[00:00:00] Speaker 03:
Her next case is number 22, 2285, Love versus McDonough.

[00:00:06] Speaker 03:
Okay, Ms.

[00:00:06] Speaker 03:
McKenna.

[00:00:08] Speaker 03:
So we have these two cases, Love and Lindgren, which are quite similar, and both counsel are the same in the two cases.

[00:00:19] Speaker 03:
So I'm assuming that you're not going to duplicate your argument in Lindgren.

[00:00:28] Speaker 03:
except you confine yourself and linger into the different feature of that case and not repeat everything.

[00:00:36] Speaker 01:
Yes, Your Honor.

[00:00:36] Speaker 03:
That's exactly correct.

[00:00:37] Speaker 03:
Go ahead.

[00:00:38] Speaker 01:
Good morning, Your Honor.

[00:00:39] Speaker 01:
Submit, please, the court.

[00:00:40] Speaker 01:
My name is Kristi McKenna, and I'm privileged to be here today representing three veterans.

[00:00:45] Speaker 01:
This case is about the Secretary prematurely implementing non-final agency action and in doing so, subjecting each veteran to a here and now injury that no court will ever address absentment day, Mr. Lee.

[00:00:59] Speaker 03:
Could you help me understand what your position is on the entitlement to interim payments?

[00:01:07] Speaker 03:
Is the idea that if the veteran loses, the veteran nonetheless would keep the interim payments that you say should be received?

[00:01:17] Speaker 03:
Or is the notion that the interim payments are tentative and would have to be given back if the veteran lost?

[00:01:24] Speaker 01:
Yes, Your Honor, and to briefly address that question.

[00:01:29] Speaker 01:
First, we're not asking this court to reach the merits on that issue.

[00:01:32] Speaker 03:
No, no.

[00:01:33] Speaker 03:
What's the answer to my question?

[00:01:35] Speaker 01:
Yes, the answer is that it would be tentative.

[00:01:39] Speaker 01:
The government is able to seek to recover those overpayments if it's created.

[00:01:44] Speaker 01:
It would be tentative if they lose the appeal.

[00:01:47] Speaker 01:
Yes, we're not suggesting.

[00:01:48] Speaker 03:
So in Love's case, this case is moot.

[00:01:50] Speaker 01:
In Lev's case, there isn't a final decision yet, of course, because it's pending before the federal circuit.

[00:01:59] Speaker 02:
It's the third case being argued today.

[00:02:01] Speaker 01:
Correct.

[00:02:02] Speaker 01:
Yes.

[00:02:03] Speaker 02:
The third of the three veterans cases.

[00:02:05] Speaker 01:
Yes, Your Honor.

[00:02:07] Speaker 01:
And so here, each petition is asking the Veterans Court to decide who holds the money during that interim period.

[00:02:15] Speaker 01:
And we're not suggesting that should the veterans ultimately lose

[00:02:18] Speaker 01:
on that question that the government couldn't come back and seek overpayment.

[00:02:23] Speaker 01:
Instead, what we're saying is each veteran is subjected to a here and now injury because they're forced to live in this interim period without the full compensation to which they're entitled.

[00:02:33] Speaker 01:
And that relief is something that no court can ever address without mandamus review.

[00:02:39] Speaker 03:
I don't understand that.

[00:02:40] Speaker 03:
I mean, in Lindgren, there was an application for interim payments that could have happened here.

[00:02:47] Speaker 03:
And once you request the interim payments, if they're denied, you could appeal that determination.

[00:02:58] Speaker 03:
And while the appeal is pending, you could request under Rule 8 that there be a stay of the decision denying the payment.

[00:03:07] Speaker 03:
So why isn't there an alternative remedy?

[00:03:10] Speaker 01:
Because the Board has made clear that they will not address this implementation date.

[00:03:16] Speaker 03:
Here's what the Board says.

[00:03:17] Speaker 03:
It's us that makes the decisions about this.

[00:03:21] Speaker 01:
Yes, Your Honor.

[00:03:22] Speaker 01:
And to be clear, if Your Honors were to compel or order the Veterans Court to compel a decision on this from the Board, we do think that's within the relief that we're requesting today.

[00:03:32] Speaker 01:
However, as it currently stands for three of the four... No, I don't think so.

[00:03:36] Speaker 03:
I think you've been very clear that that's not the relief you're requesting today.

[00:03:40] Speaker 01:
It's not, we certainly would like more than that.

[00:03:44] Speaker 01:
But what I'm suggesting is that that's within the broad language of the petition that could also be requested.

[00:03:50] Speaker 03:
I don't see where that's the case.

[00:03:52] Speaker 03:
I mean, I read your briefs and the two cases as specifically saying that's not what you're requesting.

[00:03:59] Speaker 01:
We are, I don't want to argue with your honor on that point.

[00:04:04] Speaker 01:
My point is only that we think that we're requesting relief broader than that.

[00:04:10] Speaker 01:
and the rule eight stay that your honor suggested isn't even implicated yet for three of the four decisions because we don't have a board decision.

[00:04:17] Speaker 03:
But the question is do you have an adequate remedy by appeal?

[00:04:20] Speaker 03:
You can ask for interim payments.

[00:04:23] Speaker 03:
If they're denied, you can appeal that.

[00:04:27] Speaker 03:
If they don't act on the request, then you can

[00:04:30] Speaker 03:
ask for a mandamus to force them to act on it.

[00:04:33] Speaker 03:
And if you do appeal it, then under rule eight, you can ask that the payments continue pending appeal.

[00:04:41] Speaker 03:
I don't understand why that's not an adequate remedy by appeal.

[00:04:46] Speaker 01:
Thank you, Your Honor.

[00:04:47] Speaker 01:
And we've seen in the Lindgren case that that's

[00:04:50] Speaker 01:
a meaningless distinction because... What do you mean?

[00:04:53] Speaker 03:
Why is it meaningless?

[00:04:55] Speaker 01:
Because there the veteran followed exactly the guidance that Your Honor is suggesting here and that the Veterans Court said was that you need a decision from the agency first.

[00:05:03] Speaker 01:
Mr. Lindgren did that and we're in the exact same position.

[00:05:05] Speaker 03:
Oh, maybe they were wrong.

[00:05:07] Speaker 03:
And we can... Your remedy by appeal doesn't stop with the Veterans Court.

[00:05:13] Speaker 03:
You have a remedy by appeal here.

[00:05:17] Speaker 01:
Right.

[00:05:17] Speaker 01:
And so we think that the...

[00:05:21] Speaker 01:
the appeal, the remedy can't be addressed without the Veterans Court addressing this harm because it is... Let me back up a second.

[00:05:31] Speaker 01:
These circumstances, I think, are very akin to transfer cases that this court addresses repeatedly.

[00:05:38] Speaker 01:
And under 1404A,

[00:05:42] Speaker 01:
This court has found mandamus authority applicable even though the lower court can reach a decision and even though, yes, technically the claim for relief could later be addressed.

[00:05:52] Speaker 01:
But the issue is that there's no remedy that the court could provide.

[00:05:56] Speaker 01:
If in the 1404 instance, for example, if a petitioner is asked to fully litigate their claim in an inconvenient forum, then by the time they appeal that decision, they've already suffered the harm that they're seeking relief from.

[00:06:08] Speaker 01:
And that's the same instance here.

[00:06:09] Speaker 03:
That's not my suggestion.

[00:06:11] Speaker 03:
My suggestion is not that you have to wait until there's a final decision on the merits of the claim.

[00:06:18] Speaker 03:
My suggestion is you've got a remedy by appeal immediately to appeal the denial of the interim payments.

[00:06:26] Speaker 03:
And you can seek temporary relief pending appeal under Rule 8.

[00:06:29] Speaker 03:
And why is that not an adequate remedy?

[00:06:33] Speaker 01:
Yes, Your Honor.

[00:06:34] Speaker 01:
And we believe it is an adequate remedy.

[00:06:36] Speaker 01:
If the board were to reach a decision on the implementation date, yes, we could seek a stay under Rule 8.

[00:06:43] Speaker 01:
That is, of course, a high burden, as the government acknowledges.

[00:06:46] Speaker 01:
But yes, that is a remedy that exists.

[00:06:49] Speaker 01:
The reason we're here today is because we don't have that option because of how the board has acted.

[00:06:53] Speaker 01:
And I understand your honor's point to say that you can overturn that decision, and we would request that you do.

[00:06:58] Speaker 02:
Aren't you, Ms.

[00:06:59] Speaker 02:
McKenna, just really trying to shortcut the appeal process?

[00:07:03] Speaker 02:
Because one of the things you have to show to obtain the mandamus of relief is that you do not have any other adequate method to obtaining relief.

[00:07:13] Speaker 02:
And as your discussion with Judge Dyke suggests to me, there are adequate ways of obtaining the relief you're seeking.

[00:07:24] Speaker 02:
And those ways are available to your client and other clients.

[00:07:29] Speaker 02:
I mean, you just want to get it up there quicker.

[00:07:34] Speaker 02:
And sometimes that doesn't happen.

[00:07:38] Speaker 01:
Right.

[00:07:38] Speaker 01:
No, Your Honor.

[00:07:38] Speaker 01:
We're not trying to skip any steps here.

[00:07:43] Speaker 01:
An alternative path exists only if the decision of the Veterans Court is overturned.

[00:07:50] Speaker 01:
We don't have the possibility to get board review right now because the board has already said that they won't address this issue until they address the merits.

[00:07:57] Speaker 01:
And at that point, the claim for relief during a non-final action is moot.

[00:08:02] Speaker 01:
The court can't provide relief for it.

[00:08:04] Speaker 03:
So you could ask for a mandamus to force them to decide it now.

[00:08:08] Speaker 01:
And we do think that that is within the petitions that we've called.

[00:08:12] Speaker 03:
Could you show me where in the brief you make that argument?

[00:08:15] Speaker 01:
Yes, Your Honor.

[00:08:18] Speaker 01:
I'm sorry.

[00:08:19] Speaker 01:
I misunderstood your question.

[00:08:20] Speaker 01:
I thought you were asking where in the petition that we've made that argument.

[00:08:24] Speaker 01:
In the brief, I'll have to follow up with you to find the exact page.

[00:08:28] Speaker 01:
If I could point, Your Honor, to the petition language, if that would be helpful.

[00:08:33] Speaker 01:
So.

[00:08:38] Speaker 01:
And it's on appendix page 32 in the Love Appeal, the final relief

[00:09:03] Speaker 01:
saw it, the paragraph beginning with fourth says, the court can order any other such relief as may be appropriate in the interest of justice and in the aid of jurisdiction.

[00:09:13] Speaker 03:
And here what I'm suggesting is- Where specifically did you say that the court should order the board to make a decision on the interim payments issue?

[00:09:23] Speaker 03:
And there never was a request to the board in the Love case as opposed to the Lingard case.

[00:09:28] Speaker 01:
Right.

[00:09:29] Speaker 01:
And there was no request in the Love case because such a request isn't necessary.

[00:09:34] Speaker 01:
And I see your honor smile, so let me address that why.

[00:09:38] Speaker 01:
And first, of course, the issue is we don't have an avenue for appellate relief while the board has said it won't address this issue while the merits are pending.

[00:09:50] Speaker 01:
In addition, in this court's precedent under... They're wrong.

[00:09:54] Speaker 01:
We agree that they're wrong.

[00:09:56] Speaker 01:
And that's what the Lindgren appeal is based on.

[00:10:00] Speaker 01:
But also, in this court precedent, Mylan versus Jansen, this court held that to invoke mandamus authority, that you only need to set the administrative machinery into motion.

[00:10:10] Speaker 01:
You don't need to exhaust every possible path for relief.

[00:10:13] Speaker 01:
And it doesn't matter how prospective the future jurisdiction is.

[00:10:16] Speaker 01:
And in that particular case, it's helpful because there, this court was addressing the denial of institution from an IPR petition.

[00:10:24] Speaker 01:
The petition for mandamus did not present the same issues, of course, but the petition for IPR presented to the board.

[00:10:32] Speaker 01:
But nonetheless, this court held it had mandamus authority over the petition because the initial act of filing an IPR petition sets the administrative machinery into motion.

[00:10:44] Speaker 01:
We have that here.

[00:10:45] Speaker 01:
Each of the veterans has received a reduction, has appealed that reduction, and has set the administrative machinery into motion

[00:10:51] Speaker 01:
such that the decision on an implementation date is within the future jurisdiction of the Veterans Court and has been blocked by the Board's actions here.

[00:11:00] Speaker 01:
The Veterans did not need to seek an agency decision first before they could seek relief for this harm and doing so would be futile because we know that the Board won't address that issue without in order compelling it to do so.

[00:11:16] Speaker 01:
And this is akin to the Supreme Court's decision in FTC v. Dean Foods, where they held that if providing relief is virtually impossible, then mandamus authority is invoked.

[00:11:31] Speaker 01:
The government did not have any response to these arguments in their brief.

[00:11:36] Speaker 01:
Instead, they only challenged

[00:11:38] Speaker 01:
if this decision seeks substantive monetary relief, and we submit that it does not, because instead of seeking, for example, a remedy for agency harm, the veterans here are seeking to preserve the status quo.

[00:11:53] Speaker 01:
It's not disputed that they have full rights to appeal the reduction, and it's not disputed that those appeals are pending.

[00:12:04] Speaker 01:
What they're seeking is only to preserve the status quo that the entire benefit system is created to protect them for this harm.

[00:12:14] Speaker 01:
They've come to rely on these payments.

[00:12:16] Speaker 01:
The decisions reducing them are non-final and remain pending and have been pending for years.

[00:12:23] Speaker 01:
The veterans should not be the ones to bear the harm while this decision works its way through agency appeals.

[00:12:33] Speaker 01:
I'd just like to briefly address the merits.

[00:12:37] Speaker 02:
We're not asking this court to reach the merits in the first instance, of course, because... The last case we're hearing today, 1465, that resolves one way or the other.

[00:12:48] Speaker 02:
That would resolve one way or the other.

[00:12:50] Speaker 02:
Mr. Love's merits, correct?

[00:12:53] Speaker 01:
Yes, Your Honor.

[00:12:54] Speaker 03:
But it wouldn't... No, it's a different issue.

[00:12:56] Speaker 03:
The merits of the third Love case are not the same as the merits here.

[00:13:01] Speaker 01:
uh... it that's what i want to address the merits of mister loves reduction it does not address the merits of whether mandamus relief is appropriate also doesn't address the merits of whether the the uh... agency estimate in repayments cracked out i don't i don't mean to suggest that it would resolve that uh... i'm sorry that it didn't addresses the merits of the reduction with the issue of the

[00:13:29] Speaker 02:
75, 28, and so forth.

[00:13:32] Speaker 01:
Yes, your honor.

[00:13:33] Speaker 01:
And to put that in perspective, if you think of expenses your honors face in an ordinary day, paying mortgages for groceries for gas, if you can't make those payments on a month-to-month basis, it's no relief to five to seven years down the road receive a lump sum.

[00:13:48] Speaker 01:
At that point, you've been forced to change your lifestyle.

[00:13:50] Speaker 01:
And that's the harm that the veterans are facing here.

[00:13:53] Speaker 01:
And I see them in my rebuttal time.

[00:13:55] Speaker 01:
So unless your honors have any further questions, I'll

[00:13:59] Speaker 03:
Okay, thank you.

[00:14:14] Speaker 00:
May it please the court?

[00:14:15] Speaker 00:
So far this morning, there's been a lot of discussion about the alternative avenues to appeal.

[00:14:22] Speaker 00:
But I'd like to discuss the threshold question even before that.

[00:14:25] Speaker 00:
I think the roadmap for this case should be the Supreme Court's decision in Clinton v. Goldsmith.

[00:14:31] Speaker 00:
That's another case assessing whether there is jurisdiction in Article I court to entertain a petition for mandamus.

[00:14:39] Speaker 00:
And there, the Supreme Court separately addressed the in aid of question.

[00:14:44] Speaker 00:
before even reaching the necessary and appropriate question that really overlaps with whether there are alternative avenues to appeal.

[00:14:51] Speaker 00:
And the second half of the Supreme Court's decision only reached that.

[00:14:55] Speaker 00:
essentially in the alternative, saying even if we can assume there's some arguable basis for jurisdiction, then it's not necessary and appropriate for the Court of Appeals for the Armed Forces there because there's alternative avenues.

[00:15:08] Speaker 02:
You're saying as well, we should look first at the issue of whether the petition, if granted, would be an aid of jurisdiction.

[00:15:15] Speaker 00:
Exactly.

[00:15:16] Speaker 02:
And on that question, again- Not only after that, do you get to other avenues of relief issue.

[00:15:21] Speaker 00:
That's right, Your Honor.

[00:15:22] Speaker 00:
And the Clinton v. Goldsmiths has a roadmap for that analysis as well, because it starts with the Article 1 court's jurisdiction.

[00:15:30] Speaker 00:
Here, the veterans court's jurisdiction, of course, is to review decision of the board.

[00:15:35] Speaker 00:
And there's no board decision here.

[00:15:38] Speaker 00:
But when you look to this court's cases that have applied mandamus, they are in that exact framework.

[00:15:45] Speaker 00:
In Cox, in Bates, in Martin, the question is, is there a block to get a decision to the Veterans Court?

[00:15:52] Speaker 03:
Do you agree there's an alternative remedy by appeal here?

[00:15:55] Speaker 03:
I mean, the board can't just say, oh, well, there's a request for interim relief.

[00:15:59] Speaker 03:
We'll decide that when we decide the merits.

[00:16:02] Speaker 03:
That's wrong, right?

[00:16:04] Speaker 00:
Well, I don't know.

[00:16:05] Speaker 00:
I don't agree that it's wrong necessarily on the merits, but the merits are a different question.

[00:16:10] Speaker 03:
Wait, wait, wait.

[00:16:10] Speaker 03:
That's not... I'm talking about do they... I'm not saying how they have to decide it, but if there's a request for interim relief presented to the board,

[00:16:21] Speaker 03:
and the board receives that, they cannot deal with it by saying, oh well, we'll decide that later on when we decide the merits of the case.

[00:16:30] Speaker 03:
We can't do that, right?

[00:16:32] Speaker 00:
I don't think I can agree 100% with that statement, but I can agree that there would be a mandamus relief if the

[00:16:38] Speaker 00:
veteran could show they have a clear and indisputable right to an interim decision in advance of the underlying merits, they can bring that argument to the Veterans Court and say, there's a block.

[00:16:49] Speaker 03:
How can the board possibly justify not reaching a decision on the question?

[00:16:54] Speaker 03:
I don't understand that.

[00:16:55] Speaker 00:
Well, I think the reason is that, and this does get to the merits that we don't think the court should entertain, but the issue is the statute's clear, the regulation's clear on the effective date issue.

[00:17:04] Speaker 00:
38 USC 5112.

[00:17:07] Speaker 03:
So the board

[00:17:08] Speaker 03:
perfectly within its rights to say, we don't agree about the construction.

[00:17:13] Speaker 03:
We think there's no right to interim relief.

[00:17:15] Speaker 03:
They just can't say, oh, well, we're not even going to address that question until we reach the merits, because they're essentially defeating the right by postponing the decision.

[00:17:25] Speaker 03:
Right?

[00:17:27] Speaker 00:
I don't think I can agree with that here, Your Honor, and it's not presented in this case, of course, but I do certainly agree that as to the mandamus question, could a veteran go to the veteran's court and say, there's a blockage, I do have a right to an interim decision, and there's been a blockage because the board is not giving me that interim decision, they're holding it back, that would

[00:17:48] Speaker 00:
The Veterans Court could say that's an aid of our jurisdiction.

[00:17:51] Speaker 00:
They could apply the track factors and assess whether there's an unreasonable delay.

[00:17:55] Speaker 03:
Did they ask for that here?

[00:17:57] Speaker 00:
They did not ask for that here, Your Honor.

[00:17:58] Speaker 00:
They've only asked for the substantive relief, which is payment of money.

[00:18:04] Speaker 00:
They've asked for the overpayment

[00:18:07] Speaker 00:
benefits at the pre-reduction rate.

[00:18:10] Speaker 00:
And they've asked the Veterans Court to order that when the VA has never decided it, the Board has not decided it.

[00:18:16] Speaker 00:
And there's a consensus.

[00:18:17] Speaker 03:
And do you agree that if the Board denies interim relief that that's an appealable order?

[00:18:26] Speaker 00:
I think so, because the question would be, the Veterans Court really took the petition as it was presented, and the petition's claim was, we have a completely separate right here, as Your Honor noted, not the same as the underlying reduction issue, a completely separate right regarding

[00:18:44] Speaker 00:
implementation date versus effective date.

[00:18:47] Speaker 00:
And the Veterans Court explained that is something that arises under 511, 38 U.S.C.

[00:18:51] Speaker 00:
511.

[00:18:54] Speaker 00:
That's for the Secretary to decide.

[00:18:55] Speaker 00:
And then it can be appealed to the Board and to the Veterans Court.

[00:18:58] Speaker 00:
So to the extent that it's a separate issue, on the merits, of course, we don't think it actually is.

[00:19:03] Speaker 00:
The effective date statute is clear.

[00:19:05] Speaker 00:
The regulation in turn says that where an award is reduced, the reduced rate will be payable.

[00:19:11] Speaker 00:
the day following the date of discontinuance of the greater benefit.

[00:19:14] Speaker 00:
That regulation is also law.

[00:19:16] Speaker 00:
So I think the law is clear here, but we agree with Ms.

[00:19:20] Speaker 00:
McKenna that's a merit issue, and this court is reviewing the jurisdictional question.

[00:19:24] Speaker 03:
And if there is an appeal, Rule 8 relief is potentially available, right?

[00:19:28] Speaker 00:
Yes, Your Honor, yes.

[00:19:31] Speaker 00:
But the in aid of piece is really the critical piece here, and there aren't any arguments made on appeal on that point.

[00:19:39] Speaker 00:
The arguments on appeal focus on the merits issue, the effective date versus implementation date argument, and then the moodness issue, which is really an alternative avenues issue.

[00:19:49] Speaker 00:
In the in aid of argument, there was really only one key argument on that point made to the Veterans Court, and that was the argument that the overpayment issue was deciding that was in aid of the Veterans Court's jurisdiction because there could be a potential overpayment dispute in the future that would be within the Veterans Court's jurisdiction.

[00:20:15] Speaker 00:
That was what was in the petition for the argument regarding in aid of.

[00:20:19] Speaker 00:
And the Veterans Court correctly rejected that in the opening brief in Mr. Love's appeal here.

[00:20:26] Speaker 00:
Mr. Love and the consolidated appellant said there's no need to reach that issue.

[00:20:30] Speaker 00:
So what we're left with on appeal is no argument at all from the consolidated appellant regarding how their request

[00:20:38] Speaker 00:
for payment to order the VA to pay money is in aid of the Veterans Court's role as a reviewer of board decisions.

[00:20:46] Speaker 00:
It's not in aid of the Veterans Court's jurisdiction.

[00:20:50] Speaker 00:
It would be the Veterans Court supplanting the VA and the board as the initial decision maker.

[00:20:57] Speaker 00:
We think the court really need not go any further than to say,

[00:21:00] Speaker 00:
This court's role is to review the Veterans Court.

[00:21:02] Speaker 00:
So the question is, of the arguments presented to the Veterans Court, did the Veterans Court err in any of them?

[00:21:08] Speaker 00:
And because on that court issue, the in aid of issue, there certainly was no error.

[00:21:14] Speaker 00:
There's not even any arguments that have been raised on appeal on that point.

[00:21:22] Speaker 00:
And if there's no further questions, we'd ask the court to please affirm.

[00:21:25] Speaker 03:
Thank you.

[00:21:27] Speaker 03:
Ms.

[00:21:28] Speaker 03:
McKenna.

[00:21:33] Speaker 01:
Thank you, Your Honors.

[00:21:35] Speaker 01:
Two quick points on rebuttal.

[00:21:37] Speaker 01:
First, at no point during opposing counsel's argument did she dispute that the harm here is mooted without a mandamus relief.

[00:21:46] Speaker 01:
She instead focused on that

[00:21:48] Speaker 01:
There's no block in aid of jurisdiction, but there is.

[00:21:51] Speaker 03:
I don't understand that.

[00:21:52] Speaker 03:
She agrees there's a remedy by appeal.

[00:21:56] Speaker 03:
And if you do appeal, you've got a rule eight motion.

[00:22:00] Speaker 03:
And she does agree that if the board declines to decide the interim relief question, that's subject to a mandamus petition.

[00:22:11] Speaker 03:
She's not saying there's no remedy.

[00:22:16] Speaker 01:
Let me rephrase that.

[00:22:19] Speaker 01:
She focused on there being a block in the aid of jurisdiction piece.

[00:22:23] Speaker 01:
And our argument here is there is a block because the harm is mooted.

[00:22:28] Speaker 01:
Yes, the harm can't be addressed without relief.

[00:22:36] Speaker 02:
What is the block to the Veterans Court's jurisdiction?

[00:22:41] Speaker 01:
The block is that the board has made clear that it won't address this issue without addressing it.

[00:22:48] Speaker 03:
That's not binding on us, is it?

[00:22:52] Speaker 01:
If this court can order the Veterans Court to compel a decision, again, then we would take that as relief.

[00:22:59] Speaker 01:
We're not disputing that that would provide relief.

[00:23:02] Speaker 01:
But as the facts stand before us, the board has made clear that it won't address this decision without addressing the merits.

[00:23:08] Speaker 01:
And at that point, the decision that is non-final becomes final, and we don't have this interim period for relief.

[00:23:19] Speaker 01:
What exactly, let me move on, I'm sorry.

[00:23:22] Speaker 01:
Quickly, my last point is only that undue delay is not the only block.

[00:23:26] Speaker 01:
And we've seen that in transfer cases and we've seen that in the Supreme Court's FTC decision.

[00:23:29] Speaker 01:
So there is a block here and we submit that without mandamus relief, the veterans petition for relief could never be addressed.

[00:23:38] Speaker 01:
Thank you, Your Honor.

[00:23:39] Speaker 03:
Okay, thank you.

[00:23:39] Speaker 03:
Thank both counsel.

[00:23:40] Speaker 03:
The case is submitted.