, it's not that Congress intended it. [00:25:49] Speaker 05: It's that the claimant in this particular case never raised that kind of argument, not before the Veterans Court, not before this Court. [00:25:55] Speaker 00: I know you're making that argument. [00:25:56] Speaker 00: And I agree. [00:25:57] Speaker 00: I'm just trying to point out, for the benefit of other veterans who might choose the challenges, who maybe decide they don't want to try to clearly present fair process and get a hearing that way. [00:26:08] Speaker 00: The agency right now is arbitrarily and commercially denying one class of veterans a benefit that they're giving to another. [00:26:16] Speaker 00: And I don't see how the government can defend that on any grounds whatsoever. [00:26:20] Speaker 00: Except on the grounds that Congress intended to create a violation of the Equal Protection Clause. [00:26:28] Speaker 05: Which I don't think you really said a minute ago. [00:26:32] Speaker 00: I don't think you want to say that. [00:26:34] Speaker 05: No. [00:26:34] Speaker 05: I don't think that's what we're saying at all. [00:26:36] Speaker 05: But the point at the end of the day is that Congress did choose to make this legislative choice. [00:26:43] Speaker 05: Congress weighed the pros and cons of removing Section 7107C, at least for non-legacy appeals or legacy appeals that opt into ramp, and decided that the efficiencies that come with the AMA [00:26:56] Speaker 05: including a more expedited process through the board appeals process. [00:27:01] Speaker 00: We're giving you under AMA, we're giving you a bunch of things you didn't have before, which is to switch from one docket to another, all of the layering of the clink. [00:27:11] Speaker 00: We're giving you that, but because we're giving you so much, we're taking something away. [00:27:15] Speaker 05: Right, and at the end of the day, that's a legislative choice. [00:27:18] Speaker 05: That's something that Congress selected to do. [00:27:20] Speaker 05: If the veterans' organizations, as Mr. Lippman pointed out, if they are opposed to that, they can go to Congress. [00:27:28] Speaker 05: And they can ask for a legislative fix. [00:27:30] Speaker 05: Now, we think that this kind of legislative fix would undermine what the AMA did, which is create these efficiencies in the board appeals process. [00:27:39] Speaker 05: So it's going to come with some cost. [00:27:42] Speaker 05: the remedy that they can see. [00:27:44] Speaker 00: It's the same process that a legacy claimant is in today. [00:27:48] Speaker 00: There's only one process left, right? [00:27:51] Speaker 05: There's one process for legacy claims and one process, the post AMA process for non-legacy claims or legacy claims that opt into RAM. [00:28:03] Speaker 05: So there's two different ways to proceed in an appeal. [00:28:06] Speaker 05: There's one system for legacy claims and one system for non-legacy. [00:28:11] Speaker 05: Mr. Francis happens to be in the non-legacy system because he opted into it. [00:28:15] Speaker 05: And within that non-legacy system, there is simply no same board member requirement because it was deleted from the statutory text by Congress. [00:28:24] Speaker 01: Can you address the fair process argument, please? [00:28:27] Speaker 05: Yes, certainly. [00:28:27] Speaker 05: So there's really two arguments that are at issue here. [00:28:32] Speaker 05: The first one is a statutory argument. [00:28:34] Speaker 05: that we explained to the court why they have to lose on that substantive argument. [00:28:40] Speaker 01: You've got to put your pen down too. [00:28:41] Speaker 05: Oh, I'm sorry. [00:28:42] Speaker 01: I apologize. [00:28:43] Speaker 05: The second argument is a fair process argument. [00:28:46] Speaker 05: But the substance of that fair process argument is not before the court because it was not raised by the claimant at the Veterans Court. [00:28:52] Speaker 01: So part of my problem is help me understand what the fair process argument even is, like what it is in the law. [00:29:01] Speaker 01: I'm finding it a little difficult [00:29:03] Speaker 01: to really pin it down. [00:29:05] Speaker 01: And the reason that this actually matters to me is if it's part of the legal inquiry of statutory interpretation, you can't waive the law part. [00:29:14] Speaker 01: The fact that they didn't raise it isn't right. [00:29:17] Speaker 01: You can't tell me I can't look at 7107B because they didn't cite it to me to help inform my interpretation of 7107A. [00:29:24] Speaker 01: So if it's part of what amounts to the statutory interpretation, the legal part, [00:29:31] Speaker 01: then they really can't actually waive that. [00:29:34] Speaker 01: So that's why I'm trying to, as a starting point, just wrap my head around what in the world this fair process argument even is. [00:29:41] Speaker 01: I've never heard it before. [00:29:43] Speaker 01: You know, I certainly understand the concepts of due process. [00:29:46] Speaker 01: We have no cases that address this. [00:29:48] Speaker 01: And so what is your, I mean, you represent the government. [00:29:51] Speaker 01: So what is your position on how I should understand what this fair process argument is meant to do? [00:30:00] Speaker 05: So the fair process doctrine is a doctrine developed really by the Veterans Court. [00:30:05] Speaker 05: This court has not addressed it. [00:30:06] Speaker 05: The Supreme Court has not addressed it. [00:30:08] Speaker 05: Does the government agree with it? [00:30:11] Speaker 05: We don't necessarily, Your Honor. [00:30:12] Speaker 05: It's not something that we've addressed. [00:30:15] Speaker 05: Well, it's not something that we've had an opportunity to substantively address before this court. [00:30:20] Speaker 05: But to your point, Chief Judge Moore, it is a substantive [00:30:26] Speaker 05: argument is a substantive doctrine that provides additional substantive rights according to the Veterans Court. [00:30:32] Speaker 00: It's an independent source of rights outside the statute or any regulation? [00:30:37] Speaker 05: That's the way it's been interpreted by the Veterans Court. [00:30:39] Speaker 05: It's an extra statutory, and I think it's even been interpreted as an extra constitutional, something that goes beyond the due process clause. [00:30:48] Speaker 05: But it provides a substantive right. [00:30:50] Speaker 05: We have never seen a case from any court that applies it as though it's a statutory interpretation canon, which, as you pointed out, Chief Judge Moore, would not be waivable. [00:31:02] Speaker 05: But that's not the way it's been interpreted by the Veterans Court. [00:31:06] Speaker 01: I understand that you haven't substantively addressed it. [00:31:11] Speaker 01: But I'm sort of perplexed by it. [00:31:13] Speaker 01: I was trying to read all the cases I could find on this [00:31:17] Speaker 01: Fair Process right to understand its scope. [00:31:21] Speaker 01: And I didn't really come away with a very clear understanding of the Veterans Court cases about what it extends to. [00:31:30] Speaker 01: But the one that's most cited here, because it's so on point for some reasons, is Arneson. [00:31:37] Speaker 01: Are you able to discuss the Arneson case with me? [00:31:40] Speaker 05: Sure. [00:31:41] Speaker 05: So there was a discussion of the Fair Process doctrine in Arneson, but Arneson wasn't really [00:31:47] Speaker 05: The decision in artisan wasn't really based on the fair process doctrine. [00:31:50] Speaker 05: It was based on the statutory language in 7107 and a regulation that was extended at the time that applied to panels, board panels, as opposed to individual board decisions. [00:32:01] Speaker 05: And then at the end, it also said that there is this doctrine that provides substantive procedural rights to veterans. [00:32:09] Speaker 01: Except it actually doesn't say that anywhere in artisan. [00:32:11] Speaker 01: Where does it say that? [00:32:12] Speaker 00: It says we don't need to reach it. [00:32:14] Speaker 01: Where does it say it provides substantive procedural rights to veterans? [00:32:19] Speaker 01: You have the case with you? [00:32:20] Speaker 01: I do. [00:32:27] Speaker 01: I'm going to help you with my understanding while you're looking for that, because I don't think that's said anywhere in the case. [00:32:33] Speaker 01: I'm going to help you with my understanding of Arminson. [00:32:36] Speaker 01: If you look at the header E, fair process and prejudice, [00:32:41] Speaker 05: I'm there. [00:32:42] Speaker 01: You have that? [00:32:43] Speaker 01: Yes. [00:32:43] Speaker 01: So here's Arneson. [00:32:44] Speaker 01: Arneson has both the statutory language that required same judge requirement. [00:32:49] Speaker 01: That's my shorthand for hearing and adjudication, same judge. [00:32:53] Speaker 01: There's a statute that required it, and there was a reg. [00:32:54] Speaker 01: 38 CFR 20.707. [00:32:56] Speaker 01: So sometimes the board screws up. [00:33:01] Speaker 01: Sometimes they fail to follow a rule or regulation. [00:33:06] Speaker 01: And there is an escape hatch. [00:33:08] Speaker 01: built into why we don't have to vacate every tiny little mess up. [00:33:15] Speaker 01: What's that escape hatch? [00:33:16] Speaker 01: What's the Veterans Court have the right to do when they say, oh, well, this is an error, but it's not? [00:33:23] Speaker 05: Harmless error. [00:33:24] Speaker 01: Right. [00:33:24] Speaker 01: It's a harmless error. [00:33:25] Speaker 01: In fact, the statute expressly says the Veterans Court can take due account of the prejudicial error concept. [00:33:32] Speaker 01: Because the Veterans Court doesn't usually get to make fact findings, does it? [00:33:35] Speaker 01: No. [00:33:35] Speaker 01: Right. [00:33:36] Speaker 01: But this is the one exception. [00:33:37] Speaker 01: The one exception where they can actually make fact findings is if they're trying to figure out whether an error the board made requires a do-over or not. [00:33:47] Speaker 01: Is it a harmless error? [00:33:49] Speaker 01: That is what this entire section is about. [00:33:51] Speaker 01: They talk about fair process, but they talk about it in the concept of prejudice, and they even cite 7261b2, which is guess what? [00:34:03] Speaker 01: They take the harmless error part for the veterans court. [00:34:06] Speaker 01: So this fair process concept, at least in the context of this Arneson case, is really limited to exactly what the statute permits, which is the Veterans Court to consider whether an error is harmless, harmful, prejudicial in the context of congressionally given statutory authority to do so. [00:34:27] Speaker 01: I don't see this case standing for some substantive independent right to always have the same judge decide the same thing or a requirement that fairness conceptually dictates it. [00:34:41] Speaker 01: Not from this case. [00:34:42] Speaker 01: I don't see anything like that. [00:34:43] Speaker 05: I agree with all of that 100% your honor. [00:34:46] Speaker 05: I think the amici primarily pointed out to other veterans court cases that deal with the fair process doctrine. [00:34:52] Speaker 01: Brian, Brian goes a bit further, right? [00:34:54] Speaker 01: Brian is the one that says this non-constitutional right stems in part from the nature of the non-adversarial system, and it sort of goes a bit farther, suggesting that even in situations where no particular process is required by statute or rig, the principle of fair process may nonetheless require additional process if it's viewed against the [00:35:17] Speaker 01: concepts of regular and basic fair play of the VA adversarial system. [00:35:21] Speaker 01: So, I mean, Bryant seems to do a little more of that creating a substantive right out of whole cloth concept. [00:35:30] Speaker 01: What do you make of that? [00:35:32] Speaker 01: I mean, is there such, does the VA have the authority to go beyond constitutional protections and create a new substantive [00:35:43] Speaker 01: right? [00:35:44] Speaker 01: It's like due process on steroids or something. [00:35:46] Speaker 01: I mean, what say you, I mean, about this concept? [00:35:51] Speaker 05: So, Your Honor, we didn't brief the substantive issue of fair process. [00:35:56] Speaker 05: And the reason is because we didn't have, the Veterans Court didn't have an opportunity to fully consider it in this particular context. [00:36:05] Speaker 05: So I think the only issue before this court when it comes to the Fair Process Doctrine is whether the Veterans Court abused its discretion in declining to consider it, as opposed to the substance of the doctrine itself. [00:36:16] Speaker 01: Well, don't I first have to conclude it was something that actually bestowed some sort of right or something? [00:36:25] Speaker 05: I would suggest no, Your Honor. [00:36:26] Speaker 05: I would suggest that as far as this argument goes, it was waived before the Veterans Court because it wasn't raised before the Veterans Court. [00:36:36] Speaker 05: The Veterans Court declined to consider it. [00:36:37] Speaker 01: What about the fact that the Veterans Court expressly asked them to come and address it? [00:36:42] Speaker 05: Well, it should not have done that under the party presentation rule. [00:36:45] Speaker 01: Right. [00:36:45] Speaker 01: But does that mean that maybe it forecloses their conclusion of waiver or forfeiture or whatever? [00:36:51] Speaker 05: There is no case suggesting that that's true. [00:36:55] Speaker 05: The Veterans Court simply looked at everything. [00:36:57] Speaker 05: It knew about it. [00:36:57] Speaker 05: It saw that there's no briefing on the subject. [00:36:59] Speaker 05: It saw that it wasn't fully developed by the parties, and it declined to consider it, even though- Another question. [00:37:05] Speaker 01: I didn't go back and look. [00:37:06] Speaker 01: The Veterans Court asked you all to come to the hearing to discuss it, but there wasn't paper on it, right? [00:37:11] Speaker 05: There was no paper on it, as far as the record indicates. [00:37:14] Speaker 01: What did you all say at the hearing about it? [00:37:16] Speaker 01: Did you limit yourself to the fact that it was waived or at the hearing, did you offer any understanding of what it meant or how it ought to apply if not waived? [00:37:25] Speaker 05: Unfortunately, I don't know the answer to what position the secretary took at the hearing before the Veterans Court on the Fair Process Doctrine. [00:37:32] Speaker 05: I can't, I don't know that today, Your Honor. [00:37:36] Speaker 05: I just want to make one final point. [00:37:37] Speaker 05: I see that I'm out of time. [00:37:38] Speaker 05: If I can have 10 seconds. [00:37:40] Speaker 05: Mr. Lippman said that this case saddles thousands of claimants. [00:37:47] Speaker 05: with a decision, a presidential decision that takes away their right to have the same board member both hear the case and make the final decision. [00:37:57] Speaker 05: It does not, because as far as the fair process doctrine is concerned, that substantive issue was not resolved by the Veterans Court. [00:38:04] Speaker 05: So if a future claimant wanted to bring a fair process doctrine kind of argument to the Veterans Court in this very context, they could do that. [00:38:11] Speaker 05: And if they do it properly and they preserve it before the Veterans Court, maybe one day it'll reach this court as well. [00:38:17] Speaker 01: Thank you. [00:38:18] Speaker 05: Thank you. [00:38:18] Speaker 01: I'm going to restore two minutes for your rebuttal time. [00:38:28] Speaker 02: Thank you, Your Honor. [00:38:29] Speaker 02: There's been some questions about the precedent or whether there's precedent from this court that deals with the Fair Process Doctrine. [00:38:40] Speaker 02: I did not brief it, but there is if I'd be allowed to mention the case. [00:38:45] Speaker 02: The case is Sprinkel v. Shinseki, and it's discussed at page 1185. [00:38:52] Speaker 00: Page 1185 of what? [00:38:57] Speaker 02: It's 733 Federal Third 1180. [00:38:59] Speaker 02: 733? [00:39:02] Speaker 02: Federal Third 1180. [00:39:05] Speaker 02: 1180. [00:39:05] Speaker 01: I have the case here. [00:39:12] Speaker 01: What would you like me to [00:39:13] Speaker 01: understand from it. [00:39:14] Speaker 01: Is there a principle in it that you think supports your case, or were you just making us aware of the fact that there does exist a case from 2013 that did mention the Fair Process Doctrine? [00:39:26] Speaker 01: Where were you going? [00:39:28] Speaker 02: Your Honor, on page 1185, it cites to a 1955 case from the United States Supreme Court called Gonzales versus United States. [00:39:38] Speaker 02: And it says, in Gonzales, the Supreme Court held that despite silence, [00:39:42] Speaker 02: in the applicable statute and regulations as to a particular procedural requirement. [00:39:48] Speaker 02: The requirement was implicit in the statute and regulations when viewed against our underlying concepts. [00:39:55] Speaker 02: of procedural regularity and basic fair play. [00:39:58] Speaker 01: And then it goes on to say, since that time, this court has held the due process clause of the constitution applies to proceedings in which the VA decides whether claimants are eligible for veterans benefits. [00:40:11] Speaker 01: The argument in this case was whether the due process clause applied. [00:40:14] Speaker 01: And our court basically made the fair process doctrine coextensive with the due process clause in that paragraph that you just cited. [00:40:23] Speaker 02: Yes, Your Honor. [00:40:27] Speaker 02: And I did brief, the second dissent went from the en banc request when the chief judge of the Veterans Court basically cited to Matthews v. Eldridge for essentially the same purpose, the issue of the fairness. [00:40:49] Speaker 01: OK. [00:40:49] Speaker 01: OK, thank you. [00:40:50] Speaker 01: We thank all counsel in this case. [00:40:51] Speaker 01: This case is taken under submission.