[00:00:00] Speaker 05:
In our next case, it's number 23, 1577, Pettit versus McNuffin.

[00:00:08] Speaker 05:
Okay, Mr. Carpenter.

[00:00:14] Speaker 05:
Is your client's name Pettit or Petit?

[00:00:16] Speaker 05:
Petit.

[00:00:17] Speaker 05:
Petit, okay.

[00:00:17] Speaker 04:
May it please the court, Kenneth Carpenter, appearing on behalf of Florence Petit.

[00:00:26] Speaker 04:
First matter that I will address is the question of this Court's jurisdiction.

[00:00:30] Speaker 04:
We believe that the Veterans Court made an error of the law and that that is within this Court's jurisdiction to determine whether or not the determination that the administrative position of the Board was substantially justified was made in accordance with law.

[00:00:45] Speaker 04:
When it's here, the record before the Veterans Court does not support that substantial justification determination that there was a reasonable basis in law and fact for such a determination.

[00:00:58] Speaker 04:
In this case, there simply was not.

[00:01:01] Speaker 04:
There was neither a factual basis or a legal basis.

[00:01:05] Speaker 04:
We believe that the decision below

[00:01:09] Speaker 04:
excuse me, we believe that the board's decision below denied Ms.

[00:01:13] Speaker 04:
Petit's continuing CHAMP VA benefits on the basis that she turned 18 and that she was not in an approved full-time course of education.

[00:01:25] Speaker 05:
So I understand what you're saying.

[00:01:28] Speaker 05:
You don't dispute that the government's position before the Veterans Court was substantially justified.

[00:01:34] Speaker 05:
Correct.

[00:01:34] Speaker 05:
Your position is that

[00:01:36] Speaker 05:
their position before the board was not substantially tested.

[00:01:40] Speaker 05:
That's correct.

[00:01:42] Speaker 05:
I guess there seems to me to be a problem with that argument.

[00:01:48] Speaker 05:
First of all, you or whoever was representing Petit at that time didn't make the argument about the statute that was made later before the Veterans Court.

[00:02:04] Speaker 05:
So the government didn't respond to that at that point, but relied solely on regulation.

[00:02:10] Speaker 05:
And the cases likely and others seem to suggest that the government can't be faulted for lack of substantial justification for failing to respond to an argument that wasn't made.

[00:02:26] Speaker 04:
Well, just to clarify, Ms.

[00:02:29] Speaker 04:
Petit appealed pro se, and I was asked by the Pro Bono Consortium to represent her in the briefing.

[00:02:36] Speaker 04:
So I did the briefing, and I focused the briefing on the fact that the board relied upon the age between 18 and 23

[00:02:47] Speaker 04:
that as soon as she turned 18, that that was a bar to continuation of benefits.

[00:02:54] Speaker 05:
But the sense of argument on which you prevail ultimately before the Veterans Court wasn't made before to the board, right?

[00:03:01] Speaker 04:
But no, it wasn't, Your Honor.

[00:03:03] Speaker 04:
There was only one statute involved and three regulations.

[00:03:08] Speaker 04:
And those were the statutes and regulations that were relied upon by the Board.

[00:03:13] Speaker 04:
And neither the statute nor the regulations make any reference to a circumstance in which merely turning 18 and not pursuing a full course of study

[00:03:26] Speaker 04:
constitutes a basis to terminate ongoing educational benefits.

[00:03:31] Speaker 05:
Would you show me where you argue the statutory position to the board?

[00:03:38] Speaker 05:
Before the Veterans Court?

[00:03:41] Speaker 04:
No, the board.

[00:03:43] Speaker 04:
Oh, before the board?

[00:03:44] Speaker 04:
Yeah.

[00:03:45] Speaker 04:
I'm sorry, before the board, Your Honor, she was pro se.

[00:03:49] Speaker 05:
Okay.

[00:03:50] Speaker 05:
It was only later that you became involved.

[00:03:53] Speaker 05:
Okay, so there was no argument before the board about the statutory issue.

[00:03:57] Speaker 05:
So I come back to my question about the... I was in the wrong... Yeah, I understand.

[00:04:04] Speaker 05:
I come back to my question about Blakely and, you know, why would... how could the government be faulted for not responding to an argument that wasn't made?

[00:04:16] Speaker 04:
Well, the board cites in its decision...

[00:04:34] Speaker 04:
at page 79 that in response to the discontinuance of CHAMP VA benefits, the appellant has not argued that she was pursuing an approved course of full-time education or training or that she became personally incapable of self-support prior to age 18 and cites the regulation.

[00:04:56] Speaker 04:
And that was the regulation that was relied upon, and that regulation does not contain either of those two requirements.

[00:05:05] Speaker 04:
That regulation specifically refers to the right to these benefits between age 18 and 23 without any requirement for full-time

[00:05:17] Speaker 04:
enrollment in an educational process.

[00:05:22] Speaker 04:
So this pro se appellant filed a pro se appeal to the Veterans Court.

[00:05:27] Speaker 04:
This young lady then was replayed or agreed to accept the consortium's appointment of counsel and I raised the tri-care issue of the entitlement to benefits through that entire period.

[00:05:41] Speaker 05:
So if I understand what you're saying now is that

[00:05:45] Speaker 05:
the government's argument in reliance on the regulation wasn't substantially justified.

[00:05:51] Speaker 04:
That's correct, John.

[00:05:52] Speaker 04:
And that the regulation is part of the citation to the government's decision in this case, which appears in the record between pages 76, Appendix 76 and 79.

[00:06:10] Speaker 04:
And that bird decision is not supported by the conclusion that the regulations or the statutes compel the termination of benefits.

[00:06:24] Speaker 01:
Okay, suppose you got me on all this.

[00:06:26] Speaker 01:
I'm with you.

[00:06:27] Speaker 01:
Show me the legal error in what the Veterans Court did.

[00:06:31] Speaker 04:
What the legal error was is that the Veterans Court painted with a broad brush and simply said that both the administrative level position and the position before the court were based upon a reasonable basis in fact and the law.

[00:06:52] Speaker 01:
And that was wrong.

[00:06:53] Speaker 01:
And that was wrong.

[00:06:53] Speaker 01:
But why is that a legal mistake?

[00:06:55] Speaker 01:
Why isn't that just their incorrect interpretation of the record?

[00:07:00] Speaker 04:
In the context of IJA, it is the determination by the royal court to deny Ms.

[00:07:11] Speaker 04:
Petit the benefit of IJA for a litigation that she had to bring because of that legal

[00:07:18] Speaker 04:
error and a finding that the government was relieved from responsibility for paying those IJA fees because there was a reasonable basis in fact and law for the board's decision and there simply was not.

[00:07:38] Speaker 03:
I think we're having here is that I think we've held that that's a question application of law to fact that we don't have jurisdiction over.

[00:07:47] Speaker 03:
Am I wrong?

[00:07:49] Speaker 03:
You know, whether the government had a reasonable basis for its position.

[00:07:58] Speaker 04:
I'm sorry, is it your understanding or your reading of the Veterans Court decision on the substantial justification determination?

[00:08:06] Speaker 03:
Well, I'm asking generally outside of this particular case.

[00:08:13] Speaker 05:
Your argument is that the Veterans Court made an error by not separately analyzing the agreements made before the board, which is a misapplication of the Aegis standard, not a law-to-fact issue.

[00:08:28] Speaker 04:
Well, since that requirement, I understand I'm supposed to say yes, Your Honor, but I do not believe the answer is yes.

[00:08:40] Speaker 04:
And the reason that I do not believe that the answer is yes is because that specific language does not appear in the Aegis Statute.

[00:08:49] Speaker 04:
That language of consideration of both comes from the case law.

[00:08:54] Speaker 04:
That is a rule of law that has been created by this court and others that in order to find substantial justification as an exemption from liability under IJA, there must be a determination at both levels.

[00:09:12] Speaker 01:
So the Veterans Court said in its opinion, we understand the law is that we have to consider the justification at the administrative and litigation position level.

[00:09:22] Speaker 01:
We have done so.

[00:09:23] Speaker 01:
Here is our summary of those positions and they summarize the positions as though they were the same.

[00:09:29] Speaker 01:
To follow your theory, which I appreciate, that would be incorrect with respect to the administrative justification, but isn't the Veterans Court's interpretation of the record on what the justification was at the administrative level

[00:09:47] Speaker 01:
question of fact.

[00:09:48] Speaker 04:
If this panel determines that it is a question of fact, then I lose.

[00:09:52] Speaker 04:
There's no question about that.

[00:09:54] Speaker 03:
Don't cases like Stilwell v. Brown hold that this is a question of application of flawed fact?

[00:10:05] Speaker 04:
Yes, but we have a whole series of other cases that this court

[00:10:08] Speaker 04:
court has exercised jurisdiction when this court determined that, in fact, it was a question of law.

[00:10:15] Speaker 04:
And I submit to this court that when we're dealing with an appeal of a veteran's case by a pro se veteran who then appeals to the veteran's court, is forced to litigate an issue that she prevailed on.

[00:10:28] Speaker 04:
There's no argument about she prevailed.

[00:10:31] Speaker 04:
The question is only, was there a substantial justification at both levels?

[00:10:41] Speaker 05:
Let's suppose the government's position before the board is not substantially justified.

[00:10:45] Speaker 05:
Just hypothetically, let's assume that there were no legal fees incurred in connection with the board proceedings since she was pro se.

[00:10:53] Speaker 05:
And under the Supreme Court's decision in K, you can't get legal fees for proceeding pro se.

[00:10:59] Speaker 04:
That's correct.

[00:11:01] Speaker 04:
But the court invited the consortium to find a lawyer that would be willing to do the work pro se.

[00:11:08] Speaker 04:
They found a willing victim.

[00:11:11] Speaker 04:
And I proceeded.

[00:11:12] Speaker 04:
And as such, I became Ms.

[00:11:15] Speaker 04:
Petit's attorney.

[00:11:16] Speaker 04:
And that attorney is entitled to be compensated

[00:11:23] Speaker 05:
except that all those fees were incurred in connection with the

[00:11:30] Speaker 05:
as to which you agree that government's position was substantially justified.

[00:11:35] Speaker 04:
That's correct, Your Honor.

[00:11:36] Speaker 04:
But the legal standard that has been created in the case law is that there must be substantial justification at both.

[00:11:44] Speaker 04:
And I believe that that is an error of law when the court doesn't examine the record below, and the record below has no factual or legal basis to support the conclusion that there was substantial justification in denying

[00:12:00] Speaker 04:
Ms.

[00:12:01] Speaker 04:
Petit.

[00:12:02] Speaker 01:
You're saying it should never have been necessary for the consortium to bring you in and do what you did at the veterans.

[00:12:08] Speaker 01:
Yes.

[00:12:09] Speaker 05:
Thank you very much.

[00:12:10] Speaker 05:
Okay.

[00:12:14] Speaker 05:
Ms.

[00:12:14] Speaker 05:
Goetz.

[00:12:16] Speaker 02:
Good morning, Your Honors.

[00:12:17] Speaker 02:
May it please the court?

[00:12:20] Speaker 02:
I'd just like to emphasize two points, essentially.

[00:12:23] Speaker 02:
As far as the jurisdiction of this court, we talk about questions of law as a shorthand.

[00:12:29] Speaker 02:
But what we actually need is either a question of the validity of some provision of law or interpretation of some provision of law.

[00:12:36] Speaker 02:
In the next court, I think plaintiffs admitted in their brief

[00:12:41] Speaker 02:
The legal standard, as stated by the Veterans Court, was correct.

[00:12:45] Speaker 05:
Yeah, but the problem is what they didn't do, and what the claimed error of law is, that they didn't analyze the government's position before the board, separately.

[00:12:57] Speaker 05:
And the argument is that the cases require that.

[00:13:01] Speaker 02:
Yes, but the Veterans Court did.

[00:13:04] Speaker 02:
First of all, as this Court has already acknowledged, the Veterans Court explicitly said multiple times that the position needed to be justified at the administrative level and before the Veterans Court.

[00:13:14] Speaker 05:
But they didn't analyze the position before the Board.

[00:13:18] Speaker 02:
But they did because the position was the same before the Board and the Veterans Court.

[00:13:23] Speaker 01:
That's what they said.

[00:13:24] Speaker 01:
But is that true?

[00:13:25] Speaker 02:
Yes.

[00:13:26] Speaker 01:
Where in the record can I find what the Board's justification or position was?

[00:13:33] Speaker 01:
Where can I find that?

[00:13:37] Speaker 02:
As far as the Board's position, there's a distinction between its justification and its position.

[00:13:43] Speaker 02:
I don't think there's any dispute that the position here was that

[00:13:47] Speaker 02:
a child for the purposes of this statute was either someone under the age of 18.

[00:13:51] Speaker 02:
Right.

[00:13:52] Speaker 01:
But why did the board have that impression?

[00:13:55] Speaker 01:
That there was a requirement that you be in full-time education.

[00:13:59] Speaker 01:
Why did the board think that?

[00:14:00] Speaker 02:
Well, the board didn't go into the same detailed analysis the Veterans Court did, because at that point, all this was- We were not solely under regulation, right?

[00:14:11] Speaker 03:
Is it in the record?

[00:14:12] Speaker 03:
Could we look at it?

[00:14:14] Speaker 01:
I'll give you a hint.

[00:14:15] Speaker 01:
The best I could do when I was trying to follow it through was on Appendix 77.

[00:14:20] Speaker 01:
And I tried to follow it down, the reasoning, and they cite the regulation.

[00:14:27] Speaker 01:
But then in the very last paragraph says, for Champ VA purposes, pursuit of course of education must be full time.

[00:14:35] Speaker 01:
And then it cites a policy manual that I don't have in the record and I couldn't find.

[00:14:39] Speaker 01:
And I don't know what it is.

[00:14:40] Speaker 02:
Yes.

[00:14:43] Speaker 02:
It doesn't make much sense to expect the board to provide a more detailed explanation here because at this point, Ms.

[00:14:49] Speaker 02:
Petit had never even said that she's entitled because she's a part-time student.

[00:14:54] Speaker 01:
As far as the board... It sounds like you're agreeing with me that it's unjustified.

[00:14:59] Speaker 02:
I'm sorry, I'm not sure I understand.

[00:15:01] Speaker 01:
But the board didn't justify why.

[00:15:03] Speaker 01:
There's nothing in the record telling me why the board thought that Ms.

[00:15:07] Speaker 01:
Petit had to be on a full-time basis.

[00:15:11] Speaker 01:
There's nothing telling me why the board thought that.

[00:15:14] Speaker 02:
No the board didn't get into that question because Ms.

[00:15:16] Speaker 02:
Petit had not raised it.

[00:15:17] Speaker 02:
Ms.

[00:15:18] Speaker 02:
Petit said that terminating benefits at age 18 for non-students and age 23 for students was unfair and outdated because it didn't track with other laws such as the Affordable Care Act.

[00:15:30] Speaker 02:
When she initially challenged the termination of her benefits, she didn't even mention to anyone that she was a part-time student.

[00:15:39] Speaker 02:
She certainly didn't make any argument before the board that as a part-time student she should be entitled.

[00:15:44] Speaker 02:
She had received multiple notices that her benefits were going to terminate unless she showed that she was a student enrolled in a full-time course of study.

[00:15:53] Speaker 02:
and she chose not to do so and she didn't make any argument that it was before the Veterans Court that the argument that she as a part-time student was eligible under the statute was made for the very first time and that's the first time the government responded to that argument.

[00:16:11] Speaker 01:
harsh to for the government to take the position that even though you acknowledge that the board decision was unexplained and unjustified that the there's not going to be a fee award here for no reason other than the pro se veteran I don't know didn't know how to argue this statutory interpretation issue

[00:16:32] Speaker 02:
Well, first of all, the board decision was fully explained and justified.

[00:16:36] Speaker 01:
I thought you just told me it wasn't.

[00:16:38] Speaker 01:
So now we're going back to that.

[00:16:39] Speaker 02:
It did not justify an issue that Ms.

[00:16:42] Speaker 02:
Petit had not challenged.

[00:16:43] Speaker 01:
Okay, but that was the dispositive issue.

[00:16:46] Speaker 02:
Not before the board.

[00:16:48] Speaker 02:
It was before the Veterans Court.

[00:16:49] Speaker 01:
OK.

[00:16:50] Speaker 02:
I'm sorry.

[00:16:51] Speaker 01:
But that was the dispositive issue, right?

[00:16:52] Speaker 01:
That's the one that ended up mattering.

[00:16:54] Speaker 01:
And that's the one the board didn't explain why it was wrong.

[00:16:58] Speaker 01:
It never gave any justification for why it thought that Ms.

[00:17:01] Speaker 01:
Petit had to be full-time enrolled.

[00:17:07] Speaker 02:
It wasn't the dispositive issue at that stage because, I mean, anything could have been the depositive issue, whether she was in fact turning 18, whether she was in fact a student of any kind, whether her father was in fact a veteran.

[00:17:18] Speaker 02:
Anything could have been dispositive, and nobody knew that she was challenging the student aspect of it.

[00:17:24] Speaker 02:
She had not said, I'm a student and I'm entitled to benefits.

[00:17:27] Speaker 02:
How could the board have been expected to follow that?

[00:17:31] Speaker 02:
And as for, you know, you kind of alluded to the fairness of this,

[00:17:36] Speaker 02:
IJA provides that the government, if the government takes a substantially justified position, then a plaintiff isn't entitled for legal fees.

[00:17:43] Speaker 02:
So the question isn't, you know, whether Miss Petit should have been expected to make better arguments pro se.

[00:17:49] Speaker 02:
Nobody's saying that she should have been, you know, as a pro se plaintiff, of course, she's not necessarily going to making the same statutory arguments that her lawyer might.

[00:18:00] Speaker 02:
But the fact is, this court may only award IJA fees

[00:18:03] Speaker 02:
according to the provisions of that statute.

[00:18:05] Speaker 02:
In this case, the government's position, which was consistent throughout, was that a child must either be under the age of 18 or must be a full-time student.

[00:18:15] Speaker 02:
That position was the same throughout the course of proceedings.

[00:18:18] Speaker 02:
It was always substantially justified, and as soon as the question of why a student had to be enrolled full-time came up,

[00:18:25] Speaker 02:
The Secretary provided a full explanation of where that policy came from that the Veterans Court found to be substantially justified.

[00:18:31] Speaker 05:
So substantial justification at the board level is to be determined by what the government could have argued but didn't argue?

[00:18:44] Speaker 02:
The position that the government's taking should be substantially justified and the government should be able to provide reasons.

[00:18:51] Speaker 05:
But at the time... No, but try to answer my question.

[00:18:54] Speaker 05:
Is your position that substantial justifications to be determined by what the government could have argued rather than what it did argue before the war?

[00:19:05] Speaker 02:
No, because if Ms.

[00:19:06] Speaker 02:
Petit had raised these arguments and the government had

[00:19:10] Speaker 02:
withheld its justification.

[00:19:12] Speaker 05:
Even though they had in their back pocket a decent argument, they're to be judged by what they actually said.

[00:19:21] Speaker 02:
Yes, but in the context of what they were responding to.

[00:19:24] Speaker 05:
Again, they can't be... In that connection, why don't you cite the Blakely case?

[00:19:30] Speaker 05:
You're probably not familiar with it, but it seems to support your position that you can't be faulted for failing to respond to an argument that wasn't made.

[00:19:42] Speaker 05:
It's 593 Fed 1337.

[00:19:48] Speaker 02:
Yes, it sounds like we certainly should have cited that case.

[00:19:50] Speaker 02:
That's exactly the situation here.

[00:19:52] Speaker 02:
Substantial justification is determined by the government's position at the time based on the knowledge it had.

[00:19:59] Speaker 02:
And its position was that someone between the ages of 18 to 23 needed to be a fully enrolled student.

[00:20:06] Speaker 02:
It had a good justification for that, but that was not the issue that was in dispute at the board level.

[00:20:11] Speaker 02:
And as soon as it was in dispute, the government provided a full justification that the Veterans Court found satisfactory.

[00:20:17] Speaker 02:
And of course, that is a question that is beyond this court's jurisdiction.

[00:20:21] Speaker 01:
I hear you, but early in that sentence, you repeated again that the board had a good justification for believing that Ms.

[00:20:28] Speaker 01:
Petit had to be full-time enrolled.

[00:20:30] Speaker 01:
But she didn't, and you told me that before.

[00:20:34] Speaker 02:
It didn't explain the full-time versus part-time student.

[00:20:37] Speaker 02:
There was a good justification for that, but nobody had put it into issue, so the board had no reason to explain it.

[00:20:43] Speaker 01:
The board can't be expected to... Did that justification exist anywhere?

[00:20:47] Speaker 01:
Was it written down anywhere before the Veterans Court litigation?

[00:20:51] Speaker 01:
Are you telling me it was in some document somewhere?

[00:20:53] Speaker 01:
Just don't have it?

[00:20:54] Speaker 02:
Well, it was in their policy manual.

[00:20:57] Speaker 01:
The policy manual that was cited, but I have never seen.

[00:21:01] Speaker 02:
Correct.

[00:21:02] Speaker 02:
I'm not sure if the justifications were in writing.

[00:21:05] Speaker 02:
I don't believe they are in the record.

[00:21:07] Speaker 02:
As far as we're aware, nobody had challenged that in court before.

[00:21:12] Speaker 02:
And for the reasons that were made before the Veterans Court, in a provision of the same statute, it mentions that if someone who was a full-time student becomes disabled, they should still get their benefits.

[00:21:23] Speaker 02:
There were a lot of context clues that suggested that a student meant a full-time student.

[00:21:28] Speaker 02:
The Veterans Court,

[00:21:31] Speaker 02:
saw that that wasn't included in the specific provision.

[00:21:34] Speaker 02:
And so they decided any sort of student is entitled to benefits.

[00:21:37] Speaker 02:
But given all of the things that the Veterans Court went through, the lack of legislative history, the fact that it was consistent with VA's past policies, the fact that it was consistent with other similar statutory schemes, and other provisions of the very same statute,

[00:21:51] Speaker 02:
It was substantially justified for the government to take this position.

[00:21:55] Speaker 02:
But we're getting pretty far into the territory of what is outside of this court's jurisdiction under Stillwell v. Brown in similar cases.

[00:22:02] Speaker 05:
I'm not really seeing that because the argument is that the Barron's court failed to analyze the positions that were taken before the board.

[00:22:17] Speaker 05:
and that was a legal error under the IJA statute.

[00:22:25] Speaker 02:
It wasn't an error of interpretation.

[00:22:27] Speaker 02:
It wasn't an error in considering the validity of any provision of law at best.

[00:22:31] Speaker 02:
It was an error in the application of law to fact.

[00:22:34] Speaker 01:
Wait, are you saying that if the Veterans Court wished to do so, they could simply state the requirement for reviewing the EJA request and then never analyze an administrative position again, just simply say, we're not going to do that, and then be protected by our lack of jurisdiction over that?

[00:22:52] Speaker 02:
If this were a case where the court really just stated one legal standard and then blatantly disregarded it, that would be different.

[00:23:00] Speaker 02:
But the fact that we're having this debate shows the Veterans Court was justified in understanding the government's position throughout the administrative proceeding to be the same as the position it took before the Veterans Court.

[00:23:15] Speaker 02:
The Veterans Court had- Wait, wait, wait.

[00:23:16] Speaker 03:
No, couldn't it be?

[00:23:17] Speaker 03:
You've just said it wasn't the same.

[00:23:19] Speaker 02:
The position was always the same.

[00:23:21] Speaker 02:
The only difference was what specific arguments they made to respond to Ms.

[00:23:25] Speaker 02:
Petit's argument.

[00:23:26] Speaker 03:
So the position has changed because the arguments changed.

[00:23:29] Speaker 03:
So it can't be that the positions were the same.

[00:23:33] Speaker 03:
You've just said that the government didn't make that position that it made later.

[00:23:37] Speaker 03:
And the reason why is because the argument wasn't raised.

[00:23:40] Speaker 03:
So it doesn't make sense to say that they did raise it.

[00:23:45] Speaker 03:
not following you.

[00:23:46] Speaker 03:
But are you suggesting, I mean, you have other reasons that you've explained, including the case that Judge Dyke cited.

[00:23:54] Speaker 03:
Maybe it's that the court below should have addressed those issues.

[00:23:59] Speaker 02:
I mean, I certainly think that this case can be resolved based on the fact that the government was not expected to respond to an argument that hadn't been raised.

[00:24:09] Speaker 02:
My only point with regard to the government's position, the position was always that a child had to be under 18 or had to be between 18 and 23 and enrolled in a full-time course of study.

[00:24:19] Speaker 02:
That was always the government's position through until the Veterans Court.

[00:24:22] Speaker 03:
On the dispositive issue, that's the position, the dispositive issue on which she won.

[00:24:29] Speaker 02:
That issue was raised for the first time for the Veterans Court.

[00:24:33] Speaker 02:
So yes, the government did not take a position as to why full-time but not part-time students were eligible at the board state because that was not an issue.

[00:24:43] Speaker 02:
It responded to that the first time at the Veterans Court.

[00:24:46] Speaker 02:
The Veterans Court found that its position was fully justified.

[00:24:49] Speaker 05:
The government cannot... Without analysis of what happened before the board.

[00:24:55] Speaker 02:
Right, because before the board, that issue hadn't been raised yet.

[00:24:58] Speaker 02:
It analyzed the reasons.

[00:25:00] Speaker 05:
Well, they could have said that.

[00:25:01] Speaker 05:
They could have said that we have to consider what happened before the board.

[00:25:05] Speaker 05:
The government didn't make this argument, but it's better to do so, is understandable, because the argument wasn't raised.

[00:25:11] Speaker 05:
They didn't say that.

[00:25:12] Speaker 05:
That's the problem.

[00:25:14] Speaker 02:
They didn't say that.

[00:25:15] Speaker 02:
In this case, since the issue was never raised and analyzed by the board,

[00:25:23] Speaker 02:
I'm not sure why the Veterans Court would be required to point that out when it's very clear from the record.

[00:25:29] Speaker 02:
But in any event, this is not a question of statutory interpretation.

[00:25:32] Speaker 02:
The Veterans Court clearly knew that the position had to be substantially justified at the administrative level as well as before the Veterans Court.

[00:25:41] Speaker 02:
It analyzed the reasons provided before the Veterans Court because that was the first time that this issue was raised and the first time that the government could reasonably have been expected to provide its justification.

[00:25:54] Speaker 02:
And I think taking issue with the way the Veterans Court addressed this would be taking issue at best with its application of law to fact.

[00:26:00] Speaker 05:
There was no misinterpretation of a statute.

[00:26:07] Speaker 02:
Well, in this case, there's nothing in the Veterans Court decision that could be understood to be statutory interpretation to take issue with.

[00:26:15] Speaker 02:
Certainly, plaintiff hasn't pointed out any kind of interpretation that's incorrect.

[00:26:21] Speaker 02:
They just argue that the court didn't analyze the administrative position the way it should have, but a quick look at the record makes clear why that's the case, because at the administrative level, the error that Ms.

[00:26:32] Speaker 02:
Petit is claiming

[00:26:33] Speaker 02:
the issue that she's claiming the government didn't have a substantial justification for hadn't been brought into issue yet.

[00:26:41] Speaker 02:
To find in favor of Ms.

[00:26:42] Speaker 02:
Petit here would be to find that the government has to respond, it has to defend every single aspect of a decision even that hasn't been challenged and that wouldn't be practical.

[00:26:54] Speaker 02:
The Veterans Court

[00:26:57] Speaker 02:
It made a discretionary decision that the government's position was substantially justified.

[00:27:00] Speaker 02:
It provided good reasons for doing so.

[00:27:02] Speaker 02:
It stated the correct legal standard.

[00:27:05] Speaker 02:
And for those reasons, this court should dismiss for lack of jurisdiction or in the alternative, affirm the decision of the Veterans Court.

[00:27:14] Speaker 05:
OK.

[00:27:14] Speaker 05:
Thank you.

[00:27:15] Speaker 02:
Thank you.

[00:27:15] Speaker 05:
Mr. Carpenter, you have a little over three minutes.

[00:27:25] Speaker 04:
I have to confess, I don't understand the government's argument about why the board wasn't required to explain its reasoning before the board.

[00:27:36] Speaker 04:
Congress has always treated the VA system as non-adversary.

[00:27:43] Speaker 04:
And so we have a pro se student coming to court asking why my benefits were terminated.

[00:27:51] Speaker 04:
And now she's told she can't recover under Egypt because she didn't raise the correct issue.

[00:27:58] Speaker 04:
Now, Congress imposed under 7104D a reasons or basis requirement for the board to explain its decisions.

[00:28:07] Speaker 04:
Now, they can't explain under the shield of what she never asked.

[00:28:14] Speaker 04:
She didn't present this argument.

[00:28:16] Speaker 04:
And the same holds true for why this court should not follow the laterly decision, because we are dealing with a non-adversarial system in which benefits were denied, they were taken away unlawfully.

[00:28:33] Speaker 04:
The Veterans Court granted her appeal, and the government's position below was not substantially

[00:28:42] Speaker 04:
justified under any factual basis or under any legal basis.

[00:28:48] Speaker 04:
7104A requires the board to apply all applicable provisions of law and regulation.

[00:28:56] Speaker 04:
That would have meant that they had to apply 3.57, which does not require

[00:29:07] Speaker 04:
termination based upon having turned 18 and in fact expressly says you get the benefits between 18 and 23 and it does not say that you have to be in full time enrollment.

[00:29:22] Speaker 04:
Therefore, they didn't apply the law that was applicable and gave no reasons or basis for why they didn't.

[00:29:32] Speaker 04:
The board's justification is not consistent throughout because there is no justification articulated in those four pages that constitute the board's decision.

[00:29:44] Speaker 04:
They recite the statute.

[00:29:46] Speaker 04:
And they draw a conclusion that they are bound to follow the regulation.

[00:29:58] Speaker 01:
A different case where it was crystal clear that what happened at the board, the positions taken, the justifications, were completely identical to what happened at the Veterans Court.

[00:30:10] Speaker 01:
Suppose that's the facts.

[00:30:12] Speaker 01:
Then later in the EAGA analysis, the Veterans Court says everything was exactly the same.

[00:30:22] Speaker 01:
So we're not going to write two paragraphs repeating the same thing.

[00:30:24] Speaker 01:
That has to be OK.

[00:30:26] Speaker 01:
I would agree.

[00:30:27] Speaker 01:
So then the slippage between that situation and this situation is that, as a matter of fact, that wasn't the case at the board.

[00:30:34] Speaker 01:
That's where I'm getting stuck on the jurisdictional issue, that even if here the Veterans Court made a blatant factual error, is there a special loophole for a blatant factual error in our jurisdiction?

[00:30:49] Speaker 04:
Well, but the basis articulated by the Veterans Court was is that there was a reasonable basis to essentially infer based upon other statutes and regulations that what it did was okay.

[00:31:05] Speaker 04:
I'm saying based upon the statutes,

[00:31:08] Speaker 04:
the single statute and the three regulations, this court cannot find within them any requirement for termination of benefits based upon having turned age 18 or any basis for terminating basis because you are not in a full-time program.

[00:31:27] Speaker 04:
There are, I have found in the statute a subsection

[00:31:45] Speaker 04:
at 38 USC 1781 C that does use the language of pursuit of full-time course of instruction.

[00:31:57] Speaker 04:
However, that statute and the corresponding regulation that is cited and parroted

[00:32:03] Speaker 04:
Exactly, with what's in the statute, applies to a very narrow circumstance where a person is between age 18 and 23 and has been following and is injured.

[00:32:17] Speaker 04:
That's the plain language of that.

[00:32:18] Speaker 04:
That's an exception where you add that additional requirement.

[00:32:23] Speaker 04:
That additional requirement...