[00:00:00] Speaker 01:
Our next case is Eugene Gabrielli versus Secretary of Veterans Affairs, 2022-1505.

[00:00:07] Speaker 01:
Mr. Attick, I hope I pronounced your name correctly.

[00:00:14] Speaker 04:
Yes, Your Honor, you did.

[00:00:18] Speaker 04:
May it please the Court.

[00:00:20] Speaker 04:
Mr. Gabrielli, ask the Court for a very narrow ruling in this case.

[00:00:24] Speaker 03:
Before you get into the substance of your argument,

[00:00:27] Speaker 03:
It's actually not Mr. Gabrielli who's asking for relief since he's deceased.

[00:00:32] Speaker 03:
Ms.

[00:00:33] Speaker 03:
Worthy is asking us for relief, right?

[00:00:37] Speaker 04:
That is correct, Your Honor, and I apologize.

[00:00:39] Speaker 03:
Do we need a motion under Rule 43 of the appellate rules to have her substituted in his place?

[00:00:51] Speaker 03:
The normal rule is that we can't proceed if the party who's seeking relief is deceased.

[00:01:03] Speaker 04:
you know i i i i admit i'm i'm without uh... uh... an answer on that question i believe it sounds appropriate what you're suggesting and i apologize to the court for not submitting a motion to substitute miss worthy would you like to make such a motion uh... yes your honor i would like to move to substitute uh... miss worthy into this appeal for the matter of adjudicating questions before the court i'd like to know if the government has a position on that i don't know if that's appropriate at this time if you'd like me to address the court yes uh...

[00:01:33] Speaker 00:
I mean, we would oppose such a motion for the same reasons that are articulated in our briefing and for the same reasons why the Veterans Court denied a similar motion that was made before that court.

[00:01:49] Speaker 01:
Well, is there a judgment on it?

[00:01:52] Speaker 01:
In the meantime, Mr. Attick can proceed with his argument.

[00:01:56] Speaker 02:
Thank you.

[00:02:03] Speaker 04:
The appellant, your honor, asks the court for a narrow ruling in the case to find that the Veterans Court erred as a matter of law when it failed to address the preclusive effect of a 2002 Ninth Circuit judgment in the Nehmer class action suit.

[00:02:19] Speaker 04:
The court here does not need to decide whether Mr. Gabrielli or Ms.

[00:02:23] Speaker 04:
Worthy are Nehmer class members.

[00:02:26] Speaker 04:
The court does not need to find that Ms.

[00:02:28] Speaker 04:
Worthy is even an eligible accrued benefits claimant.

[00:02:32] Speaker 04:
Court merely needs to find that the Veterans Court is precluded from finding that 5121A small a restricts a Nehmer class member from substituting into an accrued benefits claim and remand the matter to the Veterans Court.

[00:02:45] Speaker 03:
Predicate for that argument is that he is a Nehmer class member, isn't it?

[00:02:50] Speaker 03:
And it seems to me, and correct me if this is not the right way to look at this case, but it seems to me that all the Veterans Court had before it

[00:02:59] Speaker 03:
was a question raised by someone who is proceeded in the board as an ordinary service connection claim, whether that ordinary service connection claim gives rise to a right of substitution that is beyond what 5121 big A would permit.

[00:03:19] Speaker 03:
Isn't that the only question that's really before us?

[00:03:22] Speaker 03:
And if not, why?

[00:03:23] Speaker 04:
I don't know that that's the only question.

[00:03:26] Speaker 04:
I think the question is at least that narrow.

[00:03:29] Speaker 04:
uh... and the reason i say that is because i fully expected from the veterans court of decision that said uh... that we can't determine whether substitution is appropriate in other words whether or not miss worthy is an eligible accrued benefits claimant without an adjudication of the question of whether she's in the more class member so to that extent it feels as though this is kind of a little bit of a chicken in the egg scenario here where we have to find that there's a newer class membership person never made the the argument as i understand it that

[00:03:59] Speaker 03:
He never made the argument at the time that he was a Nehmer class member.

[00:04:04] Speaker 03:
He would have otherwise been making an entirely different submission to the VA.

[00:04:08] Speaker 03:
Isn't that right?

[00:04:09] Speaker 04:
That is true.

[00:04:10] Speaker 04:
That argument was never made before the board and would never have been made in the course of proceedings.

[00:04:15] Speaker 04:
The reason is Mr. Gabriele, prior to his passing, was arguing for service connection.

[00:04:22] Speaker 04:
And that is not an issue in terms of his Nehmer class membership does not come up.

[00:04:28] Speaker 04:
And so you get to the downstream elements.

[00:04:30] Speaker 04:
And I think we cited to the Grantham case in our briefs, which talked about it's not appropriate to raise or those issues that are downstream are not right before the adjudication of the upstream service connection issues.

[00:04:41] Speaker 04:
So because service connection had never been adjudicated, there would have been no reason for Mr. Gabrielli to raise his Nehmer class membership.

[00:04:49] Speaker 04:
He was simply arguing before that court that he's entitled to service connection of certain conditions.

[00:04:56] Speaker 04:
based on things that happened in service that were related to his actual Agent Orange exposure.

[00:05:02] Speaker 04:
And so to that extent, that would never have been raised.

[00:05:05] Speaker 04:
And I think that's ultimately our concern, is that there has been no adjudication of that fact of whether or not Ms.

[00:05:13] Speaker 04:
Worthy or Mr. Gabrieli were or are newer class members.

[00:05:18] Speaker 04:
And that adjudication can only happen at the board.

[00:05:22] Speaker 04:
And so we fully expected in this case to see the court do as it had done in other cases and say, we cited to one of these cases a non-precedential decision.

[00:05:30] Speaker 04:
We didn't cite to it for its precedential value, just to illustrate that the court has in the past remanded substitution claims for the board to decide whether or not there is Nehmer class membership.

[00:05:41] Speaker 04:
And that was the Bunch case.

[00:05:43] Speaker 03:
Are you in any way barred from going back to the VA or the board and contending that he was a Nehmer class member?

[00:05:54] Speaker 04:
doesn't seem to me that there's anything preclusive about the decision in this case so far that to that extent i don't think there is anything that precludes us from going back and and continuing to claim uh... that miss worthy has filed a claim for accrued benefits it has been denied by the v a uh... there's nothing in my reading of the newer consent decree which which i'm sure that the via would take issue with my read uh... but there's nothing in the regulations of the statute that forbids her from going back

[00:06:23] Speaker 04:
The problem is that this case has been going on for 17 years.

[00:06:28] Speaker 04:
Mr. Gabrieli filed his claim, I believe, in 2006.

[00:06:30] Speaker 04:
And he got all the way up through a memorandum decision from a court that was fairly direct and scathing of the board's lax review of the facts of that case.

[00:06:43] Speaker 04:
And he might have had his claim adjudicated before he died, but for that lax review, and might have had his service connection.

[00:06:52] Speaker 04:
This kind of brings into question some of these policies that underlie substitution and that has been adjudicated by the Veterans Court and established that there's no need to go back and relitigate all these things.

[00:07:03] Speaker 04:
There's no need to have Ms.

[00:07:04] Speaker 04:
Worthy go back and relitigate service connection to the extent that it's already been litigated.

[00:07:10] Speaker 04:
In other words, right now, had Mr. Gabarelli lived, there would have been a claim at the board with direction from the Veterans Court to provide adequate reasoning in eight various ways

[00:07:20] Speaker 04:
as to why his condition was or was not service-connected.

[00:07:24] Speaker 04:
And Ms.

[00:07:24] Speaker 04:
Worthy should not have to go back and start from the beginning to prove all of that up again when it's already been established in the record.

[00:07:33] Speaker 04:
We think that the Court has jurisdiction over this issue, even though the Secretary has argued it's an application of law to fact.

[00:07:39] Speaker 04:
And we point specifically to Appendix 12 to show that the Court's decision, the Veterans Court decided, as a matter of law,

[00:07:46] Speaker 04:
uh... that that fifty one twenty one a small a uh... allow the v a to hide from its obligations under the newer consent decree and that was not a decision of fact that was a decision of law and the court said that miss worthy does not persuasively argue that the newer consent decree alters fifty one twenty one small a which provides an exhaustive list defining who is eligible to file a claim for accrued benefits and that was a precise issue there was litigated that there was a full and fair opportunity for the v a to litigate

[00:08:17] Speaker 04:
and that was necessary to the judgment before the Ninth Circuit in 2002.

[00:08:22] Speaker 04:
Granted, the context of that decision was different.

[00:08:25] Speaker 04:
In other words, the Ninth Circuit was looking at a different portion of 5121 small a that had to do with a now repealed two-year limitation on accrued benefits.

[00:08:34] Speaker 04:
But the legal issue was identical.

[00:08:36] Speaker 04:
Can the VA hide from its obligations under the Nehmer Consent Decree by looking at the strict language of 5121 small a?

[00:08:44] Speaker 04:
And we argue that that issue has been litigated

[00:08:46] Speaker 04:
It is entitled to repose.

[00:08:48] Speaker 04:
And all that we're asking this court to do is to direct the Veterans Court to give preclusive effect to that decision and address either on its own if it feels it has jurisdiction or to remand to the board to address whether or not Mr. Gabrieli

[00:09:02] Speaker 02:
and or miss worthy army were class members in the same way that that has done in many other cases i'm not sure you can equate the issue you want uh... resolved in this case and one of the ninth circuit resolved as as generally and is easily as your

[00:09:20] Speaker 02:
saying, he would have us read the Ninth Circuit as saying that the consent decree means that none of the limitations of 5121A are applicable in this type of circumstance, even though by your own admission, they were only addressing that two-year limit.

[00:09:42] Speaker 02:
They weren't addressing all the other constraints of the statute, were they?

[00:09:47] Speaker 04:
Well, that goes to the issue.

[00:09:48] Speaker 04:
And I understand the concern, Your Honor, because it does seem to say that if the Ninth Circuit hasn't specifically addressed whether or not a Nehmer class member can substitute, that that's a different issue from whether or not the two-year limitation applies.

[00:10:06] Speaker 04:
And those are different factual contexts for the claim.

[00:10:09] Speaker 04:
And so if this was a case of claim preclusion, then that might be the case where we would be

[00:10:14] Speaker 04:
I would likely agree with the court that it's not the same claim.

[00:10:18] Speaker 04:
But we don't have to have identity of claims when it comes to issue of preclusion.

[00:10:22] Speaker 04:
It nearly has to be substantially or materially the same.

[00:10:26] Speaker 04:
And the public policy that underlies this concept is to ensure that courts are deciding similar issues in similar ways.

[00:10:32] Speaker 03:
But isn't one of the predicates for your collateral estoppel argument that he's the name replacement?

[00:10:40] Speaker 04:
It is a predicate to the determination that Ms.

[00:10:44] Speaker 04:
Worthy can substitute, but it is not a predicate to a court finding in our favor in this case.

[00:10:50] Speaker 04:
In fact, the court, there's a separate case involving Nehmer class membership before this court.

[00:10:57] Speaker 04:
The parties agree it's unrelated.

[00:10:59] Speaker 03:
Explain that last statement to me, because I'm not sure I follow you.

[00:11:02] Speaker 03:
Why isn't it necessary that he, being Nehmer, assume that he had conceded

[00:11:10] Speaker 03:
unequivocally that he's not a Nehmer class member.

[00:11:13] Speaker 03:
How does he win this case?

[00:11:16] Speaker 04:
Could you repeat that first portion?

[00:11:17] Speaker 03:
Assume that he unequivocally disclaimed being a Nehmer class member.

[00:11:22] Speaker 03:
How does he win this case?

[00:11:24] Speaker 03:
Which is another way of asking whether he needs to show that he's a Nehmer class member in order to prevail.

[00:11:29] Speaker 04:
In order to prevail ultimately as a substitute claimant, Ms.

[00:11:33] Speaker 04:
Worthy does need to show that she's a Nehmer class member.

[00:11:36] Speaker 04:
She can't get the opportunity to establish factually that she is a Nehmer class member unless the Veterans Court sends this case back to the board to make that factual determination.

[00:11:45] Speaker 03:
That goes back to the question I asked earlier.

[00:11:47] Speaker 03:
Why can't she just?

[00:11:48] Speaker 03:
I know the time it takes is a long time.

[00:11:52] Speaker 03:
It's burdensome.

[00:11:53] Speaker 03:
But as a technical legal matter, can't she go back and say, OK, I didn't succeed on my service connection claim.

[00:12:03] Speaker 03:
But he's a Nehmer class member.

[00:12:05] Speaker 03:
I want you to pay benefits consistent with the Nehmer class order.

[00:12:11] Speaker 04:
I would agree that she can go back.

[00:12:15] Speaker 04:
I think my concern is that that kind of creates the sense that it doesn't prejudice her to have the court's denial in this case, that she's not prejudiced by that.

[00:12:23] Speaker 03:
But my question is, why is it setting aside prejudice?

[00:12:28] Speaker 03:
I acknowledge what you're saying about the time delay.

[00:12:33] Speaker 03:
do anything other than that in the current posture of not having established her Nehmer class status.

[00:12:43] Speaker 03:
I'm just not seeing a route to getting to relief for her without crossing through the Nehmer class question.

[00:12:50] Speaker 04:
It's a question of which portion of the agency would adjudicate that question.

[00:12:55] Speaker 04:
if she was to go right directly to the VA and file a claim saying, I'm a NEMA class member based on the theories that are outlined in this brief and in other cases, it would be adjudicated by the VA, appealed to the BVA, and ultimately determined by the BVA as a matter of finality before it could be appealed.

[00:13:11] Speaker 04:
Right now, the case is postured for exactly that.

[00:13:14] Speaker 04:
And so while I agree that we could do that and probably would do that, should there be an outcome that's different from the one we're asking,

[00:13:23] Speaker 04:
The question here is ultimately one of efficiency.

[00:13:25] Speaker 04:
We're asking the VA to expend resources to go and re-adjudicate something that it can adjudicate right now at the board if the Veterans Court were to remand and determine whether or not Ms.

[00:13:36] Speaker 04:
Worthy is or is not a Nehmer class member.

[00:13:40] Speaker 04:
And so I understand the concern.

[00:13:42] Speaker 04:
And I don't necessarily think that we are foreclosed from following that path.

[00:13:46] Speaker 04:
We're just here asking the court for a path that we believe is much more fair and just, which is to allow

[00:13:53] Speaker 04:
a Ninth Circuit decision to have preclusive effect so that in this narrow situation, 5121A, small a, cannot limit the application of the Nehmer Consent Decree.

[00:14:05] Speaker 01:
Thank you, counsel.

[00:14:07] Speaker 01:
I'll give you two minutes for the panel.

[00:14:09] Speaker 04:
Thank you.

[00:14:10] Speaker 01:
We'll hear from Mr. Kepora.

[00:14:30] Speaker 00:
Good morning, Your Honors, and may it please the court.

[00:14:32] Speaker 00:
This appeal should be dismissed because this court lacks jurisdiction over the Veterans Court's application of law to undisputed fact.

[00:14:41] Speaker 00:
Specifically, the Veterans Court found that Ms.

[00:14:44] Speaker 00:
Worthy was not an appropriate accrued benefits beneficiary under 5121A because she is not a dependent child of the deceased veteran, Mr. Gabrielli.

[00:14:59] Speaker 00:
That's the limit of what the Veterans Court found.

[00:15:02] Speaker 00:
Now, turning to this issue of the Namer Consent Decree, I think it's important to define at the outset that the Namer Decree, for lack of a better way of describing it, creates a separate track within the VA benefits process as opposed to an ordinary benefits claim, which is what we have here.

[00:15:26] Speaker 00:
The purpose of the Namer Consent Decree

[00:15:29] Speaker 00:
initially when it was signed in 1991 and continuing forward to this day, is to have VA go back and re-adjudicate claims that were previously denied before the passage of the Agent Orange Act or any of its amendments.

[00:15:45] Speaker 00:
So in other words, it's designed to allow veterans who had denied claims

[00:15:52] Speaker 00:
to get the benefit of the act if their claim was denied before their relevant disease would have been afforded the presumption that's in the Agent Orange Act.

[00:16:05] Speaker 00:
Mr. Gabrielli's claim was not a previously denied claim.

[00:16:10] Speaker 00:
While it admittedly has been going on for some time, his initial claim was filed in 2006.

[00:16:18] Speaker 00:
And there were subsequent claims after that, but the process was still ongoing.

[00:16:24] Speaker 00:
So he does not fit, setting aside the geographic issue, which I can get to in a moment, he does not fit the Nehmer class because he did not have a previously denied claim.

[00:16:36] Speaker 03:
He now has a denied claim.

[00:16:38] Speaker 03:
Why is he now not qualified?

[00:16:40] Speaker 03:
Why does she not qualify?

[00:16:44] Speaker 00:
Well, Your Honor, because again, the purpose of the Nehmer decree was to go back and afford the benefit of the presumption in the Agent Orange Act.

[00:16:56] Speaker 00:
to a claim that was already denied, since the Agent Orange Act.

[00:17:00] Speaker 03:
At the time, prior to the decision in Nehmer or prior to what?

[00:17:05] Speaker 03:
Yes.

[00:17:05] Speaker 03:
If somebody came up today and said, I'm entitled to relief, and because many years ago, I was exposed to Agent Orange in Vietnam, I believe, and was denied relief.

[00:17:23] Speaker 03:
Assume that.

[00:17:25] Speaker 03:
Could that person not say, OK, I am now a Nehmer class member, and I'm entitled to relief under Nehmer?

[00:17:32] Speaker 00:
Well, just to clarify, Your Honor, when you say someone now comes forward, in other words, we're talking about somebody who's, say, filing a claim in 2015, let's say.

[00:17:42] Speaker 03:
OK.

[00:17:42] Speaker 03:
File a claim.

[00:17:42] Speaker 03:
The claim is denied.

[00:17:44] Speaker 03:
Right.

[00:17:44] Speaker 03:
And they come back, and they go to the VA, and they say, I am a person who has had a claim denied.

[00:17:49] Speaker 03:
I was in Vietnam.

[00:17:50] Speaker 03:
I was exposed to Agent Orange.

[00:17:52] Speaker 03:
I am now a member of the Nehmer class.

[00:17:54] Speaker 03:
Why isn't that correct?

[00:17:56] Speaker 00:
Because, Your Honor, all that the Nehmer class does is it obligates VA to go back and apply the Agent Orange Act to a previously denied claim.

[00:18:06] Speaker 00:
In the scenario you described, when the veteran would have come forward to make their claim, the benefits process would have applied the Agent Orange Act in the regular course.

[00:18:18] Speaker 03:
Even though in his particular case, the 2015 claimant,

[00:18:22] Speaker 03:
the VA made a mistake and did not apply the Agent Orange Act correctly.

[00:18:30] Speaker 03:
Really, are you saying, in other words, that NEMA applies only to veterans whose claims were denied prior to the enactment of the Agent Orange Statute?

[00:18:41] Speaker 00:
The Agent Orange Statute or any of its subsequent amendments.

[00:18:44] Speaker 00:
Over the years, additional diseases were added.

[00:18:46] Speaker 00:
So every time a disease was added, the VA would go back.

[00:18:50] Speaker 03:
So if you were not eligible

[00:18:52] Speaker 03:
Well, go ahead.

[00:18:55] Speaker 00:
Well, just to clarify, in that particular instance, Your Honor, if a veteran came forward and said, I had a disease that would be presumptively service-connected under 1116, the Agent Orange Act, and the VA denied that claim, then their route of appeal would be in the ordinary course.

[00:19:16] Speaker 00:
They would appeal to the BVA and then to the Veterans Court, if necessary, and onward.

[00:19:22] Speaker 00:
But they would be applying that statute.

[00:19:24] Speaker 00:
All Nehmer does is it obligates VA to go back to a claim where Agent Orange was not applied.

[00:19:33] Speaker 00:
If it was applied improperly, if 1116 was applied improperly, then that's a question to bring up through the veteran's benefits process.

[00:19:43] Speaker 03:
But in that case, if that's the only route open to such a veteran, then the substitution rights would be narrower.

[00:19:52] Speaker 03:
not so much substitution, but beneficiary class would be smaller than the beneficiary class under Neimann, correct?

[00:20:00] Speaker 00:
The beneficiary class would be limited by 5121, which is what we have here, yes.

[00:20:07] Speaker 00:
And that kind of then brings me to this discussion about this Ninth Circuit decision and this question of issue preclusion.

[00:20:17] Speaker 00:
I think, for the most part, I agree with what counsel has said, except that in admitting that the Ninth Circuit was discussing a different part of the statute, I think we've sort of established that there can be no issue preclusion here.

[00:20:34] Speaker 00:
Furthermore, I'd like to clarify something.

[00:20:37] Speaker 00:
The Ninth Circuit did not hold that VA was prevented from saying that 5121 limited the name or decree.

[00:20:51] Speaker 00:
In fact, what the Ninth Circuit held was that at the time, there was a two-year retroactivity limitation in 5121 in that provision.

[00:21:01] Speaker 00:
That no longer exists.

[00:21:03] Speaker 00:
But at that time, it did.

[00:21:05] Speaker 00:
There was a two-year limitation.

[00:21:07] Speaker 00:
What the Ninth Circuit held was that in signing the Namer Decree, the secretary had gone beyond 5121 and used his equitable authority under 38 USC 503 to go beyond that retroactivity provision.

[00:21:25] Speaker 00:
So the court did not say that 5121 can't limit the Namer Decree.

[00:21:31] Speaker 00:
It said the secretary expressly in the Namer Decree had gone beyond it

[00:21:37] Speaker 00:
in a different statute.

[00:21:38] Speaker 00:
And I think that's important here because what the appellant is asking this court to do is actually the reverse.

[00:21:48] Speaker 00:
They're asking the court to say that the Namer Decree, in fact, expands 5121 rather than what's actually being argued, which is somehow that 5121 can't limit the Namer Decree.

[00:22:04] Speaker 00:
So there's a number of different problems with

[00:22:07] Speaker 00:
this issue preclusion argument and as we discussed in our briefing, that's why we feel that this is simply not a question of issue preclusion.

[00:22:19] Speaker 02:
Are we evaluating whether the issue here and the issue in the Ninth Circuit are identical or just materially or substantially the same?

[00:22:30] Speaker 00:
Well, I think under either standard, Your Honor, there's a large difference, to be quite frank, under either standard.

[00:22:39] Speaker 00:
The questions being presented are very, very different on any number of levels.

[00:22:45] Speaker 00:
Like I said, factually, they're asking for this.

[00:22:48] Speaker 00:
The Ninth Circuit decision was discussing this issue about retroactivity, but

[00:22:54] Speaker 00:
The argument presented here is vastly different from what was being raised in the Ninth Circuit.

[00:23:03] Speaker 00:
So I think in either standard, it fails.

[00:23:06] Speaker 02:
Did the Veterans Court consider the issue of preclusion question itself?

[00:23:12] Speaker 00:
No, it didn't, Your Honor, because, again, this issue about Nehmer wasn't raised until the substitution motion.

[00:23:20] Speaker 00:
And the Veterans Court, properly, we believe,

[00:23:23] Speaker 00:
looked at the question of whether or not Ms.

[00:23:27] Speaker 00:
Worthy was eligible to substitute under 5121 big A. And Nehmer simply has no impact on that, as I said, because it's the separate track that only requires VA to retroactively go back.

[00:23:43] Speaker 02:
I do want to hear you on the rule 43A, federal appellate procedure 43A, what we now have essentially I take as a motion to substitute, which I understand to be solely for the purpose of Ms.

[00:23:58] Speaker 02:
Worthy being an appellate in our court.

[00:24:01] Speaker 02:
which I would think would be governed by different standards than the motion to substitute that the Veterans Court had.

[00:24:08] Speaker 02:
It's just really whether we have jurisdiction to do what we're doing, review the briefs, hear the argument and make a decision.

[00:24:16] Speaker 02:
Are you prepared to say what the government's position is on that limited motion?

[00:24:22] Speaker 00:
I confess, Your Honor, without having prepared for that question, I can't speak to the substance of it.

[00:24:30] Speaker 00:
What I would say is that we would oppose it because, again, we're making a jurisdictional argument here as to... It is a separate question.

[00:24:44] Speaker 00:
It's a separate question.

[00:24:45] Speaker 00:
I understand that.

[00:24:47] Speaker 03:
I guess the question really putting... I'd really just...

[00:24:51] Speaker 03:
following Judge Stark's characterization.

[00:24:54] Speaker 03:
But the question to me comes down to whether she is entitled to be substituted for purposes of making the argument she wants to make, whether it's right or wrong.

[00:25:07] Speaker 03:
And your position would seem to suggest that she does not have the right to come to this court to make that argument, even unless she can demonstrate before she makes the motion that she wins her case.

[00:25:21] Speaker 03:
That does not sound intuitively attractive.

[00:25:25] Speaker 00:
Well, again, without having prepared on the standards of the rule and looking at prior case law on it, I guess a couple of things I'd like to point out there is there would be an issue with Ms.

[00:25:39] Speaker 00:
Worthy coming to this court if she did not have a prior decision below.

[00:25:49] Speaker 00:
is one thing that comes to mind that without that substitution at the Veterans Court, for her to raise it independently on her own, I think raises an issue.

[00:26:06] Speaker 00:
But again, I apologize without having prepared the substance of it.

[00:26:11] Speaker 00:
I wish I could give you a more fulsome answer.

[00:26:14] Speaker 02:
It is fair to say, though, that the government did not move to dismiss this appeal for lack of an appellant, correct?

[00:26:20] Speaker 00:
That is correct, Your Honor.

[00:26:22] Speaker 02:
And do you want to help us with that, how we could say there is a proper appellant?

[00:26:28] Speaker 02:
I don't know if you thought it through from that perspective, that maybe a motion to substitute isn't necessary.

[00:26:34] Speaker 02:
But then I just don't know who the appellant is.

[00:26:36] Speaker 00:
Well, again, I think there was a ... We were looking at it primarily from the substitution question at the Veterans Court, so I think there ... Again, we have this decision that's on appeal, but again, the Veterans Court was dismissing it because there was not a proper substitute, so it's almost like we're going a layer above that.

[00:27:03] Speaker 03:
We are, but she wants to demonstrate that the Veterans Court made a mistake.

[00:27:08] Speaker 00:
Right.

[00:27:08] Speaker 03:
And what you're saying, if you oppose, is that she's not entitled to argue to us that the Veterans Court made a mistake.

[00:27:24] Speaker 00:
Yes.

[00:27:25] Speaker 00:
No, I understand your point.

[00:27:27] Speaker 00:
I guess what I'm thinking through is, and I'd have to look back, and looking at the Veterans Court's decision

[00:27:39] Speaker 00:
as a procedural matter without the Veterans Court substituting her, and the court found then that Mr. Gabrielli's claim ended when he passed away, then I'd have to say yes.

[00:27:59] Speaker 00:
Because Ms.

[00:28:00] Speaker 00:
Worthy would not be on her own standing, rather than as a substitute claimant,

[00:28:09] Speaker 00:
would not have a claim before this court, because there would be no decision to which she was a party below.

[00:28:16] Speaker 00:
So I think that would be an issue that would have to be addressed first.

[00:28:23] Speaker 02:
I'd be happy if this is not a question on that topic.

[00:28:25] Speaker 02:
And you may have already addressed it, but does Ms.

[00:28:29] Speaker 02:
Niemer have another avenue by which she could press for a claim, or at least potentially press it?

[00:28:35] Speaker 00:
I think what counsel described is in fact correct.

[00:28:42] Speaker 00:
If Ms.

[00:28:42] Speaker 00:
Worthy had raised this at the VA and had been denied, then she would be able to avail herself of the appellate process through the board.

[00:28:55] Speaker 02:
Can she still do that now?

[00:28:56] Speaker 00:
Yes.

[00:28:59] Speaker 00:
You know, sort of to that point, I think there's also, you know, we mentioned in the statement of related cases that, you know, before this court, it was submitted last month, there is this Constantine case that does address this issue.

[00:29:14] Speaker 00:
And the Veterans Court found that it did not, or it chose not to exercise jurisdiction in that case over the question of the scope of the Namer Decree.

[00:29:29] Speaker 00:
I see my time has expired.

[00:29:30] Speaker 00:
If there's no further questions, we would respectfully request that the court dismiss this appeal or in the alternative, affirm the finding of the Veterans Court.

[00:29:39] Speaker 00:
Thank you.

[00:29:40] Speaker 01:
Thank you, counsel.

[00:29:43] Speaker 01:
Mr. Attick, two minutes.

[00:29:49] Speaker 04:
Two brief points, possibly a third.

[00:29:53] Speaker 04:
Counsel made the argument that Nehmer

[00:29:57] Speaker 04:
does not apply in this case to Mr. Gabriele because he does not have a previously denied claim.

[00:30:03] Speaker 04:
That argument did not appear in their response.

[00:30:05] Speaker 04:
That does not sound correct to me, but I'm not prepared to defend that because it wasn't raised in their response.

[00:30:12] Speaker 04:
And so I don't know how to respond to that other than to say that I don't believe that that's a basis for denying relief here at this court.

[00:30:21] Speaker 04:
The second piece that

[00:30:26] Speaker 04:
Your Honor, you asked counsel if the Veterans Court considered issue of preclusion, and my colleague answered that correctly, that no, the court did not.

[00:30:38] Speaker 04:
But for a different reason.

[00:30:40] Speaker 04:
The court did not consider that issue, counsel, my colleague says, because Nehmer wasn't raised before the board.

[00:30:50] Speaker 04:
We've already addressed that piece of it in our recent hearing argument.

[00:30:52] Speaker 04:
The piece that's concerning to me is that we did raise issue preclusion to the Veterans Court in the reply.

[00:30:59] Speaker 04:
In the motion to substitute, we asked the court to substitute based on her Nehmer class membership, thinking that we were going to get a remand to have that adjudicated by the board.

[00:31:08] Speaker 04:
In the response, the Secretary first raised this issue that 5121 small a

[00:31:14] Speaker 04:
delimited the application of Nehmer to this particular case.

[00:31:19] Speaker 04:
And in our reply, we pointed out an appendix, and that's in appendix at 322.

[00:31:23] Speaker 04:
We point out that there is this Nehmer decision from the Ninth Circuit in 2002 that precluded review and was entitled to repose.

[00:31:32] Speaker 04:
And even after that, the Veterans Court still did not resolve the issue.

[00:31:36] Speaker 04:
And so that's

[00:31:37] Speaker 04:
underlying all of this that's our primary concern that you're asking us at this point to resolve the issue of the question correct not to send it back to the veterans court to do so i will take a win anyway that the court wants to give it to me your honor not to be flippant at all but if the court does feel that there is a procedural irregularity that prevents them from from addressing this that i think that that that could be a basis to remand it to the veterans court to enable them to specifically decide they're in the best position i think uh... at this point

[00:32:06] Speaker 04:
to determine whether they need additional facts to make that decision in terms of substitution or whether there is substantial and material similarity between this case and the Ninth Circuit case that the court could later review if they found that there was not.

[00:32:21] Speaker 04:
We submit our argument as the court to find on either of those bases and I will submit a motion to amend and to admit Ms.

[00:32:34] Speaker 04:
Worthy as the appellant here within the next 24 hours.

[00:32:38] Speaker 01:
Thank you, counsel.

[00:32:39] Speaker 01:
We appreciate both arguments and the cases submitted.