[00:00:01] Speaker 04:
Our next case for argument is 22-2213 Smith v. McDonough.

[00:00:27] Speaker 01:
Ms.

[00:00:27] Speaker 01:
Andrews, please proceed.

[00:00:29] Speaker 01:
Good morning.

[00:00:30] Speaker 01:
May it please the court?

[00:00:32] Speaker 01:
My name is Elizabeth Andrews, and I'm here this morning on behalf of claimant and appellant, Radio Man Second Class Gregory Smith.

[00:00:42] Speaker 01:
I'd also like to note for the court that the other claimant and appellant in this case is Ms.

[00:00:50] Speaker 01:
Carolyn Clark.

[00:00:51] Speaker 01:
She is the widow of Corporal Roosevelt Clark, and she is not my client.

[00:00:58] Speaker 01:
she has needed the balance of her time for today's purposes to my client.

[00:01:04] Speaker 01:
So really most of my remarks will pertain to them both, but if the panel has questions specifically about her, I will do my best to answer.

[00:01:12] Speaker 01:
I'm familiar, but technically not here as her advocate.

[00:01:17] Speaker 01:
The backlog of veterans benefits determinations was not created by this court.

[00:01:27] Speaker 00:
And this court probably shouldn't be.

[00:01:30] Speaker 00:
Council, we know the problem.

[00:01:32] Speaker 00:
But we only have jurisdiction over decisions.

[00:01:36] Speaker 00:
And we have at least two cases, Maggott and Cook, Patrick, that say a decision is a decision on the merits.

[00:01:45] Speaker 00:
You get the benefits or you don't get the benefits.

[00:01:48] Speaker 00:
And this case doesn't provide that kind of a decision.

[00:01:52] Speaker 00:
It was a remand, right?

[00:01:57] Speaker 01:
What Maggot and Kirkpatrick and Spore all say is that a remand is interlocutory and so cannot be appealed.

[00:02:11] Speaker 01:
The difference here is that the denial of the waiver motion, particularly in Mr. Smith's case, in his view is going to elicit facts that are adverse to him.

[00:02:28] Speaker 01:
And he has this statutory right to waive that and didn't get it, didn't get to do it.

[00:02:34] Speaker 01:
And if that is allowed to proceed without him being able to challenge that, there will be no going back if those adverse facts come out.

[00:02:46] Speaker 01:
Ms.

[00:02:46] Speaker 01:
Clark's slightly different.

[00:02:47] Speaker 01:
She just wants to hurry things along, which we all do.

[00:02:51] Speaker 01:
But I think Mr. Smith is in, his case shows most importantly

[00:02:58] Speaker 01:
why that denial of waivers should be treated collaterally as something independently appealable.

[00:03:08] Speaker 02:
I mean, your problem is as Judge Laurie points out that the cases seem to be directly contrary to your position.

[00:03:16] Speaker 02:
Why isn't the remedy, if there is one, by mandamus on the theory that this remand is unduly delaying the resolution of the claim and because the veterans don't want the remand to occur.

[00:03:33] Speaker 02:
Isn't that the proper procedural vehicle to bring this issue up?

[00:03:39] Speaker 01:
Two reasons, two responses to that, Your Honor.

[00:03:42] Speaker 01:
First of all, mandamus is not a right.

[00:03:45] Speaker 01:
we're looking for a right to appeal.

[00:03:47] Speaker 01:
Second of all, it's not just about delay, as I mentioned.

[00:03:53] Speaker 01:
It's about eliciting adverse facts that could be determinative to the outcome of Mr. Smith's ultimate case.

[00:04:04] Speaker 01:
And you know, look, Maggot and Kirkpatrick and Scor, the language of them says what it says.

[00:04:13] Speaker 01:
However,

[00:04:15] Speaker 01:
None of them involved a denial of a waiver motion.

[00:04:19] Speaker 01:
The procedural setting in them is not the same.

[00:04:22] Speaker 01:
They analyzed remand orders and whether those remand orders granted or denied benefits, which they didn't.

[00:04:30] Speaker 01:
This is under the legacy system.

[00:04:32] Speaker 04:
Respectfully, your argument that those two cases weren't exactly the same motion we made comes up short when those two cases

[00:04:44] Speaker 04:
articulated a broad rule of law, which is it has to be a final decision on the merits.

[00:04:48] Speaker 04:
If it were otherwise, then we would have to one by one decide every single denial of every single motion on appeal.

[00:04:57] Speaker 04:
We'd have to a motion for extension of time, a motion for more pages, a motion for whatever.

[00:05:01] Speaker 04:
You could say, my client's prejudice, we didn't get more pages.

[00:05:03] Speaker 04:
My client's prejudice, we didn't get more time.

[00:05:05] Speaker 04:
I understand those things are not as serious a prejudice as people are going to suffer in this particular case.

[00:05:13] Speaker 04:
There's a reason that precedent exists.

[00:05:15] Speaker 04:
And when we have precedent that says it has to be the denial of a motion or a decision that affects the merits, as an appellate court, we have no choice but to follow that.

[00:05:24] Speaker 04:
That's the concept of precedent.

[00:05:26] Speaker 04:
So I don't think that you're saying, well, this is a different kind of motion than those motions.

[00:05:31] Speaker 04:
It's very effective when the sweep of the decision in those cases is very broad.

[00:05:37] Speaker 01:
It is, but the procedural setting is different.

[00:05:39] Speaker 01:
I do understand your honor's slippery slope concern.

[00:05:43] Speaker 01:
And we wrestled with that a lot on our side.

[00:05:46] Speaker 01:
But the distinction that the court can make, the court could make a ruling very narrow to denial of waiver motions in terms of determining what's appealable.

[00:05:55] Speaker 04:
But we can't, because we've got two precedents that says we can only consider final decisions when they go to the merits.

[00:06:02] Speaker 04:
So we can't.

[00:06:03] Speaker 04:
There's no way.

[00:06:04] Speaker 04:
Even if I really wanted to do, if I was 100% on board wanting to do what you're asking for, I can't.

[00:06:10] Speaker 04:
I mean, I'm bound by law, and precedent is law.

[00:06:13] Speaker 04:
So you can challenge this with the in-bank court.

[00:06:16] Speaker 01:
Preston is law, Your Honor.

[00:06:19] Speaker 01:
But I would just point out that the procedural setting is different.

[00:06:23] Speaker 01:
I understand the broad principles of law that those cases are articulating.

[00:06:29] Speaker 01:
But none of them involved a situation where the interim order should be a final order, in my view.

[00:06:36] Speaker 01:
But we'll call it interim order.

[00:06:38] Speaker 01:
None of them was going to be outcome determinative.

[00:06:41] Speaker 01:
It's one thing to say, well,

[00:06:43] Speaker 01:
I need more pages or I'll lose," or something like that.

[00:06:46] Speaker 01:
But eliciting adverse facts, that's a very important distinction.

[00:06:52] Speaker 01:
That was not the case with the interim orders being considered in those other three cases I mentioned, Maggot and Kirkpatrick and SCORE.

[00:07:05] Speaker 01:
Remand is a legitimate process in theory, and it certainly helps a lot of people.

[00:07:11] Speaker 01:
But it can mean being sent into the wilderness for a long time.

[00:07:15] Speaker 01:
And as I've mentioned many times, in Mr. Smith's considered view, it may even elicit facts that will make him lose.

[00:07:23] Speaker 01:
And this court's interpretation of the finality requirements in the two relevant statutes

[00:07:30] Speaker 01:
7252 and 7266, it does need to be informed by those kinds of considerations.

[00:07:39] Speaker 01:
If the court doesn't let itself be informed by those considerations, the court's really not going to effectuate the statute's intent, which is to eliminate the merry ground, just like any interlocutory appeal statute.

[00:07:53] Speaker 01:
We're trying to waive the merry ground, and in the Axon case,

[00:07:58] Speaker 01:
Justice Kagan said for a unanimous court, you got to look at the interaction between the alleged injury and the timing of reveal.

[00:08:06] Speaker 00:
If I understood your argument earlier, it was in part that remand might turn up facts unfavorable to, I think, Mr. Smith.

[00:08:17] Speaker 00:
And that suggests that you want the case decided on less than all the relevant evidence, which doesn't seem like a very good idea in terms of justice.

[00:08:30] Speaker 01:
Let's talk about Mr. Smith's exact facts.

[00:08:33] Speaker 01:
May I tease that out a little bit, Your Honor?

[00:08:36] Speaker 01:
he's got this offset of voluntary separation incentive pay.

[00:08:43] Speaker 01:
And essentially, he got incentive pay to quit the military early, and then the VA essentially deducted that from his disability benefits much later in time.

[00:08:58] Speaker 01:
And what the board wanted more information for is they wanted a fact-finding on the income tax, whether he paid income tax on that

[00:09:06] Speaker 01:
essentially severance payment or not on his SSB.

[00:09:10] Speaker 01:
I don't know if he did or didn't.

[00:09:12] Speaker 01:
Honestly, it was a long time ago.

[00:09:13] Speaker 01:
It's not clear whether he did or didn't.

[00:09:16] Speaker 00:
You know, we have no jurisdiction over facts at all.

[00:09:20] Speaker 00:
That's right.

[00:09:20] Speaker 00:
You are getting deep into facts.

[00:09:23] Speaker 00:
The ultimate question is whether we have jurisdiction over the appeal at all.

[00:09:27] Speaker 00:
That's right.

[00:09:28] Speaker 01:
It goes to finality, is why I was getting into these facts.

[00:09:33] Speaker 01:
And the question of finality is what is it before?

[00:09:36] Speaker 01:
this court.

[00:09:39] Speaker 01:
I just want to quote again from something in our reply brief, which is that when it becomes impossible to remedy, I'm quoting Justice Kagan here, when it becomes impossible to remedy the party's harm once the proceeding is over, which is when appellate review kicks in, a proceeding that has already happened cannot be undone.

[00:10:03] Speaker 01:
That matters for both the time considerations and the adverse facts that we were concerned about, which may or may not be elicited, but they could be.

[00:10:17] Speaker 01:
And he does have a statutory right to waive that.

[00:10:20] Speaker 01:
I do want to reserve five minutes for rebuttal, so I will reserve that time.

[00:10:25] Speaker 01:
Thank you.

[00:10:25] Speaker 01:
OK, Ms.

[00:10:25] Speaker 01:
Andrews.

[00:10:26] Speaker 04:
That's great.

[00:10:26] Speaker 04:
Mr. Carhart.

[00:10:46] Speaker 03:
May it please the Court.

[00:10:48] Speaker 03:
Under this Court's precedent, the Board's decision that gives rise to jurisdiction under Section 7252 must either grant or deny a benefits request.

[00:10:56] Speaker 03:
Here, the Board did not grant or deny a benefits request, so the Board did not issue a decision under Section 7252 that the Veterans Court could permissibly review.

[00:11:05] Speaker 03:
The Veterans Court's decision should be affirmed.

[00:11:08] Speaker 02:
Is there a potential remedy by mandamus?

[00:11:11] Speaker 02:
on the theory that the remand is unduly delaying the proceeding?

[00:11:15] Speaker 03:
Yes, Your Honor, there is.

[00:11:17] Speaker 03:
Not conceding that the facts here would give rise to that remedy, but yes, this Court's set forth the standard for the Veterans Court to apply to those sorts of petitions, and the claimants here have chosen not to pursue that route.

[00:11:31] Speaker 03:
I want to address a couple points that, I'm happy, of course, to discuss this Court's precedent, but also to address a couple points that Ms.

[00:11:39] Speaker 03:
Andrews made in her

[00:11:41] Speaker 03:
in her argument.

[00:11:43] Speaker 03:
First, on Smith, the idea that the remand might elicit adverse facts.

[00:11:48] Speaker 03:
It's important to emphasize that Smith is a case about an offset.

[00:11:53] Speaker 03:
The VA is duty-bound under 10 USC 1174 to calculate offsets under certain circumstances.

[00:12:01] Speaker 03:
And the board is acting consistent with that duty here.

[00:12:07] Speaker 03:
I'm not sure exactly what bad facts that Ms.

[00:12:12] Speaker 03:
Andrews was referring to.

[00:12:14] Speaker 03:
But generally speaking, the board has to... I mean, I can guess.

[00:12:18] Speaker 04:
She's worried that federal income tax was not, in fact, withheld.

[00:12:21] Speaker 04:
And therefore, the offset's going to be bigger, and he's going to have to pay more back, pay more.

[00:12:26] Speaker 04:
That's what I'm guessing.

[00:12:27] Speaker 04:
She said she doesn't know I take her at her word, but why would

[00:12:30] Speaker 04:
He wanted to send it back for that purpose.

[00:12:32] Speaker 03:
So if that's the case, I mean, I think he's probably free to concede that point for evidentiary purposes.

[00:12:37] Speaker 04:
Why would he want to concede it?

[00:12:39] Speaker 04:
He doesn't want to concede it.

[00:12:40] Speaker 04:
He'd rather you have to prove it or not prove it, but whatever.

[00:12:44] Speaker 04:
He doesn't want to give the money back.

[00:12:46] Speaker 03:
The board has a duty to follow the procedure set forth in the statute.

[00:12:50] Speaker 03:
And that's what the board was doing here.

[00:12:52] Speaker 03:
It was remanding so that it could gather facts that it found necessary.

[00:12:56] Speaker 04:
But can't, by statute, can't a veteran waive the duty to assist?

[00:13:00] Speaker 03:
So I think there's a real question about that.

[00:13:04] Speaker 03:
A, B, and I'll get back to that.

[00:13:07] Speaker 04:
That would be useful because your concept that there's a question about it probably doesn't fully flesh it out for me.

[00:13:12] Speaker 03:
I understand.

[00:13:14] Speaker 03:
But I also want to emphasize that Smith is not really, I don't think the VA was remanding under the duty to assist.

[00:13:20] Speaker 03:
I think it was remanding to carry out its duties under 10 USC 1174.

[00:13:24] Speaker 04:
What about Clark?

[00:13:25] Speaker 03:
So Clark is a more typical duty to assist case.

[00:13:30] Speaker 03:
So a couple responses.

[00:13:33] Speaker 03:
First of all, there is a statutory duty under 5103A to remand under certain circumstances to correct duty to assist heirs.

[00:13:43] Speaker 03:
That's 5103A, subsection F.

[00:13:48] Speaker 03:
I'm not aware of any board guidance or any veterans court guidance that specifically resolves this question of whether the board even has authority to essentially allow the veteran to waive this duty to assist, notwithstanding the statutory duty under 5103A.

[00:14:09] Speaker 03:
There's also a similar regulation that similarly requires remand correct heirs under certain circumstances.

[00:14:15] Speaker 03:
So that's one question.

[00:14:17] Speaker 03:
The second question.

[00:14:18] Speaker 04:
Well, one thing that is a little concerning is you started by conceding that they could at least request mandamus under the notion that remanding will potentially cause a dramatic long amount of time.

[00:14:31] Speaker 04:
Like imagine a veteran who has, imagine, we're not in this fact pattern, but imagine a veteran who's very unwell.

[00:14:39] Speaker 04:
and imminently could die and will therefore lose his benefits.

[00:14:44] Speaker 04:
Because that's the big thing that drives me crazy in these cases is veterans can pursue their benefits, and the VA can sometimes take years and years and years to process them.

[00:14:54] Speaker 04:
They don't get those benefits.

[00:14:55] Speaker 04:
And if the veteran happens to die before they finally decide he was worthy of benefits or she was worthy of benefits, the benefits go up in smoke.

[00:15:02] Speaker 04:
And so you can imagine a scenario in which they say, OK, I don't want your assistance

[00:15:06] Speaker 04:
Your assistance will mean I don't get benefits, because I might die in the meantime.

[00:15:09] Speaker 04:
And I actually just need to decide my case.

[00:15:11] Speaker 04:
And I think the facts presented are adequate for you to do so.

[00:15:15] Speaker 04:
So you understand where I'm going.

[00:15:18] Speaker 04:
This is my concern.

[00:15:19] Speaker 03:
Yes, she says more.

[00:15:21] Speaker 03:
I understand.

[00:15:23] Speaker 03:
I continue to maintain that mandamus is a remedy for undue delay under appropriate circumstances.

[00:15:29] Speaker 03:
There's no doubt about that under this court's precedent.

[00:15:31] Speaker 04:
There's a separate question.

[00:15:34] Speaker 04:
The mandamus in this case were, no, I'm waiving my right to assistance because my death is imminent.

[00:15:41] Speaker 04:
I'm going to lose these benefits.

[00:15:42] Speaker 04:
Otherwise, the whole thing is pointless.

[00:15:43] Speaker 04:
You've taken so long.

[00:15:44] Speaker 04:
You dragged your feet for five years.

[00:15:46] Speaker 04:
No, don't send it back to assist.

[00:15:48] Speaker 04:
If your position is that by statute, the VA has no choice but to assist.

[00:15:53] Speaker 04:
If your position is the statute does not afford waiver.

[00:15:57] Speaker 04:
And how is mandamus actually a remedy under those circumstances?

[00:15:59] Speaker 04:
How could it ever be a remedy?

[00:16:01] Speaker 03:
Well, the mandamus theory wouldn't be about the remand.

[00:16:04] Speaker 03:
It would be about undue delay.

[00:16:06] Speaker 04:
So even if remand... Yes, but can we cause the board to waive a statutory obligation pursuant to undue delay theories?

[00:16:14] Speaker 04:
Of course not.

[00:16:15] Speaker 04:
So you've created a scenario where mandamus is not legally possible.

[00:16:20] Speaker 03:
I don't think I agree with that, Your Honor, because I think the way that remand is done still can be reviewed.

[00:16:26] Speaker 03:
And if the effect of a remand is to cause undue delay under the well-established standards governing mandamus, then the claimants would have a remedy.

[00:16:35] Speaker 02:
Again, I don't think the board... In the context of mandamus, they would be arguing we have a right to waive the remand.

[00:16:43] Speaker 02:
And in the course of the mandamus proceeding, the court would determine whether, in fact, there is such a right to waive the remand or not, correct?

[00:16:50] Speaker 02:
That's right.

[00:16:52] Speaker 03:
That's right.

[00:16:52] Speaker 03:
So that would be one question.

[00:16:53] Speaker 03:
And another question would be, even if there

[00:16:56] Speaker 03:
is whether or not there is or is not a right to waive the remand, undue delay is still a cause for granting a mandamus petition.

[00:17:07] Speaker 03:
So if there's been undue delay, whether it's the product of remand or something else, that's a viable theory.

[00:17:13] Speaker 04:
That last part doesn't seem right if we were to conclude that they don't have a right to waive remand.

[00:17:20] Speaker 04:
If they don't have a right to not waive remand, but waive the duty to assist.

[00:17:26] Speaker 04:
And how could we ever, if you're right, there's no right to waive the duty to assist, how do we ever grant mandamus for undue delay?

[00:17:35] Speaker 03:
I think you would say that even if the remand was required, it was done in a manner that caused undue delay.

[00:17:43] Speaker 03:
So remands can take a week, or they can take a year, or they can take 10 years.

[00:17:46] Speaker 03:
And there might be a difference depending on how long the remand takes.

[00:17:50] Speaker 04:
We can't allow them to waive the duty to assist.

[00:17:52] Speaker 04:
We can just say you're taking too long with the duty to assist.

[00:17:55] Speaker 04:
We would not be granting the mandamus they request, which is not having it remanded at all.

[00:18:01] Speaker 04:
You're proposing a totally different mandamus.

[00:18:04] Speaker 03:
I think the theory would be undue delay.

[00:18:06] Speaker 03:
That's right.

[00:18:07] Speaker 02:
But if you're wrong and they have a right to waive and there were a mandamus proceeding, we would say, yes, you should issue a writ of mandamus because they had a right to waive and therefore they went.

[00:18:18] Speaker 02:
The question of whether they have a right to... The question of the right to waive could be determined in the mandamus proceeding, right?

[00:18:26] Speaker 03:
It could be, yes.

[00:18:28] Speaker 03:
I think it could be.

[00:18:29] Speaker 03:
Now I just want to make one point though.

[00:18:31] Speaker 03:
Even assuming that the board has authority to grant these motions under certain circumstances, it doesn't follow that they always have to grant a motion to waive.

[00:18:42] Speaker 03:
And there might be circumstances

[00:18:44] Speaker 04:
Like the Mr. Smith circumstances, but not necessarily the Mrs. Clark circumstance.

[00:18:47] Speaker 03:
Not necessarily, but I do want to make one point about the Mrs. Clark's case too, which is that if you look at her submission to the board, her arguments are factual.

[00:18:58] Speaker 03:
She's arguing about, it's a question about service connection for Mr. Clark's death, whether it was connected to his frostbite that he incurred in surface.

[00:19:08] Speaker 03:
or some other cause of heart disease that led him to pass away.

[00:19:12] Speaker 03:
So what Mrs. Clark is asking for the board to do is to basically forget.

[00:19:19] Speaker 03:
And the board's view is the board's trying to help Mrs. Clark, I think.

[00:19:22] Speaker 03:
It's a fair reading of the board's decision.

[00:19:24] Speaker 03:
It's saying, yes, there's this independent medical examination that

[00:19:28] Speaker 03:
that said there's no service connection, but that examination from the VA wasn't precise enough.

[00:19:32] Speaker 03:
So we want a more precise examination that actually addresses the issues that need to be addressed here.

[00:19:39] Speaker 03:
From the board's perspective, they do not have the information they need to decide whether to grant or deny her claim.

[00:19:45] Speaker 03:
So if the board had said, okay, we're not going to remand, we'll send it straight up to the Veterans Court, the Veterans Court is reviewing for clear error, presumably, some of these fact-specific issues about service connection.

[00:19:57] Speaker 03:
So I think there's some real concerns about how practically that would actually work.

[00:20:03] Speaker 03:
So that's why I wanted to draw a distinction between, first, the question of whether there's authority, and second, how that authority will apply in a given case.

[00:20:10] Speaker 03:
All of this is very much downstream from the jurisdictional issue that disposes of this case under 7252.

[00:20:17] Speaker 03:
But I agree, Judge Dyke, that some of this could be raised in a mandamus petition, and some of these issues could be resolved in that.

[00:20:23] Speaker 00:
Counsel, let me ask a point of clarification.

[00:20:27] Speaker 00:
I may have misspoke moments ago when I said the question is whether we have jurisdiction.

[00:20:33] Speaker 00:
Is it your view that we clearly have jurisdiction to review the CAVC's decision?

[00:20:41] Speaker 00:
The issue is whether they had jurisdiction of the appeal to that court.

[00:20:47] Speaker 00:
Is that basically correct?

[00:20:48] Speaker 03:
Precisely, yes, Judge Larry.

[00:20:50] Speaker 03:
This court has jurisdiction.

[00:20:52] Speaker 03:
In our view, it should exercise that jurisdiction to affirm the Veterans Court's decision

[00:20:56] Speaker 03:
which was based on the premise that the Veterans Court didn't have jurisdiction under 7252.

[00:20:59] Speaker 03:
I just want to briefly address the Axon case that the claimants rely on.

[00:21:06] Speaker 03:
in their reply brief under axon.

[00:21:11] Speaker 03:
It's not a case of an interlocutory view at all.

[00:21:13] Speaker 03:
It's a case about forum selection and administrative proceedings.

[00:21:16] Speaker 03:
And the court's ruling was really based upon this very distinctive type of harm that results from being subject to an unconstitutional proceeding.

[00:21:26] Speaker 03:
The court's opinion goes out of its way to distinguish just protracted agency proceedings in and of themselves as giving rise to interlocutory review.

[00:21:37] Speaker 03:
The court did not want the case to be read in that way.

[00:21:40] Speaker 03:
So we think that case is inappropriate.

[00:21:44] Speaker 03:
I'm happy to answer any other questions the court might have.

[00:21:46] Speaker 03:
There are none.

[00:21:47] Speaker 03:
We ask that the court affirm.

[00:21:48] Speaker 04:
Thank you.

[00:22:01] Speaker 01:
Thank you.

[00:22:01] Speaker 01:
I'd like to address, first of all, your honor's clear concern about this mandamus option, this route.

[00:22:08] Speaker 01:
A couple of points to make in rebuttal there.

[00:22:10] Speaker 01:
First of all, as I said in the opening, courts don't have to grant mandamus.

[00:22:19] Speaker 01:
If you have a right to appeal, then the court does have to take that.

[00:22:23] Speaker 01:
And that's, to me, the whole ball game as to why mandamus is not sufficient.

[00:22:29] Speaker 01:
Second of all, the standard for mandamus and granting a mandamus is higher than it would be if you just directly appealed.

[00:22:37] Speaker 01:
So while it would be better than nothing, I don't deny that, it's not adequate to ensure that you get your rights to get these issues heard.

[00:22:52] Speaker 01:
I also do want to address Axon just a little bit more.

[00:22:56] Speaker 01:
I'm not standing here arguing it's binding authority.

[00:23:00] Speaker 01:
It's a different context altogether.

[00:23:03] Speaker 01:
But it does show how the Supreme Court is thinking about these issues in the real world.

[00:23:11] Speaker 01:
And I just want to emphasize that it's the interaction between the alleged injury and the timing of reveal.

[00:23:20] Speaker 01:
That is clearly important to the Supreme Court.

[00:23:23] Speaker 01:
And arguably, it's more important when you have a catastrophically injured veteran than when you have an accounting firm who doesn't think the SEC should be allowed to exist.

[00:23:35] Speaker 01:
It's more compelling in our case.

[00:23:37] Speaker 01:
Those considerations about a proceeding that's already happened cannot be undone.

[00:23:44] Speaker 01:
And I understand the panel's concerns about finality and how you can't go beyond MAGOT and its general language.

[00:23:55] Speaker 01:
But I would just urge the court to consider that your interpretation of finality should be informed by the real world.

[00:24:05] Speaker 01:
And as Chief Judge Moore was saying, Mr. Smith may not be catastrophically injured, but somebody affected by this decision will.

[00:24:14] Speaker 01:
will be catastrophically injured.

[00:24:17] Speaker 01:
Uh, and, and so we need to make our decisions with that person in mind too.

[00:24:24] Speaker 01:
Um, and I understand that mandamus is a way to help that person, that theoretical person, but it's, it's not good enough is the bottom line in our view.

[00:24:38] Speaker 01:
Um, with that, if you're, if you're honest, have more questions, are these issues, I would love to address them.

[00:24:44] Speaker 04:
Thank you, Ms.

[00:24:46] Speaker 04:
Andrews.

[00:24:46] Speaker 04:
I thank both counsels.

[00:24:47] Speaker 04:
This case is taken under submission.