[00:00:00] Speaker 03:
23-13-87, Freund versus McDonough.

[00:00:05] Speaker 03:
Okay, Mr. Wang.

[00:00:07] Speaker 00:
May I face the court?

[00:00:09] Speaker 00:
Petitioners Freund and Mathewson were two among thousands who had their appeals wrongly closed.

[00:00:15] Speaker 00:
Even now, the Secretary appears to acknowledge that this situation is problematic and wrong, but the VA's position in this case prevents thousands of similar appeals from ever being addressed.

[00:00:29] Speaker 00:
That means veterans waiting for their benefits claims will be denied the benefits that they are entitled to under the law.

[00:00:38] Speaker 03:
Is there a typical period of delay between the filing of the substantive notice of appeal and a decision by the board?

[00:00:45] Speaker 03:
I know it can be several years, but is there a typical period?

[00:00:51] Speaker 00:
Your Honor, there is a delay.

[00:00:53] Speaker 00:
The Veterans Court in Gotsy, for instance,

[00:00:57] Speaker 00:
address this.

[00:00:58] Speaker 00:
It was something like 700 days between one step and 300 days in transmitting the transcript.

[00:01:06] Speaker 00:
Delays are normal.

[00:01:08] Speaker 00:
Judge Steich, that plays into why this was so deeply problematic, because veterans' claimants don't know that the delay is not due to the ordinary course of proceedings, but because the agency has frankly lost their appeal and has no plans to work on it.

[00:01:27] Speaker 03:
So I guess what I'm wondering is why couldn't a VA notify people who have, believe they have claims pending before the board that if they haven't received a response, let's say in three years, please let us know and we'll check to see whether the system has a glitch in it that has failed to recognize that you filed a notice of appeal.

[00:01:55] Speaker 00:
Absolutely.

[00:01:55] Speaker 00:
As Your Honor knows, we requested notice as part of the class-wide relief, you know, 263, 264 of the appendix.

[00:02:04] Speaker 00:
There is no reason why the agency can't notify, and indeed it is obligated to notify claimants under 19... Well, they wouldn't have to notify claimants whose appeals have been lost.

[00:02:15] Speaker 03:
They could just notify everybody who has a...

[00:02:20] Speaker 03:
file a claim at the RO and say, if you believe your appeal has gotten lost, let us know.

[00:02:26] Speaker 00:
Exactly, Judge Dyke.

[00:02:28] Speaker 00:
This, I think, gets to what ultimate relief the Veterans Court could fashion upon remand.

[00:02:33] Speaker 00:
Of course, that's not before this court, but I think that's a good point, that precisely there are more manageable ways of notifying potentially affected individuals if the Secretary's complaint at this point is that it could be too cumbersome.

[00:02:47] Speaker 00:
But we pointed out in our briefing below that it takes mere minutes for the secretary to create notice for each individual claimant.

[00:02:57] Speaker 00:
The burden really shouldn't be on the individual veteran.

[00:03:01] Speaker 00:
The MVLSP amicus brief at page 8 points out the vast majority are proceeding pro se.

[00:03:07] Speaker 00:
Individuals don't know that their appeals have been closed because they have done everything under those statutes and regulations that they were supposed to.

[00:03:16] Speaker 00:
They've turned square corners.

[00:03:18] Speaker 04:
So the basis for closing without notice, I think that's a regulation, right?

[00:03:23] Speaker 00:
That's right.

[00:03:24] Speaker 04:
Do you know what the history of that is?

[00:03:26] Speaker 04:
Does anybody try to challenge that regulation?

[00:03:29] Speaker 04:
That seems to be where the notice would most easily end.

[00:03:32] Speaker 04:
I mean, it's going to be a burden on the VA no matter what, but it's the one that matches up with the problem here most closely is if a case is closed, then you send notice to the veteran.

[00:03:46] Speaker 04:
Other than just sending notice to everybody whose cases have been pending for more than three years because, unfortunately, that's happening in a fair amount of cases.

[00:03:58] Speaker 04:
Did anybody challenge that regulation at the time?

[00:04:01] Speaker 04:
Or is that one of those old regulations that predates our review?

[00:04:06] Speaker 00:
So to choose, I'm not positive if anyone challenged the regulation.

[00:04:10] Speaker 00:
That's 38 CFR 19.32, and that's what the secretary points to, to say we don't have to provide notice.

[00:04:16] Speaker 00:
Of course, if you read the regulation, it says the agency can only close appeals as untimely if it's actually untimely without notice.

[00:04:25] Speaker 00:
I also point out that 19.34

[00:04:28] Speaker 00:
provides as an independent basis for an appeal the agency's determination of untimeliness.

[00:04:33] Speaker 00:
So the fact that there's no notice sent out whatsoever is deeply problematic.

[00:04:38] Speaker 00:
But Judge Hughes, just to more directly answer your question, it's not the regulation itself.

[00:04:43] Speaker 00:
that caused this problem is the VA's implementation in this vehicle system where somehow this program... So you don't have a problem with enclosing cases without notice if it fits the requirement to the regulation.

[00:04:56] Speaker 04:
It's just that here, it doesn't fit the requirement.

[00:05:00] Speaker 00:
Exactly.

[00:05:00] Speaker 00:
There's no way in which this fits.

[00:05:04] Speaker 00:
All of the veterans here did what they were supposed to.

[00:05:07] Speaker 00:
And indeed, as we point out in our FAQs... But wouldn't it be easier?

[00:05:11] Speaker 04:
I mean, I'm going to ask the VA this, but it wouldn't be easier to solve notice problems just to get notice to every veteran whose case was closed and say, we're closing your case because of X. And then they might, you know, a similar argument is going to be, well, there's probably a lot out there that they've stopped pursuing them, and it's a burden.

[00:05:30] Speaker 04:
And maybe they'll re-pursue them if they get notice.

[00:05:32] Speaker 04:
But, you know, that seems to me to be the logical way to get here.

[00:05:36] Speaker 04:
I know we're talking about stuff that can happen at the Veterans Court.

[00:05:42] Speaker 04:
but rather than requiring like periodic notices to large groups of people, the solution seems to match up.

[00:05:50] Speaker 04:
You close the case, you give the veterans notice.

[00:05:53] Speaker 00:
And indeed, Your Honor, the agency actually is supposed to provide notice about untimely appeals, because again, that's an independent basis for an appeal.

[00:06:01] Speaker 00:
That's 19.34.

[00:06:03] Speaker 00:
So yes, I would agree.

[00:06:05] Speaker 00:
The agency has at its disposal various tools

[00:06:08] Speaker 00:
Again, uniquely within its possession, its knowledge.

[00:06:13] Speaker 00:
Petitioners filed, for instance, a FOIA request in December 2020, never got a response until this action started.

[00:06:19] Speaker 00:
So, you know, there are various tools at the agency.

[00:06:23] Speaker 04:
Can I just ask you, I'm a little confused about what you want us to do here.

[00:06:30] Speaker 04:
I mean, I know you want us to

[00:06:33] Speaker 04:
to overturn the denial of the certification.

[00:06:38] Speaker 04:
Is it because the Veterans Court wrongly found that the petitioner's claims were moot or that the class claims were moot?

[00:06:47] Speaker 04:
I mean, the petitioner's claims, I think you agree, are moot.

[00:06:52] Speaker 04:
The class claims you argue aren't, which seems right to me.

[00:06:55] Speaker 04:
What's the basis for us to send it back?

[00:06:58] Speaker 04:
And what do you want us to do?

[00:06:59] Speaker 04:
Do you want us just to tell the Veterans Court that they actually have to do the class certification analysis now and determine whether there's adequacy, commonality, all that kind of stuff?

[00:07:11] Speaker 00:
Right.

[00:07:11] Speaker 00:
So just to start from the top and work my way down, we agree petitioners' individual claims are moot.

[00:07:17] Speaker 00:
We pointed out in the standing discussion of our opening brief and also in our reply, which, by the way, the secretary does not defend.

[00:07:24] Speaker 00:
He calls it dicta.

[00:07:25] Speaker 00:
But we point out that petitioners have standing to seek reinstatement, but also a determination of unlawfulness.

[00:07:34] Speaker 00:
It's unlawful, there, ergo, you have to reinstate that they should have received notice.

[00:07:39] Speaker 00:
that part of the Veterans Court's reasoning, we would respectfully request the court to correct, you know, the secretary does not defend it.

[00:07:46] Speaker 00:
There's some weird reasoning by the Veterans Court about they're lacking standing because they were mooted, and that's simply not the doctrine of standing.

[00:07:54] Speaker 03:
Do you want us to say that the class

[00:07:58] Speaker 03:
issues and the class relief is not moved because of transitory exception, right?

[00:08:03] Speaker 00:
Exactly, Judge Dyke.

[00:08:04] Speaker 00:
We want this court to hold that the inherently transitory exception applies here.

[00:08:09] Speaker 00:
I was about to get to that.

[00:08:10] Speaker 00:
So the Veterans Court recognized that it would apply if certification is appropriate.

[00:08:16] Speaker 00:
So we want this court to recognize the inherently transitory exception applies.

[00:08:21] Speaker 00:
going all the way back to Sosna in 1975.

[00:08:23] Speaker 01:
Do you also, I understand that that's what you're seeking, but do you also want us to say that the Veterans Court erred in its analysis of adequacy and commonality because of the notice points and the standing confusion between standing and mootness points?

[00:08:39] Speaker 00:
Correct, Judge Stoll.

[00:08:40] Speaker 00:
So there are essentially three different parts that this court should address.

[00:08:45] Speaker 00:
standing, inherently transitory applies, and an on-class surrogation, again, undefended by the secretary.

[00:08:51] Speaker 00:
The reasoning on adequacy and commonality were just wrong as a matter of law.

[00:08:56] Speaker 03:
Has the government made any other arguments as to why a class is not appropriate?

[00:09:00] Speaker 00:
So for the first time on appeal, the secretary argues ascertainability.

[00:09:04] Speaker 00:
We pointed out in our reply why that's forfeited.

[00:09:07] Speaker 00:
They didn't press that below, but also how that's inappropriate.

[00:09:11] Speaker 00:
Of course, in the veterans court below,

[00:09:13] Speaker 00:
the secretary made various arguments on adequacy, commonality, typicality, that bottom out to what we point out in our opening brief was incorrect, that, again, the secretary does not repress on appeal, saying it was dicta by the Veterans Court.

[00:09:27] Speaker 00:
So I would respectfully submit that it is essentially undefended on the basis of the Veterans Court's decision.

[00:09:34] Speaker 00:
So we point out in our reply brief, a First Circuit case.

[00:09:38] Speaker 00:
where the First Circuit recognized that the only basis for class certification denial was incorrect.

[00:09:44] Speaker 00:
The district court applied 23B3 instead of 23B2.

[00:09:48] Speaker 00:
And just on that basis, recognizing the only hurdle to class certification was incorrect, directed

[00:09:54] Speaker 00:
reversal and classification.

[00:09:57] Speaker 00:
Of course, this court can just simply vacate and remand, but we respectfully point out that petitioners Floyd and Matheson are representative.

[00:10:05] Speaker 00:
They filed their original benefits claims back in 2016, 2017.

[00:10:09] Speaker 00:
Here we are in 2024 trying to get this problem corrected for the rest of the class, and further delays will only exacerbate the problem.

[00:10:18] Speaker 00:
So because it's been fully teed up,

[00:10:20] Speaker 00:
The Secretary has not really fulsomely briefed this issue on appeal.

[00:10:25] Speaker 00:
It's essentially undefended.

[00:10:27] Speaker 00:
We don't think the equities should allow the Secretary to take another bite of the apple and press further arguments on class surrogation.

[00:10:36] Speaker 03:
So the argument is it's not ascertainable because it's hard for them to identify the people who were injured because of the glitch.

[00:10:47] Speaker 00:
Yeah, it's an odd fit for ascertainability.

[00:10:49] Speaker 00:
That's not what ascertainability requires.

[00:10:52] Speaker 00:
Is that their argument?

[00:10:53] Speaker 00:
Exactly.

[00:10:53] Speaker 00:
That's their argument.

[00:10:55] Speaker 04:
And, of course, it's- I mean, don't you think that that's something that perhaps the Veterans Court might be in a better position to address than us, though?

[00:11:02] Speaker 04:
I mean, the Veterans Court, I think, probably did err here, at least with regard to the mootness of the class, and even though it made decisions on

[00:11:13] Speaker 04:
the actual issues of class certification, they were all jumbled up in what seemed to be a somewhat flawed standing determination.

[00:11:22] Speaker 04:
And so if we send it back, then the Veterans Court can correct those errors.

[00:11:27] Speaker 04:
I mean, it seemed pretty apparent that there probably is commonality and adequacy, but then can go through with the rest of it and also determine what the appropriate class relief is.

[00:11:40] Speaker 00:
Sure.

[00:11:41] Speaker 00:
If this court does not want to reach the rest of the class certification grounds, this court can remand.

[00:11:46] Speaker 00:
Again, I would just point out that this was not pressed below.

[00:11:50] Speaker 00:
So it's an odd sort of posture to allow the secretary, again, to re-brief something.

[00:11:55] Speaker 00:
He should have briefed first.

[00:11:56] Speaker 04:
Well, I understand.

[00:11:56] Speaker 04:
But I mean, if a class gets certified here, it's going to be a huge burden on the VA.

[00:12:03] Speaker 04:
And perhaps they should be undertaking this.

[00:12:06] Speaker 04:
It sounds like if they close cases without

[00:12:10] Speaker 04:
properly and haven't given people notice, they need to fix it.

[00:12:15] Speaker 04:
But the exact way that remedy happened seems best left in the hands of the Veterans Court, and with maybe some further briefing from both parties.

[00:12:24] Speaker 00:
So I would just tease out two distinct strands there.

[00:12:28] Speaker 00:
One is certification, one is class relief.

[00:12:31] Speaker 00:
I think if this court is persuaded that a class exists, there's pre-May 2017, the secretary hasn't touched, there's closures that continue to happen even today.

[00:12:39] Speaker 00:
If this court is satisfied that there exists a class,

[00:12:43] Speaker 00:
It can direct that at class.

[00:12:45] Speaker 04:
I mean, part of the problem is you've done a great job up here on briefing.

[00:12:48] Speaker 04:
But the briefing below was not great from your side.

[00:12:51] Speaker 04:
And I think it confused the Veterans Court a little bit on some of these issues, which is why I think we've ended up with this mess of confusing mootness for the petitioners of the classes as a whole and things like that.

[00:13:03] Speaker 04:
So I just wonder if it's worth letting the Veterans Court redo it under a proper legal standard.

[00:13:13] Speaker 00:
I would also respectfully point out that the secretary's briefing on this point, pressing adequacy and commonality that am can or can't ground that he no longer defends on appeal, that's the basis of the Veterans Court's reasoning.

[00:13:26] Speaker 04:
I'm not saying their briefing was good either.

[00:13:29] Speaker 04:
I'm just saying it was confusing, and I understand why the Veterans Court judge might have gone down the wrong path here.

[00:13:38] Speaker 03:
You're not asking us to determine what the relief should be.

[00:13:44] Speaker 00:
No, Judge Dyke.

[00:13:45] Speaker 00:
That is for the Veterans Court to decide in first instance.

[00:13:47] Speaker 00:
This case never got out of the gate because of all the erroneous reasoning on mootness that this court should vacate.

[00:13:56] Speaker 03:
OK.

[00:13:57] Speaker 03:
Thank you.

[00:13:58] Speaker 03:
We'll give you two minutes for rebuttal.

[00:14:00] Speaker 03:
Mr. Wisser.

[00:14:06] Speaker 02:
Good morning, Your Honors.

[00:14:06] Speaker 02:
May it please the Court?

[00:14:08] Speaker 02:
To be clear about the government's position here, we recognize that there are difficult questions about mootness as to the class.

[00:14:14] Speaker 02:
We also are not providing... Difficult questions?

[00:14:18] Speaker 04:
We are also... Let's just assume we disagree with you that there is standing... I don't know how the Veterans Court got here.

[00:14:25] Speaker 04:
I suspect it's what I said is that the briefing was confusing from both sides below, I think.

[00:14:31] Speaker 04:
Let's just assume we find that the Veterans Court erred in finding

[00:14:35] Speaker 04:
that the class was moved, and that there wasn't standing for the class, and that therefore he improperly denied certification.

[00:14:45] Speaker 04:
Do you actually have substantive arguments on common issues, adequacy, and all that things like that that the Veterans Court needs to consider?

[00:14:54] Speaker 04:
Because it sure sounds like there's a common issue, and it sounds like the petitioners are adequate.

[00:15:01] Speaker 02:
Yes, Your Honor.

[00:15:01] Speaker 02:
So what we would request, and let me just make sure I lay out our position, we believe there is a defect in the Article III jurisdiction for the named petitioners that occurred before the class certification decision was reached, which means the case cannot go forward.

[00:15:16] Speaker 02:
Putting that aside.

[00:15:16] Speaker 04:
What is that defect?

[00:15:18] Speaker 02:
The defect is that the claims were moot, which is not disputed for the named petitioners under Supreme Court precedent because they were mooted.

[00:15:24] Speaker 04:
Oh, we're talking about the inherently transitory statement?

[00:15:26] Speaker 04:
That's correct, Your Honor.

[00:15:27] Speaker 04:
Just assume we disagree with that.

[00:15:29] Speaker 02:
If we move past all that.

[00:15:30] Speaker 02:
Yeah.

[00:15:31] Speaker 02:
then our position would be that remit is appropriate for the reasons that Your Honor explained.

[00:15:35] Speaker 03:
Remit on what?

[00:15:37] Speaker 03:
Remit as to relief?

[00:15:38] Speaker 03:
Sure.

[00:15:38] Speaker 02:
As to class certification, Your Honor.

[00:15:40] Speaker 03:
What are the issues that need to be addressed?

[00:15:42] Speaker 02:
So there are two points that we would make on that, Your Honor.

[00:15:44] Speaker 02:
First is, even though the Veterans Court did address some of the questions on two of the elements for class certification, they would need to make the findings necessary on all the elements of class certification.

[00:15:55] Speaker 01:
And so the Veterans Court... Are those arguments below on those other

[00:15:58] Speaker 02:
No, Your Honor, because the arguments were presented in the alternative.

[00:16:03] Speaker 02:
And I think that's reflected, as Judge Hughes suggested, reflected in the decision.

[00:16:07] Speaker 01:
You didn't present any arguments below on the other factors for class certification?

[00:16:12] Speaker 02:
Not that I understand, Your Honor, because it was explained as an alternative basis for denying for jurisdiction, not as a sort of merits explanation in full, is my understanding of the position taken below.

[00:16:24] Speaker 02:
And I think that's reflected in the messiness of the Veterans Court decision.

[00:16:28] Speaker 04:
But what explicitly do you think would be disputed by the VA with regards to the class certification issues below?

[00:16:35] Speaker 02:
So ascertainability is the point that we presented in this briefing here, recognizing that it's hard for you to identify the people.

[00:16:41] Speaker 02:
Well, not simply hard.

[00:16:42] Speaker 02:
We believe it's not actually possible to identify the individuals affected, because what we're talking about is a class of individuals between 2003 and 2017.

[00:16:51] Speaker 03:
So what he says that

[00:16:53] Speaker 03:
You don't have the ascertainability requirement for class action satisfied because it's hard to do it.

[00:16:58] Speaker 02:
There's third circuit precedent on that issue, Your Honor.

[00:17:00] Speaker 02:
This circuit has not addressed ascertainability as it relates to class actions.

[00:17:04] Speaker 02:
That's another reason why we believe it would be most appropriate.

[00:17:06] Speaker 03:
What is the third circuit?

[00:17:07] Speaker 03:
What case is that?

[00:17:12] Speaker 02:
I apologize, Your Honor.

[00:17:12] Speaker 02:
I have to double check if you actually included the citation in our briefing.

[00:17:15] Speaker 02:
You may have removed it in the final version of the briefing.

[00:17:19] Speaker 02:
But there is third-circuit case law.

[00:17:22] Speaker 02:
The standards for ascertainability are not consistent among the circuits, some of the higher bar, some of the lower bar, whether it is possible to determine the members of the class.

[00:17:32] Speaker 03:
It's hard to figure out who the class members are, and the defendant would have a hard time identifying them.

[00:17:38] Speaker 03:
That's a basis for what case.

[00:17:40] Speaker 03:
Yes, Your Honor.

[00:17:46] Speaker 02:
I apologize, Your Honor.

[00:17:47] Speaker 02:
I know I had it in a draft of the brief, and I fear that I may have taken out.

[00:17:51] Speaker 02:
I think, so, okay, we did have one of the cases cited.

[00:17:55] Speaker 02:
Sorry, Marcus versus BMW of North America, 687 F3rd, 583.

[00:17:59] Speaker 03:
Where is this cited in the brief?

[00:18:01] Speaker 02:
Page 36 of our response to the brief, Your Honor.

[00:18:06] Speaker 02:
And it says, the quote we pulled from that decision was, at least with respect to actions under Rule 23, the class must be currently and readily ascertainable based on objective criteria.

[00:18:16] Speaker 03:
What page?

[00:18:17] Speaker 02:
Page 36, the very last page of our response brief, Your Honor.

[00:18:24] Speaker 02:
You mean 37.

[00:18:26] Speaker 02:
I'm sorry.

[00:18:28] Speaker 02:
I flipped the reply brief.

[00:18:30] Speaker 02:
I flipped to the petitioners' reply brief, where they brought forward the case that I think we had identified.

[00:18:37] Speaker 03:
So you didn't cite the case?

[00:18:39] Speaker 02:
It does not appear that we included the citation in our file version, Your Honor.

[00:18:43] Speaker 03:
And where did they cite it?

[00:18:44] Speaker 02:
So they cited it on page 36 of their reply.

[00:18:47] Speaker 02:
It is the same case that we had identified.

[00:18:50] Speaker 04:
Why do you say this is not ascertainable?

[00:18:54] Speaker 02:
Because, Your Honor, we have views estimated.

[00:18:59] Speaker 02:
781,951 cases that could potentially be impacted by this.

[00:19:05] Speaker 03:
Okay, so but what case says that the fact that it's hard for you to do it means that you shouldn't certify the class?

[00:19:12] Speaker 03:
I don't see that Third Circuit case cited by your opposing counsel as saying that.

[00:19:19] Speaker 03:
What case says that?

[00:19:20] Speaker 02:
It is that case, Your Honor.

[00:19:21] Speaker 02:
That's the case we would rely on as well.

[00:19:24] Speaker 03:
And the case involved where it was hard for the defendant to identify the class?

[00:19:27] Speaker 03:
Yes, Your Honor.

[00:19:28] Speaker 02:
You just didn't want to be the cause in that case.

[00:19:32] Speaker 02:
For the same reasons that it's hard in this case, Your Honor, that there was a class of potentially impacted individuals, but it was impossible to determine which within that universe were actually impacted.

[00:19:41] Speaker 01:
Over-potentially impacted.

[00:19:43] Speaker 02:
So what we have here... I'm sorry, Your Honor.

[00:19:45] Speaker 01:
I understand what we have here.

[00:19:46] Speaker 01:
I want to know what was going on in Marcus that you think was analogous.

[00:19:51] Speaker 02:
So it was a class action related to manufacturing defects, and there was an understanding that some defects existed, but it was impossible to determine which particular vehicles were affected.

[00:20:02] Speaker 02:
And so the same issue here that there is a statistical understanding.

[00:20:08] Speaker 03:
It was said it was impossible.

[00:20:11] Speaker 02:
I don't know if it's possible with the precise word.

[00:20:13] Speaker 04:
That seems very factually different.

[00:20:14] Speaker 04:
I mean, if the cars are sold in the hands of the consumers, then the manufacturer can't go out and demand to look at all of them.

[00:20:22] Speaker 04:
You have all the records here.

[00:20:23] Speaker 04:
I know they're voluminous.

[00:20:25] Speaker 04:
It would take a lot of man hours, and that may go towards what relief you get.

[00:20:29] Speaker 04:
You just said that there's potentially, what, 781,000 cases that are impacted by this.

[00:20:35] Speaker 02:
781,000 is the total number of cases.

[00:20:37] Speaker 02:
How do you know that?

[00:20:37] Speaker 02:
That's the total number of cases that VA closed between 2003 when the VACOL system was implemented and May 2017 when VA began its systematic review of all closures.

[00:20:47] Speaker 02:
So that's a total number of claims closed for any reason whatsoever.

[00:20:51] Speaker 04:
And there is no way based on the data that VA kept during that time period for VA to look at files.

[00:21:01] Speaker 04:
Your case was closed during this period.

[00:21:02] Speaker 04:
If you think it was improperly closed, please contact us.

[00:21:06] Speaker 04:
I don't want to get into the details.

[00:21:08] Speaker 04:
But that's relief.

[00:21:09] Speaker 04:
But it doesn't sound like, to me, that it's unassertainable.

[00:21:13] Speaker 04:
It sounds like you may have to not be able to ascertain the specific class, but you can ascertain a bigger class that includes these people.

[00:21:22] Speaker 02:
Potentially.

[00:21:22] Speaker 02:
It's not clear that VA even has contact information for all 781,000.

[00:21:26] Speaker 02:
So it's not clear that VA would even be capable of sending the notices.

[00:21:30] Speaker 04:
I mean, isn't that all stuff implementation for the Veterans Court to decide how it's going to order a leak, how it's going to implement it, recognizing the sensitivities that this is going to put on you, but also recognizing the people whose claims were improperly closed after they submitted a substantive notice, how it right to have those claims heard?

[00:21:51] Speaker 02:
They did not.

[00:21:53] Speaker 02:
I want to pivot back to the mootness piece.

[00:21:57] Speaker 02:
I understand the court's concerns and I'm not resisting them strenuously about the class-wide relief here.

[00:22:03] Speaker 02:
There is a jurisdictional defect and I want to make sure our position is clear because I think this court will need to address it in the opinion and I want to provide the government's position to make sure the court is addressing it correctly.

[00:22:14] Speaker 02:
Once the petitioner's claims became moot, before the Veterans Court took action on class certification, under Supreme Court precedent, the case had to be dismissed, which is what the Veterans Court correctly did.

[00:22:24] Speaker 02:
This is not true.

[00:22:25] Speaker 02:
The exception is for inherently transitory activities.

[00:22:29] Speaker 02:
But as the Supreme Court said in Genesis, the inherently transitory nature of the challenged conduct has to be determined independent of litigation conduct.

[00:22:38] Speaker 02:
And it has to be determined based upon the conduct itself.

[00:22:41] Speaker 03:
You say yourself that the policy that

[00:22:44] Speaker 03:
the VA applies in these circumstances of reopening the cases is not a litigation-driven policy.

[00:22:52] Speaker 02:
No, it's not, Your Honor, but the point is that the challenge conduct, the way that the petition for relief for Randamus was framed, was that the problem here is cases that are closed and that remain closed indefinitely, permanently, without further action.

[00:23:04] Speaker 02:
That's not inherently transitory.

[00:23:06] Speaker 04:
And I understand the... Do you really think, if we were really into this, that the Supreme Court is going to reverse us?

[00:23:12] Speaker 04:
Haven't you been watching what the Supreme Court's been doing in veterans cases?

[00:23:15] Speaker 02:
What I'm explaining, Your Honor, is that this court will need to make a clear finding that the challenge conduct, meaning indefinite inaction, is inherently transitory by its nature.

[00:23:26] Speaker 03:
It's inherently transitory because once the people are identified, you're going to grant the relief.

[00:23:30] Speaker 02:
So I want to be clear about this point, Your Honor, because that's a separate argument

[00:23:33] Speaker 02:
that the petitioners are making.

[00:23:35] Speaker 02:
They're relying on the picking off exception.

[00:23:36] Speaker 02:
That's a separate thing.

[00:23:37] Speaker 03:
It's not inherently transitory.

[00:23:38] Speaker 03:
No, that relates to inherently transitory.

[00:23:41] Speaker 03:
That's my understanding of what they're arguing.

[00:23:42] Speaker 03:
They're saying it's inherently transitory because once the people are identified, they get relief.

[00:23:47] Speaker 02:
And I agree that's part of their argument, Your Honor.

[00:23:49] Speaker 02:
The Supreme Court rejected that in Genesis.

[00:23:52] Speaker 02:
That the fact that defendants will act to provide relief when requested is not a basis to... I don't think that's a correct reading of the case.

[00:24:00] Speaker 02:
Well, I will admit, Your Honor, the genesis ultimately dealt with FLSA collective certifications.

[00:24:05] Speaker 02:
There is a factual distinction.

[00:24:07] Speaker 02:
But the point that they made in summarizing the relevant case law and the inherently transitory exception was that it has to be in the paradigm.

[00:24:14] Speaker 04:
Can I just get you back to the, because I'm still unclear what you're disputing.

[00:24:18] Speaker 04:
If we disagree with you on this standing stuff.

[00:24:22] Speaker 04:
what you're disputing or what disputed issues there would be for the Veterans Court to resolve if we vacate and remand rather than just say this class should have been certified.

[00:24:33] Speaker 04:
And that's the two options I think you're going to get here.

[00:24:35] Speaker 04:
Yes, Your Honor.

[00:24:37] Speaker 04:
So is there an issue with regard to commonality?

[00:24:40] Speaker 04:
or is there an issue with regard to adequacy that's separate from all this mootness stuff?

[00:24:45] Speaker 02:
We have not presented this court with any arguments on those points.

[00:24:47] Speaker 02:
We believe ascertainability is something the Veterans Court would need to address.

[00:24:51] Speaker 02:
I understand the concerns about waiver there.

[00:24:54] Speaker 02:
But I think to judge use your point in the opening argument,

[00:24:58] Speaker 02:
The Veterans Court very pointedly said it was not addressing the full elements for class certification.

[00:25:04] Speaker 02:
We believe we should provide the Veterans Court in the first instance the chance to do that.

[00:25:07] Speaker 02:
We believe, I think, it comes through in the petitioner's briefing.

[00:25:11] Speaker 02:
One of their concerns is the precedential effect of this Veterans Court decision on future class action certification.

[00:25:16] Speaker 04:
I just have one more question on ascertainability.

[00:25:19] Speaker 04:
You say you don't have the data.

[00:25:21] Speaker 04:
Is that because

[00:25:22] Speaker 04:
the only way to get it is to look through every single one of those 781,000 cases and see if a statement of the case was submitted and see if it was closed.

[00:25:35] Speaker 04:
That doesn't sound unassertainable.

[00:25:37] Speaker 04:
That sounds incredibly burdensome.

[00:25:40] Speaker 04:
But that sounds like a question for relief, not class certification.

[00:25:45] Speaker 02:
I acknowledge that may be a question for relief.

[00:25:46] Speaker 02:
I think that there is some

[00:25:49] Speaker 02:
precedent in the Third Circuit that proportionality and effort comes into play.

[00:25:53] Speaker 02:
And the only point I would make there is because this Court has not made any determinations on how ascertainability applies to class actions.

[00:26:00] Speaker 02:
It is a disputed issue among circuits.

[00:26:03] Speaker 02:
It would be better for the factual development and the legal development to let the Veterans Court address that issue if it determines, also in the first instance, that it hasn't been waived by the Secretary.

[00:26:11] Speaker 02:
I think all of those issues should be left to the Veterans Court to determine in the first instance.

[00:26:17] Speaker 02:
I do want to

[00:26:19] Speaker 02:
just leave with the point that the inherently transitory exception should not be applied here.

[00:26:28] Speaker 02:
And I understand the reluctance of this court to reach that determination given the issues of relief that are at stake here.

[00:26:37] Speaker 02:
And the only point that I would make in response to that is that the court can't manufacture an Article III case in controversy just to reach the relief that it would like to reach.

[00:26:48] Speaker 02:
And if there is no Article III case in controversy.

[00:26:51] Speaker 03:
We can't decline to misread the cases the way you're suggesting.

[00:26:54] Speaker 02:
Respectfully, Your Honor, we believe that our reading is consistent with how the Supreme Court has approached this issue.

[00:26:59] Speaker 04:
How would there ever be a class in this factual scenario?

[00:27:04] Speaker 02:
There may not be, Your Honor.

[00:27:05] Speaker 02:
And again, as the Supreme Court has reminded us over and over on Article III jurisdictional issues, the fact that you may not be able to afford relief is not a justifiable basis on its own to find an Article III case in controversy.

[00:27:17] Speaker 03:
I gotta say, I really find the VA's position and attitude about this to be unsatisfactory.

[00:27:26] Speaker 03:
I mean, you, as a result of adopting a bad system,

[00:27:32] Speaker 03:
have caused injury to a lot of veterans and your position seems to be it would be hard to fix it so we're not going to do anything about it.

[00:27:42] Speaker 03:
That does not sit well.

[00:27:44] Speaker 02:
I understand the court's concern and the only thing I'll say is that it's more than hard.

[00:27:47] Speaker 02:
I think if it were simply hard VA would do it and that's what VA did.

[00:27:50] Speaker 02:
It was hard to do what VA did to identify all of the potentially affected claimants between 2017 and 2022.

[00:27:56] Speaker 02:
It took thousands of hours but they did it because it was the right thing to do.

[00:27:59] Speaker 02:
It goes beyond hard to find the potentially effected claimants from 2003 to 2017.

[00:28:04] Speaker 02:
It borders on the impossible.

[00:28:06] Speaker 02:
And that's why VA has taken the position it is.

[00:28:10] Speaker 04:
Respectfully, we... When you say it borders on the impossible, is that because of man hours and resources?

[00:28:15] Speaker 02:
It is, Your Honor.

[00:28:16] Speaker 02:
And just to provide the calculation, VA has estimated it would take about 250,000 labor hours to process all these claims.

[00:28:23] Speaker 03:
We're talking about VA... It would require 250,000 man hours to notify

[00:28:29] Speaker 03:
people that this problem exists and ask them to tell you if their cases seem to have gotten lost in the system.

[00:28:37] Speaker 02:
It may go down a little bit, Your Honor, but realistically, it's not going to go down that much because VA doesn't have adequate contact information for a lot of these veterans.

[00:28:44] Speaker 02:
Do they?

[00:28:44] Speaker 03:
Are people required to notify the VA about what their changes are?

[00:28:48] Speaker 02:
They are, but they're practicalities here, Your Honor.

[00:28:50] Speaker 04:
Doesn't that just get a relief, though?

[00:28:52] Speaker 04:
I mean, I really don't understand why you just can't send out a notice to everybody whose cases were

[00:28:59] Speaker 04:
Because you said you know what the $781,000 is.

[00:29:05] Speaker 04:
Why you can't just send out a notice to the best address you have for all of those and say, if your case was closed during this time period and you think it was improperly closed, let us know.

[00:29:15] Speaker 02:
Because out of that $781,000, VA's best estimate is there's far less than 1% out of those that may have been potentially affected.

[00:29:22] Speaker 02:
Who cares?

[00:29:23] Speaker 02:
Well, the point, Your Honor, is that from VA's experience here,

[00:29:27] Speaker 02:
way more than 1% is going to respond to that notice.

[00:29:30] Speaker 02:
And so we're not meaningfully reducing the challenge from VA's perspective, that they're going to get notices from a much higher percentage of people who are going to do what veterans understandably will do, which is say, I may have had an issue, I want to check it out.

[00:29:44] Speaker 02:
We understand that impulse.

[00:29:46] Speaker 02:
But it's not going to change the management challenge for VA.

[00:29:50] Speaker 01:
What is your basis for saying it's less than 1% anyway?

[00:29:53] Speaker 01:
Because the... Well, you don't know who it is.

[00:29:55] Speaker 01:
You really don't know that.

[00:29:56] Speaker 02:
Well, the rate of error that VA found between May 2017, and I apologize, I see I'm out of time, but I'd like to answer the question, Your Honor.

[00:30:04] Speaker 02:
The rate of error between May 2017 and January 2022, which was the

[00:30:09] Speaker 02:
293,000 cases VA was able to identify found this error rate was 1.5%.

[00:30:14] Speaker 02:
So that's the number of closures that should not have been closed because they had a valid appeal.

[00:30:20] Speaker 02:
So that's the absolute ceiling.

[00:30:22] Speaker 02:
It's unlikely to be higher than 1.5%.

[00:30:25] Speaker 02:
It's very likely to be lower because, again, we're talking about cases that are pending between 7 and 21 years.

[00:30:31] Speaker 02:
The odds that someone went 7 to 21 years without taking any effort to

[00:30:36] Speaker 02:
inquire with VA about the status of their appeal is much lower.

[00:30:40] Speaker 02:
And as we pointed out in the briefing, as soon as VA identifies an issue or realizes something may have gone on, they will reactivate the appeal.

[00:30:47] Speaker 01:
What is your scientific method for determining the percentage of parties that might respond to your notice, but wrongfully?

[00:30:55] Speaker 01:
percentage of veterans who would do that?

[00:30:57] Speaker 02:
It's not a point we put in the brief, Your Honor.

[00:30:59] Speaker 02:
It's just based upon VA's experience that whenever they send mass notices, veterans tend to respond.

[00:31:05] Speaker 02:
Even if they aren't responding necessarily substantively, they just tend to respond.

[00:31:09] Speaker 02:
And that's because these are important issues, and they're issues that are affecting their health, and we recognize that.

[00:31:14] Speaker 02:
But it's an unfortunate reality of the management challenge here.

[00:31:20] Speaker 03:
Thank you, Your Honor.

[00:31:28] Speaker 00:
I'll keep this brief.

[00:31:30] Speaker 00:
The secretary, I think I heard him saying that he didn't argue the other grounds of class certification.

[00:31:35] Speaker 00:
That's not accurate.

[00:31:36] Speaker 00:
You look at Appendix 710, he argues typicality basically on the same grounds as commonality.

[00:31:44] Speaker 00:
And that there are no common issues tying the class together.

[00:31:48] Speaker 00:
And as we pointed out, that's simply not the case in our opening brief.

[00:31:52] Speaker 00:
And the secretary does not respond in his response brief.

[00:31:54] Speaker 00:
So for the reasons of forfeiture that Your Honors have walked through.

[00:31:58] Speaker 04:
Well, maybe I misheard them.

[00:32:01] Speaker 04:
But I thought I was asking them today what they were still disputing.

[00:32:04] Speaker 04:
And it sounded like not a lot.

[00:32:07] Speaker 00:
I agree.

[00:32:07] Speaker 04:
If we found that it wasn't moot.

[00:32:10] Speaker 00:
I agree, Your Honor.

[00:32:12] Speaker 00:
the agencies shouldn't get a mulligan to re-brief class certification when there just isn't that argument in the record.

[00:32:21] Speaker 00:
I think this Court appreciates that there are ways of fashioning relief for the Veterans Court, that ascertainability as they pointed to our case that we cited.

[00:32:29] Speaker 04:
Well, there are certainly ways, and they may have to be done because these are problematic years, but it's going to cost tens of millions, if not hundreds of millions of dollars to do this probably.

[00:32:43] Speaker 00:
Respectfully, I think the question of relief is, again, not before this Court, but even taking the... We're going to leave it to the Veterans Court to decide these issues.

[00:32:54] Speaker 00:
Right.

[00:32:54] Speaker 00:
Even by the Secretary's own framing, if absent a class action,

[00:32:59] Speaker 00:
the agency's asking for individual petitions, which are surely much more costly on an institutional level and a burden on the Veterans Court, but also just practically unrealistic given the per se status of a lot of these veterans.

[00:33:12] Speaker 00:
And so this idea of we don't want to notify people because they might come out of the woodworks is really just a perverse sort of approach for the agency when there are so many veterans who likely have their just benefits appeals closed.

[00:33:27] Speaker 00:
So with that, we respectfully request that this court vacate and reverse Henry Mann for Determination of Merits.

[00:33:34] Speaker 03:
Thank you.

[00:33:34] Speaker 03:
Thank both counsels for the pieces.