[00:00:00] Speaker 04:
Next case is measure problems in the area EMS authority at our versus the Secretary of Veterans Affairs 2024 1104 mr. Stimson Thank you, your honor.

[00:00:14] Speaker 02:
My clients are small on the municipal around the ambulance providers in Texas and Pennsylvania They have large numbers of veterans in their service areas and when they transport those veterans

[00:00:30] Speaker 02:
two informal places besides the Department of Veterans Affairs facility, like a roadside accident scene or a private residence or a small community hospital.

[00:00:41] Speaker 02:
Since 2008, the Secretary for Veterans Affairs has paid for those transports at the actual cost, meaning the bill charges for my clients pursuant to a regulation at 38 CFR 70.30A4.

[00:00:58] Speaker 02:
The Secretary has now published a rule that's going to go into effect next February that will reduce the rate on not only those transports, but all transports of veterans on a non-contract basis to the Medicare rate.

[00:01:12] Speaker 02:
The problem with that rule is that the only statutory authority that the Secretary cites for it is at 38 USC 111 B3C.

[00:01:25] Speaker 02:
And 111 B3C says,

[00:01:28] Speaker 02:
that the secretary's authority to pay the Medicare rate applies only to transports to or from department facilities, meaning transports where the pickup of the veteran or the drop-off of the veteran is a VA hospital or outpatient clinic.

[00:01:47] Speaker 02:
The rule goes far beyond the technical statute to reach all transports, regardless of the pickup or drop-off location, and it fails on that basis alone.

[00:01:57] Speaker 02:
because Congress simply did not give the secretary the authority that he ceased to exercise the rule.

[00:02:04] Speaker 00:
The rule was also arbitrary in the process.

[00:02:08] Speaker 00:
Yes, Your Honor.

[00:02:10] Speaker 00:
Just sticking to the statutory interpretation point, could you address the government's argument that the second sentence of Section 111A

[00:02:23] Speaker 00:
undermines your argument by only referring to a department facility as opposed to referring to both a department facility or other place.

[00:02:34] Speaker 00:
They make this point about how that is going to cause problems or make the interpretation that you provide absurd.

[00:02:43] Speaker 02:
So I'm happy to, Your Honor.

[00:02:49] Speaker 02:
The government's interpretation is based on one case.

[00:02:53] Speaker 02:
New Hampshire Watering Commission versus Rosen.

[00:02:56] Speaker 02:
New Hampshire Watering Commission versus Rosen involved one sentence of the Wire Act that had two clauses.

[00:03:05] Speaker 02:
The first sentence had limiting language at the end of the clause.

[00:03:10] Speaker 02:
The government argued in that case that the limiting language at the end of the first clause applied only to that clause, and the plaintiffs argued that the second clause paraphrased the first, and they should be read

[00:03:22] Speaker 02:
to be co-expensive.

[00:03:25] Speaker 02:
That case used the term shorthand for the second clause.

[00:03:32] Speaker 02:
There is no such thing as a shorthand candidate construction.

[00:03:35] Speaker 02:
It simply does not exist.

[00:03:38] Speaker 02:
And that case does not apply here for at least six reasons.

[00:03:43] Speaker 04:
Why doesn't the rule derive support from A, 111A?

[00:03:52] Speaker 02:
The shorthand canon, Your Honor, or the government's interpretation?

[00:03:56] Speaker 04:
Well, a proper interpretation.

[00:04:00] Speaker 02:
Sorry, I couldn't hear you.

[00:04:01] Speaker 04:
A proper interpretation.

[00:04:06] Speaker 04:
Well, perhaps your answer is that A doesn't refer to the lesser of two options.

[00:04:14] Speaker 04:
Is that the answer?

[00:04:16] Speaker 02:
If you look at section 111A,

[00:04:18] Speaker 02:
What it says is that the secretary may pay the actual necessary expense of travel of any person to or from a department facility or other place or other place.

[00:04:30] Speaker 02:
The words or other place do not appear in section 111B3C.

[00:04:36] Speaker 02:
And that's important for several reasons.

[00:04:38] Speaker 02:
First, the word facility and the word other place are different.

[00:04:44] Speaker 02:
Websters define the word place

[00:04:47] Speaker 02:
The timing statute was enacted to mean locality, and a locality could include that it's not limited to a facility.

[00:04:54] Speaker 02:
So the meanings of the words place, facility are just different.

[00:04:59] Speaker 02:
The word place, other place, also follows the words department, facility.

[00:05:05] Speaker 02:
And under the Canada Gnosis Societor, it has to have a different and more expansive reading in relation to department, facility.

[00:05:14] Speaker 02:
There's also a long line of Supreme Court cases, which we cite on page 10 of our reply brief, that say that when Congress uses the word war, the disjunctive, words have different meanings.

[00:05:28] Speaker 02:
So Congress separated words that have different meanings with the word war, and they must have different meanings as a consequence.

[00:05:37] Speaker 02:
When you look at section 111B3C,

[00:05:43] Speaker 02:
If you give it its plain language reading and limit it to transports to or from department facilities, it fits very neatly underneath 111A.

[00:05:54] Speaker 02:
And when you adopt the government's reading and try to apply New Hampshire Lottery Commission, the two are out of sync.

[00:06:04] Speaker 02:
And in fact, New Hampshire Lottery Commission involved a much different statutory provision.

[00:06:12] Speaker 02:
one sentence of the Liar Act that had two clauses.

[00:06:16] Speaker 02:
Here we have a very lengthy statutory provision that has two separate paragraphs that have entirely different words in the two paragraphs.

[00:06:29] Speaker 02:
So that case really has no application here to the statute.

[00:06:34] Speaker 02:
I think two other points of consideration in the statutory analysis

[00:06:39] Speaker 02:
The first is that the government's interpretation would mean that the tail would wag the dog.

[00:06:45] Speaker 02:
The dog here is 111A and the tail is 111B3C.

[00:06:50] Speaker 02:
And the government would apply the Medicare rate to all transports under the statute, as well as all transports under an entirely different statute, 38 U.S.C.

[00:07:01] Speaker 02:
1728, which the government currently invokes to pay claims at actual costs or bill charges.

[00:07:10] Speaker 02:
And it can't be that a limited statutory provision applies to cover all transports under both statutes, otherwise Congress wouldn't have written the two statutes the way that they are.

[00:07:23] Speaker 02:
And to punctuate that point, Congress actually had opportunities in 2011 and 2012 to amend 111B3C and took a pass both times.

[00:07:37] Speaker 01:
Mr. Stim, could you help me with the government makes this argument about air travel and says that your interpretation, if adopted, would mean they would no longer have authority to transport veterans by air.

[00:07:52] Speaker 01:
I'm sure you're familiar with the argument.

[00:07:54] Speaker 01:
Can you help me with it?

[00:07:56] Speaker 02:
Sure.

[00:07:57] Speaker 02:
So that sentence was added to the statute fairly late in its life.

[00:08:07] Speaker 02:
That statute, that sentence of the statute discusses the reasonable cost of airfare.

[00:08:15] Speaker 02:
The proper reading of that sentence is that it refers to commercial air transport because that's what airfare typically refers to in the ordinary use of the term.

[00:08:28] Speaker 02:
The statute itself is not limited to ambulance transports.

[00:08:32] Speaker 02:
It covers non-ambulance transports as well as

[00:08:36] Speaker 01:
Emergent and non-urgent transports, so but the sentence the sentence relating to air air transport Uses quote a department facility and does not also say or other place is that correct?

[00:08:52] Speaker 01:
That's correct, so wouldn't your interpretation if we adopt it that a department facility has a different meaning than a department facility or other place and

[00:09:03] Speaker 01:
wouldn't it have the effect of limiting the authority of the secretary to pay for commercial airfare, for example, involved with transport to something other than a department facility?

[00:09:20] Speaker 02:
That's correct.

[00:09:21] Speaker 02:
I agree with that interpretation.

[00:09:24] Speaker 02:
That's the way Congress wrote the statute.

[00:09:26] Speaker 02:
That's the way the census reads.

[00:09:28] Speaker 01:
So would that be just given how the statute's currently interpreted by the secretary?

[00:09:33] Speaker 01:
If I understand it correctly, the secretary does believe he has authority to pay for commercial airfare to non-department facilities.

[00:09:43] Speaker 01:
If we adopt your construction, it would mean that the secretary would no longer have authority to pay something for veterans that he's currently paying for.

[00:09:55] Speaker 02:
I don't know whether the department is currently paying for commercial air transportation or not.

[00:10:01] Speaker 02:
It's beyond the scope of the facts in the case.

[00:10:04] Speaker 02:
I think this is a concern that- But assuming it is, let's assume hypothetically that it is.

[00:10:12] Speaker 00:
Then what's your answer to Judge Stark's question?

[00:10:17] Speaker 02:
It's twofold.

[00:10:18] Speaker 02:
First, this is the language that Congress put in the statute, and it's plain and unambiguous.

[00:10:24] Speaker 02:
The issue is more one of policy.

[00:10:27] Speaker 02:
And if I were to intuit why Congress would have written a statute that way, it would be because airfare as opposed to ambulance transportation is not emergent.

[00:10:37] Speaker 02:
And the VA would have a compelling reason to limit commercial airfare to non-VA facilities, because VA facilities

[00:10:49] Speaker 02:
going to most likely provide the same non-emergent care that non-VA facilities would provide.

[00:10:56] Speaker 02:
So I think, actually, from a policy perspective, the rational reading of that sentence, the plain language reading of that sentence, makes rational sense.

[00:11:10] Speaker 02:
Going back to my earlier point about Congress having an opportunity to amend 111B3C

[00:11:19] Speaker 02:
It had the opportunity to do so in 2011.

[00:11:22] Speaker 02:
It had the opportunity to do so 2012.

[00:11:24] Speaker 02:
It took a pass for the times.

[00:11:25] Speaker 02:
If Congress wanted the statute to say what the secretary wants to do here, it would have amended the language connected.

[00:11:34] Speaker 02:
Heard it briefly in my remaining time to the arbitrary and capricious point.

[00:11:42] Speaker 02:
The secretary certified under the Regulatory Flexibility Act that the rule would not

[00:11:48] Speaker 02:
impact, have a significant economic impact on a substantial number of small entities.

[00:11:55] Speaker 02:
That certification was made based on economic projections, economic projections that did not take into account actual cost data that the secretary had in his possession that showed that the impact of the rule will be five times what was projected.

[00:12:15] Speaker 02:
Five times.

[00:12:16] Speaker 02:
That is not an immaterial oversight.

[00:12:19] Speaker 02:
That is a material oversight.

[00:12:21] Speaker 02:
And it's one that is prejudicial to my clients, two of which are small entities with statutory standing under the RFN.

[00:12:29] Speaker 02:
If the secretary had just considered the data that he actually had in his own possession and had done a regulatory flexibility analysis, then he would have considered the possibility of carving my clients out of the rule.

[00:12:44] Speaker 02:
And the fact that he failed to consider that option when he had the data in his possession was incredibly prejudicial to my clients.

[00:12:53] Speaker 02:
And we submit that that, too, is a basis for vacating and remanding to the agency.

[00:12:59] Speaker 02:
I'd like to reserve the remainder of my time for a while.

[00:13:02] Speaker 04:
We will do that, Mr. Stimson.

[00:13:05] Speaker 02:
Thank you.

[00:13:06] Speaker 04:
Mr. Kirchner.

[00:13:12] Speaker ?:
Yes.

[00:13:12] Speaker ?:
Good morning.

[00:13:13] Speaker 03:
Your honors, it mantains the court.

[00:13:16] Speaker 03:
Much of this case is a belated challenge to the wisdom of an act of Congress that empowered the Department of Veterans Affairs with no condition or qualification to pay ambulance service providers the rates that are set up by CMS.

[00:13:32] Speaker 03:
The court should reject that challenge and allow the VA to do precisely what Congress authorized it to do.

[00:13:38] Speaker 03:
First and foremost, the court should do so because the petitioners orphaned

[00:13:43] Speaker 03:
the vast majority of the arguments.

[00:13:45] Speaker 00:
Mr. Kirschner, could you talk about the statutory interpretation point?

[00:13:48] Speaker 00:
Could you start with that, since that's what we've been just most recently focusing on?

[00:13:54] Speaker 00:
I have to say that I'm having a hard time

[00:13:58] Speaker 00:
I'm thinking that the First Circuit NH Lottery case applies here.

[00:14:04] Speaker 00:
I'm seeing a big difference between the language at issue here, which is department, facility, or other place, and the language that was in the NH Lottery case.

[00:14:14] Speaker 00:
And I'm having a hard time with your shorthand statutory interpretation argument.

[00:14:18] Speaker 00:
So you might want to start by addressing that.

[00:14:22] Speaker 03:
Absolutely, Judge.

[00:14:23] Speaker 03:
I still haven't.

[00:14:26] Speaker 03:
The First Circuit in the New Hampshire Water Commission case did not come up with some sort of a shorthand canon.

[00:14:33] Speaker 03:
And we're not advocating for a shorthand canon either.

[00:14:35] Speaker 03:
All we are saying, and all the First Circuit said in that case, is that when the court interprets statutory language, it has to consider that language in context.

[00:14:46] Speaker 03:
And when the context indicates something about the language, for instance, the Congress used a particular frame as shorthand

[00:14:55] Speaker 03:
for another longer phrase, would you give that context meaning and interpret the statutory provision?

[00:15:02] Speaker 00:
But that problem I'm having is that normally, if a statute says A or B, and then later it only refers to A, I don't usually understand that to mean shorthand for A and B. That's very true, Judge Stoller.

[00:15:21] Speaker 03:
But again, what I'm asking the court to do is to look at the context.

[00:15:26] Speaker 03:
Section 111B3C, which is the operative provision in this case.

[00:15:32] Speaker 03:
And if we take a look at Section 111A only, the first sentence of that provision says, a department facility or other place.

[00:15:40] Speaker 03:
The second sentence, when it explains the meaning of a phrase used in the first sentence, the phrase actual necessary expensive travel,

[00:15:49] Speaker 03:
It uses the shorter phrase, a department facility.

[00:15:53] Speaker 00:
Isn't there also another reasonable interpretation of that to mean that actually the only thing that second sentence says is that for airfare, we're only going to pay when it's reaching a departmental facility.

[00:16:09] Speaker 00:
In other words, you're not going to pay for commercial airfare when it's

[00:16:15] Speaker 00:
to somewhere other than the other place.

[00:16:21] Speaker 03:
So we don't think that's a reasonable way to interpret it because that second sentence simply explains the meaning of a phrase in the first sentence, actual, necessary, expensive travel.

[00:16:33] Speaker 03:
And then in addition to that, Judge Stull, you have to look at how Section 111A relates to the following section.

[00:16:40] Speaker 00:
Can I go back to that, what you just said?

[00:16:42] Speaker 00:
I hear what you're saying.

[00:16:44] Speaker 00:
I don't think that this second sentence defines all necessary expense of travel.

[00:16:51] Speaker 00:
It's only saying that it could include reasonable cost of airfare when certain conditions are met, right?

[00:16:57] Speaker 00:
That is, the condition being that it has to be a department facility.

[00:17:01] Speaker 00:
So why is it that you're saying that the second sentence is definitional?

[00:17:08] Speaker 03:
It's not that it's definitional.

[00:17:10] Speaker 03:
It explains the meaning of actual, necessary, expensive travel.

[00:17:13] Speaker 03:
And I agree with you, Judge Stoll.

[00:17:15] Speaker 03:
It doesn't define everything that that phrase might mean.

[00:17:19] Speaker 03:
But as Judge Starr correctly pointed out, the question that comes up then is what happens in a situation where a veteran has to travel to a non-department facility?

[00:17:32] Speaker 03:
And the only practical way to do so is to do so by air.

[00:17:38] Speaker 03:
Does that mean that the Secretary no longer has the ability to cover that type of expense?

[00:17:44] Speaker 03:
And the VA doesn't think so.

[00:17:46] Speaker ?:
The VA has always, since this statute was adopted by Congress,

[00:17:55] Speaker 03:
I want to ask you one other thing about this.

[00:18:05] Speaker 00:
The language airfare in this sentence we're talking about, do you agree that that's commercial airfare?

[00:18:10] Speaker 00:
That's a point that was made in the reply brief and I just don't have your response on that.

[00:18:18] Speaker 03:
And to be honest with you, I'm not sure what the VEA's position on that is.

[00:18:23] Speaker 03:
The reason I say it's not clear is because there is another provision that's relevant to travel by air, and that's section 111B4.

[00:18:35] Speaker 00:
Can I ask you, do you think this reference to reasonable cost of airfare includes air ambulance transport?

[00:18:42] Speaker 00:
I mean, I think that might be special transport, so I don't think it does, but what do you think?

[00:18:52] Speaker 03:
I'm not sure whether it covers ambulance transport.

[00:18:59] Speaker 04:
Council, aside from the nature of the services, I'm looking at the language of these provisions.

[00:19:06] Speaker 04:
The rule has to find support either in 111A or 3C, or at least not be in opposition to these rules.

[00:19:19] Speaker 04:
Now, it can't be based on C,

[00:19:21] Speaker 04:
Because C doesn't have the other as an alternative to the department.

[00:19:29] Speaker 04:
It's limited to the department.

[00:19:32] Speaker 04:
And it can't be based on A, because A doesn't have the lesser qualification.

[00:19:39] Speaker 04:
So it seems to me that this rule is an excess of what is provided by A

[00:19:51] Speaker 03:
Or C. I think that's the crux of the issue, Judge Lorry.

[00:20:01] Speaker 03:
We understand Section E3C to cover any transfer to or from a department facility or other place.

[00:20:11] Speaker 04:
Well, you're reading language.

[00:20:15] Speaker 04:
statute, which appears elsewhere and could have appeared here if the drafters had intended it, but they presumably didn't.

[00:20:27] Speaker 03:
That's right.

[00:20:27] Speaker 03:
But when Congress used the phrase, a department facility, without the addition of the words, or other place, which it has used throughout section 111, we understand that to be shorthand for the longer phrase, a department facility, or other place,

[00:20:45] Speaker 03:
And again, that's based on the structure of this entire provision, not just 111B3C, but all of 111, and the way those provisions work together.

[00:20:55] Speaker 04:
Sounds like you're using shorthand as a substitute for a failure to include something in the statute.

[00:21:05] Speaker 04:
Now, let me ask you, what role does 1728 play here?

[00:21:11] Speaker 03:
So section 1728,

[00:21:14] Speaker 03:
is a specific application of the more general authority under Section 111A.

[00:21:20] Speaker 03:
Section 111A gives the VA the discretion to reimburse travel expenses.

[00:21:25] Speaker 03:
Section 1728 gives the VA the authority to reimburse travel expenses in case of emergencies.

[00:21:34] Speaker 03:
And within Section 1728, there is a cross-reference to Section 111.

[00:21:39] Speaker 03:
It says that such reimbursements

[00:21:41] Speaker 03:
has to be done under the terms and conditions of Section 111.

[00:21:46] Speaker 03:
And our understanding is better.

[00:21:48] Speaker 04:
Are you saying that 1728 provides support for your position?

[00:21:54] Speaker 03:
It does not provide direct support, but it does not undermine our position either.

[00:21:58] Speaker 04:
Well, it certainly doesn't provide for two choices, including the lower of two of them, including the Medicare rate.

[00:22:08] Speaker 03:
You're correct, Judge Laurie, Section 1728 does not include the lesser-of language of Section 111B3C.

[00:22:16] Speaker 03:
But if I may, I want to return to the statutory interpretation issue of Section 111.

[00:22:23] Speaker 04:
Well, that's what we've been on.

[00:22:24] Speaker 03:
I'm sorry.

[00:22:26] Speaker 04:
We're not returning to it.

[00:22:28] Speaker 04:
We've been on it.

[00:22:31] Speaker 03:
So the other thing that we should consider is VA's regulatory practice at the time of Section 111B3C

[00:22:39] Speaker 03:
was adopted in 2011.

[00:22:40] Speaker 03:
At the time, as today, the VA viewed any provision within Section 111 talked about travel to and from a department facility as also referencing the broader term to or from a department facility or other place.

[00:22:57] Speaker 03:
And there's a canon of statutory interpretation that says when you have this type of prevalent regulatory practice,

[00:23:04] Speaker 03:
Congress presumably knows it, understands it, and is legislating with that as a background principle.

[00:23:12] Speaker 03:
And so that is further indication, in addition to the text and structure of Section 111, that Congress used the phrase, a department facility, as shorthand for the phrase, a department facility.

[00:23:25] Speaker 01:
I asked you about your forfeiture argument.

[00:23:29] Speaker 01:
You're contending, if I understand correctly, that this statutory interpretation question that we've been focused on is one we can't even reach.

[00:23:37] Speaker 01:
Is that right?

[00:23:37] Speaker 03:
That's correct.

[00:23:39] Speaker 01:
And that's based on a DC circuit forfeiture rule that, if I understand correctly, we've never adopted.

[00:23:46] Speaker 01:
Is that also right?

[00:23:47] Speaker 03:
That is correct, although many other circuits have, as we point out in our presentation.

[00:23:52] Speaker 01:
I also understand the DC circuit rule

[00:23:55] Speaker 01:
forfeiture rule has some exceptions to it.

[00:23:59] Speaker 01:
If we were to adopt the rule, we would presumably adopt the exceptions to the forfeiture as well, wouldn't we?

[00:24:06] Speaker 03:
So it does have some narrow exceptions.

[00:24:08] Speaker 03:
You're absolutely correct, Joe Stark.

[00:24:10] Speaker 03:
But the fact that the challenge is a challenge to the statutory authority of the agency, that is not in itself an exception.

[00:24:23] Speaker 03:
And in fact, this

[00:24:23] Speaker 03:
the D.C.

[00:24:24] Speaker 03:
Circuit made clear in the Korotov v. Bilsak case that we cited in our briefing that arguments about statutory authority can be weighed and can be forfeited if they are not raised during the ruling process.

[00:24:39] Speaker 01:
What about fundamental assumptions?

[00:24:42] Speaker 01:
Why would this case not fall into that exception to the forfeiture rule?

[00:24:47] Speaker 03:
Right.

[00:24:47] Speaker 03:
So there is a case law in the D.C.

[00:24:50] Speaker 03:
Circuit that talks about key assumptions and how those may not be weighed.

[00:24:54] Speaker 03:
But the way that the circuit has applied that exception to forfeiture is by focusing only on factual findings that a statutory provision requires the agency to make before the agency promulgates a regulation.

[00:25:08] Speaker 03:
That's not the case here.

[00:25:10] Speaker 03:
What we have here is an argument by the petitioners that everything they raise is necessarily a key assumption.

[00:25:17] Speaker 03:
The way they view the key assumptions exception

[00:25:20] Speaker 03:
is that it covers everything that may be brought up after the rulemaking, to the point where it would be an exception to swallow the rule, because everything would become a key assumption.

[00:25:30] Speaker 03:
But again, I do want to emphasize that under the core top deep bill stat case, the statutory authority of the agency to regulate is not a key assumption.

[00:25:43] Speaker 03:
That case, if I may provide just a little bit of background,

[00:25:47] Speaker 03:
The case involved a Department of Agriculture regulation that required producers of almonds to treat those almonds for salmonella.

[00:25:58] Speaker 03:
And after the USDA published the final rule, some producers of almonds came to court and said, actually, the USDA does not have statutory authority to regulate almonds in that way at all.

[00:26:09] Speaker 03:
And the D.C.

[00:26:10] Speaker ?:
Circuit said that argument has been forfeited because it was not raised to a rulemaking

[00:26:16] Speaker 03:
even though that goes to the statutory authority of the agency.

[00:26:21] Speaker 01:
So how can that survive after Lope or Bright?

[00:26:24] Speaker 01:
Doesn't the Supreme Court make extremely clear that courts have to interpret statutes, even ones, and maybe particularly ones, that are fundamental to an agency authority?

[00:26:38] Speaker 03:
So Your Honor, courts certainly have the obligation to independently interpret statutory provisions.

[00:26:45] Speaker 03:
Supreme Court said that clearly in local right.

[00:26:48] Speaker 03:
But the Supreme Court also said in local right that agency interpretations of statutory provisions have not become entirely irrelevant.

[00:26:57] Speaker 03:
They are still relevant because they may provide guidance to the court as the court is trying to interpret statutory provisions.

[00:27:04] Speaker 03:
I think the court of Skidmore has said even if

[00:27:08] Speaker 03:
Those agency interpretations do not have the power to control the outcome of a case.

[00:27:14] Speaker 03:
They do have the power to persuade.

[00:27:16] Speaker 01:
OK, but your forfeiture argument wouldn't be power to persuade.

[00:27:21] Speaker 01:
It would be, federal circuit, don't even look at this.

[00:27:24] Speaker 01:
You can't look at this.

[00:27:26] Speaker 01:
And by default, whatever the agency says has to go.

[00:27:29] Speaker 01:
It has to survive.

[00:27:32] Speaker 03:
Right, but not because the agency's interpretation is correct or because the agency's interpretation receives deference.

[00:27:38] Speaker 03:
We're not saying that.

[00:27:39] Speaker 03:
What we are saying is the agency's interpretation survives because the petitioners failed to bring their objection to the agency's attention when they had an obligation to do so.

[00:27:51] Speaker 00:
Counsel, doesn't the DC Circuit's rule find some of its underpinnings and how it was created in Chevron itself?

[00:28:00] Speaker 03:
It is not, Your Honor, and we pointed that out in our notice, or I'm sorry, response to petitioners' notice of supplemental authority.

[00:28:08] Speaker 03:
The DC Circuit's forfeiture rule is based on a foundational principle of administrative law that simply says objections to agency action, any type of agency action included in rulemaking, has to be brought to the agency in the first instance so the agency has an opportunity to consider

[00:28:27] Speaker 03:
That foundational rule is not a Chevron rule at all.

[00:28:30] Speaker 00:
Where it's statutory interpretation that is reviewed de novo and given the language in Low Ferbrite, why is that required?

[00:28:40] Speaker 03:
It is required.

[00:28:42] Speaker 03:
And again, those are simply the background principles that support this type of foundational principle.

[00:28:51] Speaker 03:
It's required because it promotes judicial efficiency, for instance,

[00:28:55] Speaker 03:
if an objection, any kind of objection, is brought to the agency.

[00:28:58] Speaker 00:
But if there's no deference given to the agency's interpretation, why would it be required in a circumstance like this for there to be a specific preservation of the statutory question, especially where it does seem like it's a key assumption?

[00:29:15] Speaker 03:
Right.

[00:29:15] Speaker 03:
So again, I think it would be required because what the agency says about the statute is still relevant.

[00:29:24] Speaker 03:
It's not controlling, it doesn't get deference, but it is still relevant.

[00:29:28] Speaker 03:
And if there is such an objection that is based on the interpretation of the statutory provision, during rulemaking it has to be brought to the agency so the agency can opine on it.

[00:29:39] Speaker 04:
Thank you, counsel.

[00:29:40] Speaker 04:
Your time has expired.

[00:29:42] Speaker 04:
Mr. Stimson has two minutes for a bottle.

[00:29:45] Speaker 02:
Thank you, Your Honors.

[00:29:48] Speaker 02:
I'd like to make three points.

[00:29:50] Speaker 02:
The first is to

[00:29:53] Speaker 02:
To revisit the sentence in 111A that talks about the reasonable cost of airfare, as I explained earlier, petitioner's view is the most natural reading of that sentence is that it applies to commercial non-emergent travel.

[00:30:11] Speaker 02:
And a policy concern was raised about the ability of veterans to reach non-department facilities through commercial air travel.

[00:30:23] Speaker 02:
VA has a separate statutory authority at 38 USC 1703 that enables it to cover and pay for services that cannot be obtained at VA facilities.

[00:30:36] Speaker 02:
So if you look at the overall VA statutory regime, that would be a backstop for the type of policy concern that the panel would like for discussion.

[00:30:50] Speaker 02:
Second point is that

[00:30:53] Speaker 02:
On the Regulatory Flexibility Act, there is a specific statutory provision of 5 USC 603 C4 that would have obligated VA to consider an exception for my client's QVA, A, and VAA from the rule.

[00:31:16] Speaker 02:
And they did not receive that consideration because the secretary neglected to consider actual cost data in its possession.

[00:31:25] Speaker 02:
That is something the secretary by statute would have had to consider for them and did not.

[00:31:30] Speaker 02:
And my third point relates to waiver.

[00:31:34] Speaker 02:
The law in the Federal Circuit has been the same since 1986 when the court decided Beard versus General Services Administration.

[00:31:44] Speaker 02:
8.01 of 2nd, 13, 18.

[00:31:48] Speaker 02:
There's no waiver when the resolution of the staff story issue does not require the development of a factual record, the application of agency expertise, or the exercise of administrative discretion, and that's exactly the situation here.

[00:32:03] Speaker 02:
D.C.

[00:32:03] Speaker 02:
Circuit law is totally irrelevant.

[00:32:05] Speaker 02:
Thank you, Your Honor.

[00:32:07] Speaker 04:
Thank you, Counsel.