[00:00:00] Speaker 01:
The next case is the related case 23-11-35 Lindgren v. McDonough and again Ms.

[00:00:06] Speaker 01:
McKenna.

[00:00:08] Speaker 01:
So the difference here is that Mr. Lindgren did seek interim relief from the board.

[00:00:16] Speaker 03:
Exactly, Your Honors.

[00:00:17] Speaker 03:
That's the distinction here.

[00:00:18] Speaker 03:
And he did so directly in response to the court's guidance in love.

[00:00:22] Speaker 03:
And what we saw, again, and not to rehash things that we've discussed in love, was that that distinction was meaningless.

[00:00:27] Speaker 03:
The Veterans Court still reached the decision that it didn't have jurisdiction.

[00:00:31] Speaker 03:
And the error in the Veterans Court's decision there is siphoning out the petition from the AOJ.

[00:00:36] Speaker 01:
The Veterans Court said, you didn't ask us to force a decision on that question by the board, right?

[00:00:43] Speaker 03:
They did, Your Honor, and in reaching that answer, they separated the AOJ demand from the entirety of the petition.

[00:00:51] Speaker 01:
So did the petition ask for interim relief to force the board to decide the question?

[00:00:57] Speaker 03:
I would point, Your Honor, to the same language that I mentioned in the love appeal of that, the fourth request for relief that would request any relief that would aid jurisdiction.

[00:01:07] Speaker 03:
And to Your Honor's points, if compelling an order from the board would aid jurisdiction, then it would be within what the petition sought here.

[00:01:15] Speaker 03:
And the Veterans Court, the way they addressed his petition was basically taking the AOJ demand separately, dismissing the petition because of everything that happened in love, and then looking only at the AOJ demand.

[00:01:26] Speaker 03:
But his petition relies on the AOJ demand as a whole of the petition.

[00:01:31] Speaker 03:
And so the Veterans Court should have considered the petition in light of the AOJ demand and not separate from it.

[00:01:39] Speaker 02:
Mr. Lindgren, following what he perceived as the advice from the Veterans Court in love, he went to the RO, correct?

[00:01:50] Speaker 03:
That's correct.

[00:01:50] Speaker 03:
He went to the AOJ, and instead of the AOJ reaching a decision on that, the board said, we're actually going to decide that.

[00:02:01] Speaker 03:
So they precluded the AOJ from reaching a decision, and they withheld a decision until they reached the merits of his appeal, which at this point hasn't even been assigned to a veteran's law judge.

[00:02:10] Speaker 02:
So we're still in a waiting period of... Well, let me ask you, assume for the moment the AOJ had decided the issue.

[00:02:18] Speaker 02:
adverse to Mr. Lindgren.

[00:02:20] Speaker 02:
Okay.

[00:02:22] Speaker 02:
He then would have had to petition the board, correct?

[00:02:27] Speaker 03:
Yes.

[00:02:28] Speaker 02:
Okay.

[00:02:28] Speaker 02:
So in effect, it's gotten to the board quicker than it would have, hasn't it?

[00:02:35] Speaker 02:
That was the only thing I didn't understand in the briefing.

[00:02:37] Speaker 02:
There seemed to be some complaint about the fact that the board took the case from the AOJ.

[00:02:45] Speaker 02:
And I would think that

[00:02:47] Speaker 02:
That moves things faster than if you wait for an AOJ decision, and then it goes up to the board.

[00:02:54] Speaker 02:
Do you understand what I'm saying?

[00:02:55] Speaker 03:
I do, Your Honor.

[00:02:56] Speaker 03:
And two responses.

[00:02:57] Speaker 03:
First, that assumes that the AOJ was going to rule against Mr. Lindgren.

[00:03:01] Speaker 03:
And the AOJ very well could have ruled in his favor, and so the board has now precluded that from happening.

[00:03:06] Speaker 03:
And the second response is that the board has said it won't reach a decision until the merits are decided.

[00:03:11] Speaker 03:
So they've prevented a decision from the agency and withheld a decision until they reached the merits.

[00:03:16] Speaker 02:
But again, couldn't there be the avenue of relief here, as was suggested in your discussion with Judge Dyke in the earlier case, of seeking an order from the Veterans Court directing the board to untie Mr. Lindgren's issue from the ultimate merits?

[00:03:40] Speaker 03:
And we don't dispute that if this court can provide that relief that we think it's within the petition that the veterans have raised, we certainly would seek broader relief than that.

[00:03:54] Speaker 03:
But if that's all that can be raised.

[00:03:55] Speaker 02:
Couldn't you go back now?

[00:03:57] Speaker 02:
Tomorrow?

[00:03:58] Speaker 02:
Well, next weekend.

[00:03:59] Speaker 02:
But next week?

[00:04:00] Speaker 02:
Theoretically, couldn't you go back

[00:04:03] Speaker 02:
To the agency?

[00:04:04] Speaker 02:
To the, to the veterans court and say, direct the board to do this.

[00:04:12] Speaker 02:
To rule on Mr. Lindgren's claim with respect to payments pending resolution of the merits.

[00:04:21] Speaker 03:
Ultimately, that's just further delaying the relief here.

[00:04:24] Speaker 03:
We submit that the petition has already been.

[00:04:27] Speaker 01:
Why is that further delaying the relief?

[00:04:29] Speaker 03:
Because there is already a petition pending before the Veterans Court that seeks the same relief that we're talking, a broader relief that we're talking about.

[00:04:37] Speaker 03:
But the relief of getting the Veterans Court to compel a decision from the board is encompassed within that petition in that paragraph beginning with fourth.

[00:04:45] Speaker 01:
Where did you argue in your blue brief

[00:04:47] Speaker 01:
that the Veterans Court was wrong in reading your petition as not asking to compel a decision by the board.

[00:04:56] Speaker 03:
What we argued, and maybe not clearly enough, Your Honor, is that that is not the sole decision that we're asking for.

[00:05:03] Speaker 01:
We certainly think- Where did you say they misconstrued our mandamus petition?

[00:05:09] Speaker 01:
We were asking the Veterans Court to order a ruling on the interim relief issue.

[00:05:16] Speaker 02:
you're right doesn't it doesn't say that because we're not that's not the relief that we're seeking it's we're seeking broader relief than that so if that's the only relief that your honors find applicable then we would accept that you know i would i would think uh... you know mandamus is a very specific unusual kind of relief cases seem to teach that and and correct me if i'm wrong but that would suggest that you have to be very specific

[00:05:43] Speaker 02:
in terms of what you're asking for, so that the court can look at it and say, OK, there's a fair point.

[00:05:49] Speaker 02:
They're entitled to it.

[00:05:50] Speaker 02:
Or no, they're not.

[00:05:52] Speaker 02:
It just can't be a broad kind of thing.

[00:05:54] Speaker 03:
Yes, Your Honor.

[00:05:55] Speaker 03:
And we have been specific in seeking the specific relief of compelling unlawfully withheld agency action.

[00:06:03] Speaker 03:
the broader request under that is only to seek relief that would aid jurisdiction of that question.

[00:06:09] Speaker 03:
If the only relief that your owners find applicable here is something that would aid jurisdiction by compelling the board to reach a decision on the implementation issue, then we would submit that within what is requested, even though the request for relief is broader than that.

[00:06:28] Speaker 01:
I guess the suggestion is that you would be better off in getting prompt resolution of these issues which you are interested in, which the government should be interested in, which the system should be interested in if you follow proper procedures to get there.

[00:06:45] Speaker 01:
And here we have an appeal which on its face seems not to be the correct procedure for bringing this issue up

[00:06:54] Speaker 01:
And as a result of that, there's been a delay of a year, maybe more than a year, in the resolution of this issue.

[00:07:03] Speaker 01:
That's the difficulty.

[00:07:05] Speaker 03:
I understand, Your Honor.

[00:07:06] Speaker 03:
And we would submit that that difficulty is not born solely out of the veterans' actions here, but also born out of the government's actions in intercepting the demand filed at the agency level seeking a decision on this issue.

[00:07:22] Speaker 01:
and when the better they are you to the to the board that there shouldn't be a decision on interim relief until a final decision could you repeat a misunderstanding the government did the veterans administration argued before the board that there should be no decision on the interim relief question until there was a final decision on the merits of the claim

[00:07:46] Speaker 03:
That decision hasn't been presented to the board, so there hasn't been a way for them to argue it.

[00:07:51] Speaker 03:
Instead, they've argued in their reply briefing to the Veterans Court that the board will not address the issue until it addresses the merits.

[00:08:01] Speaker 02:
When you're referring Ms.

[00:08:03] Speaker 02:
Vaughan to the reply briefing, I want to see if I understand.

[00:08:07] Speaker 02:
Are you referring to the briefing that the VA submitted in response to the Veterans Courts July 21, 2021 order?

[00:08:21] Speaker 02:
Where they answered the question about Mr. Lindgren's petition going first to the AOJ, but then in your words being shunted over or hijacked or whatever ever to the board.

[00:08:36] Speaker 02:
Is that correct?

[00:08:37] Speaker 02:
And they said why?

[00:08:37] Speaker 03:
Yes, it's the reply after the court lifted the stay based on love.

[00:08:42] Speaker 03:
And that's the first time that Mr. Lindgren also learned that the board would be addressing it instead of the agency.

[00:08:50] Speaker 03:
And so we would submit that there is a clear block here.

[00:08:52] Speaker 03:
The Veterans Court is preventing a decision.

[00:08:54] Speaker 03:
And this claim for relief can't be addressed without mandamus authority, similar to the transfer cases and similar to what the Supreme Court addressed in FTC.

[00:09:04] Speaker 03:
And my remaining arguments address the alternative avenues for relief, but I'm not going to get into them further given our earlier discussions today.

[00:09:10] Speaker 03:
So unless Your Honors have

[00:09:12] Speaker 03:
further questions, I'll see the rest of my time to rebuttal.

[00:09:15] Speaker 01:
Okay, thank you.

[00:09:16] Speaker 03:
Thank you.

[00:09:16] Speaker 01:
Ms.

[00:09:16] Speaker 01:
Bob?

[00:09:24] Speaker 01:
The government argued that the board should not reach a decision on the interim relief question until it ruled on the final claim.

[00:09:36] Speaker 00:
John, are you asking whether the VA's argument to the Veterans Court was that the board should not?

[00:09:42] Speaker 00:
I don't believe so, I think the point that the... No, I hope not.

[00:09:47] Speaker 00:
I think the point that the secretary was trying to make to the Veterans Court was the statutory and regulatory scheme is not ambiguous here.

[00:09:59] Speaker 00:
The statute is clear and the regulation is also clear and specifically discusses payment in 38 CFR 3.501A.

[00:10:08] Speaker 00:
It says when the effective date is, specifically for reductions and discontinuances, and then it says that the reduced rate shall be payable the next day.

[00:10:16] Speaker 00:
Again, both the statutory and the regulatory sources are law.

[00:10:21] Speaker 00:
The VA is bound by that.

[00:10:23] Speaker 00:
The secretary was arguing that point, which is really a merits point.

[00:10:28] Speaker 00:
That's how, when the board is assessing these issues,

[00:10:32] Speaker 00:
They're applying their regulations.

[00:10:34] Speaker 00:
They're applying the statute.

[00:10:35] Speaker 00:
So I think those are the merits points the secretary was making.

[00:10:40] Speaker 00:
But as we've been discussing, the real issue here is the procedural issue, because this is a mandamus petition.

[00:10:46] Speaker 00:
And the question is, did the Veterans Court correctly hold it didn't have jurisdiction over the substantive relief and then deny on the procedural relief because there was no request for it.

[00:10:55] Speaker 00:
And on the procedural brief, not only in the blue brief, there was never a request to the Veterans Court.

[00:11:02] Speaker 00:
to order procedural relief of the VA.

[00:11:06] Speaker 00:
But at page 34 of the opening brief here, Mr. Lindgren quotes the Veterans Court statement of that.

[00:11:13] Speaker 00:
The court recognized this, explaining that in his petition, the petitioner did not ask the court to compel VA to respond to his November 2021 request.

[00:11:22] Speaker 00:
That was cited in the opening brief, not rebutted as being error in any way, not second guess.

[00:11:29] Speaker 00:
The mandamus is special relief.

[00:11:31] Speaker 00:
The petitioner has to say what they want.

[00:11:34] Speaker 00:
And in this case, it's always been clear.

[00:11:36] Speaker 00:
What they want is for the Veterans Court to decide the substantive issue and to order the money payments.

[00:11:42] Speaker 00:
But that's an issue arising under 501.

[00:11:44] Speaker 00:
Congress has delegated the VA to make decisions.

[00:11:48] Speaker 02:
Excuse me for interrupting you.

[00:11:51] Speaker 02:
But in looking at this, when I was discussing a little bit with Ms.

[00:11:58] Speaker 02:
McKenna, this response to the July 21 order, I guess the last sentence of this before the wherefore clause says, the November 21 arguments, those are the arguments that were involved in the Lindgren petition to the AOJ.

[00:12:16] Speaker 00:
Can I ask about the appendix page, Roy?

[00:12:20] Speaker 02:
I'm not sure if all of it was in the appendix.

[00:12:23] Speaker 02:
I had to go online and get it.

[00:12:25] Speaker 00:
Oh, I see.

[00:12:26] Speaker 02:
OK.

[00:12:27] Speaker 02:
It's the November, it's the VA's response.

[00:12:32] Speaker 00:
Yes, OK.

[00:12:32] Speaker 02:
OK?

[00:12:33] Speaker 02:
And I am quoting, I'm reading accurately, it says, the November 21 arguments, which are the arguments that were made to the AOJ, correct?

[00:12:43] Speaker 02:
will be considered by the board in the context of his meeting Mr. Lindgren's pending appeal of the June 2021 rating decision.

[00:12:55] Speaker 02:
So what you're saying is, and it would seem that at that point there was dissatisfaction with that, the course it would have been for some kind of a petition to

[00:13:11] Speaker 02:
get the board to separate out from the merits of the reduction, the November 2021 action.

[00:13:22] Speaker 02:
Is that correct?

[00:13:23] Speaker 00:
Yes.

[00:13:23] Speaker 00:
I think that's right.

[00:13:24] Speaker 00:
And I think that's where we landed.

[00:13:25] Speaker 02:
That seems to be the substance of the discussion that's been going on with Judge Dyke.

[00:13:30] Speaker 00:
Exactly.

[00:13:30] Speaker 00:
I think that's where we landed in the last argument that a petition

[00:13:35] Speaker 00:
that there could be jurisdiction for a petition there.

[00:13:37] Speaker 00:
Now, I don't think we necessarily agree that there is a clear and indisputable right to how to separate it, given what I discussed before about the regulation and the payment being linked with the effective date.

[00:13:48] Speaker 00:
But we agree.

[00:13:49] Speaker 01:
You're using two things.

[00:13:51] Speaker 01:
One, is there a right to a decision on it?

[00:13:53] Speaker 01:
Exactly.

[00:13:54] Speaker 01:
The second question is, what should the decision be?

[00:13:56] Speaker 01:
Certainly, they had a right to a decision on the interim relief question.

[00:14:01] Speaker 01:
It has to be that the board was wrong in saying, oh well, we'll postpone that until we decide the merits.

[00:14:08] Speaker 00:
Well, again, Your Honor, I think where I can agree with you is that the mandamus petition would be available to ask for that.

[00:14:16] Speaker 00:
And I wouldn't want to prejudge the government's position on the clear and indisputable right, even on the interim piece.

[00:14:22] Speaker 00:
But I agree that the mandamus petition would be procedural relief if the claim is there's a block as to interim relief

[00:14:29] Speaker 00:
If the board decision will not issue us the interim relief, that's an inappropriate block in the statutory appellate process, then that would be a mandamus issue.

[00:14:39] Speaker 00:
The issue presented here is not a mandamus issue, because it's asking to demand the VA to pay money.

[00:14:46] Speaker 02:
Respond as a housekeeping point.

[00:14:48] Speaker 02:
What I was reading from a minute ago was in Appendix 230.

[00:14:52] Speaker 00:
Yes.

[00:14:52] Speaker 00:
I tracked it down eventually.

[00:14:54] Speaker 00:
Thank you, Your Honor.

[00:14:54] Speaker 02:
I'm sorry.

[00:14:55] Speaker 02:
I should have noted that.

[00:14:57] Speaker 00:
No apology needed at all, Your Honor.

[00:15:01] Speaker 01:
Anything more?

[00:15:05] Speaker 00:
No, Your Honor.

[00:15:06] Speaker 01:
Okay, thank you.

[00:15:10] Speaker 01:
Further, Ms.

[00:15:11] Speaker 01:
McKenna?

[00:15:16] Speaker 03:
Just briefly, I'm not going to rehash the arguments.

[00:15:21] Speaker 03:
I just that this court doesn't need to reach the merits.

[00:15:24] Speaker 03:
We're not asking this court to do so in the first instance.

[00:15:27] Speaker 03:
And I would like to thank your honors for the opportunity to provide oral argument today.

[00:15:32] Speaker 01:
Okay.

[00:15:32] Speaker 01:
Thank you.

[00:15:32] Speaker 01:
Thank both counsels.