[00:00:00] Speaker 00:
So we will actually hear oral argument in number 231083, Terpak versus McDonough.

[00:00:07] Speaker 00:
Mr. Steinmetz.

[00:00:08] Speaker 02:
Thank you, Your Honor.

[00:00:08] Speaker 02:
May it please the court.

[00:00:10] Speaker 02:
Your Honors, we're here today because the Veterans Court decided that Ms.

[00:00:15] Speaker 02:
Terpak was not entitled to the board hearing that she requested, even though the board itself never made that determination.

[00:00:23] Speaker 02:
Your Honors, it is undisputed.

[00:00:25] Speaker 02:
that in January of 2020, Ms.

[00:00:27] Speaker 02:
Turpak filed a notice of disagreement in which she explicitly requested a board hearing.

[00:00:32] Speaker 02:
And it is undisputed that the board never addressed that notice of disagreement.

[00:00:37] Speaker 02:
The board has never said that that notice of disagreement from January, 2020 is invalid.

[00:00:42] Speaker 02:
Instead, two and a half years after she filed that notice of disagreement, the veterans court, a single judge deciding in the first instance, declared that it was invalid.

[00:00:54] Speaker 02:
But the Veterans Court is a court of appellate review, Your Honors.

[00:00:57] Speaker 02:
Without a board decision on the notice of disagreement that she filed in January, 2020, the Veterans Court exceeded its jurisdiction in deciding in the first instance that that notice of disagreement was invalid.

[00:01:10] Speaker 02:
When Ms.

[00:01:10] Speaker 02:
Turpack sought panel review to correct that overreach, the court, the Veterans Court, acting sua sponte contrary to its statutory authority and contrary to its own rules,

[00:01:22] Speaker 02:
changed her request from a panel review request into a single judge reconsideration request, sent it back to the same judge.

[00:01:29] Speaker 02:
That judge granted reconsideration, recognizing error.

[00:01:32] Speaker 01:
Are you contending, though, that there are no internal operating procedures that would allow this sort of single judge reconsideration?

[00:01:39] Speaker 02:
No, we are contending that there certainly is an internal operating procedure that purports to allow it.

[00:01:43] Speaker 02:
The question is whether the application of that internal operating procedure is consistent with the sua sponte authority of the court, as controlled by section 7261 and this court's holding in Dixon, as well as the court's own rules, rule 35, under which Ms.

[00:01:59] Speaker 02:
Turpack requested panel review.

[00:02:02] Speaker 02:
Rule 35, for example, lays out three options for a litigant to request review of a single-judge decision.

[00:02:08] Speaker 02:
One of them is single-judge reconsideration.

[00:02:11] Speaker 02:
The second one is panel review, and the third one is a hybrid reconsideration and panel review.

[00:02:16] Speaker 02:
And then 35G says what should happen for each of those.

[00:02:19] Speaker 02:
It says that the panel review request should go to a panel.

[00:02:22] Speaker 02:
That's not what happened here.

[00:02:23] Speaker 02:
Instead, the court, Sue Espante, acting on its own, forwarded the panel review request

[00:02:32] Speaker 02:
to the single judge who dismissed it as moot and then granted reconsideration.

[00:02:36] Speaker 02:
Now, Ms.

[00:02:37] Speaker 02:
Tupac could have requested reconsideration.

[00:02:39] Speaker 02:
She did not.

[00:02:40] Speaker 02:
She chose panel review, which is the issue that, you know, this is the problem with the court's acting sua sponte and changing her request.

[00:02:49] Speaker 02:
So we're not contending that the internal operating procedure doesn't report to allow this.

[00:02:53] Speaker 02:
What we're contending is that it's inconsistent with the statute and with the court's own rules.

[00:02:58] Speaker 02:
But if I could return to the issue of the Veterans Court acting in the first instance, this court has made clear on a number of occasions, and I'll cite the Hensley case from 212, F3, 1255, where this court confirmed that the Court of Appeals for Veterans Claims is a court of appellate review, and a court of appellate review can only review that which has happened before.

[00:03:20] Speaker 02:
In this case, there has been no decision from the board, none at all.

[00:03:25] Speaker 02:
on the validity or invalidity of the January 2020 notice of disagreement.

[00:03:30] Speaker 02:
That's undisputed.

[00:03:31] Speaker 02:
In fact, the Veterans Court conceded in both of its opinions that the board never addressed that filing.

[00:03:38] Speaker 02:
So how did the Veterans Court reach that decision?

[00:03:41] Speaker 02:
Well, it did backwards reasoning, Your Honor.

[00:03:44] Speaker 02:
It reasoned that based on the statute, there's no possible way that the board could find that it was valid.

[00:03:52] Speaker 02:
If I would be permitted an analogy, that would be as if this court were reviewing a decision from a district court or a patent trial on appeal board on obviousness.

[00:04:01] Speaker 02:
When the court didn't reach the obviousness question, this court just declares that a patent is obvious and the district court or PTAP couldn't find otherwise.

[00:04:08] Speaker 02:
That's not this court's role as a court of appellate review.

[00:04:12] Speaker 02:
Similarly here, it was not the Veterans Court's role as a court of appellate review to make a decision

[00:04:18] Speaker 02:
about the invalidity of the January 2020 notice of disagreement.

[00:04:21] Speaker 02:
That was the purview of the board, and the board has never said anything about that.

[00:04:26] Speaker 02:
Now, the reasoning from the judge on that was a conflation of a legal standard with a conclusion of law.

[00:04:34] Speaker 02:
In presenting this argument to the panel review that ultimately went to the single judge for reconsideration,

[00:04:42] Speaker 02:
Ms.

[00:04:42] Speaker 02:
Turpack pointed this out by saying that she's not going to dispute what the statute says.

[00:04:47] Speaker 02:
Obviously, the statute says, 5104C, says you can only elect one form of review of a rating decision at a time.

[00:04:55] Speaker 02:
What the statute does not say, Your Honors, is what happens if a veteran does elect a second one at the same time.

[00:05:02] Speaker 02:
In fact, the statute further down says,

[00:05:04] Speaker 02:
that the secretary has the purview to establish procedures for how to handle that situation.

[00:05:09] Speaker 02:
Unsurprisingly, Ms.

[00:05:10] Speaker 02:
Turbeck's not the only claimant to ever make what would you call an error here in filing for concurrent relief.

[00:05:18] Speaker 02:
But the Veterans Court reasoned that because she agreed on what the statute says, that constituted an admission that her January 2020 notice of disagreement

[00:05:30] Speaker 02:
was invalid, and that the board couldn't possibly see it otherwise.

[00:05:34] Speaker 02:
That conclusion on that legal question, which is bound up with a number of factual questions about what her intent was at the time that she filed it, and other factual questions as well, that's a legal conclusion separate from what the legal standard is.

[00:05:48] Speaker 02:
And the veterans court conflated those two things, conflated the legal standard with the legal conclusion on the validity of that particular filing.

[00:05:59] Speaker 02:
Now, there's a lot of argument.

[00:06:01] Speaker 00:
Yes?

[00:06:01] Speaker 00:
Can I just ask this?

[00:06:02] Speaker 00:
Is the impermissible overlap of the appeal and the higher level review request?

[00:06:10] Speaker 00:
Higher level review request.

[00:06:11] Speaker 00:
Is that waivable?

[00:06:12] Speaker 00:
I mean, by the board?

[00:06:14] Speaker 02:
So Your Honor, this goes to the- Excusable.

[00:06:17] Speaker 00:
I don't know what the right term is.

[00:06:18] Speaker 02:
Sure.

[00:06:18] Speaker 02:
This goes to the immense amount of harmless error arguments that are in the Veterans Court decisions and in the Secretary's briefing.

[00:06:27] Speaker 02:
I emailed opposing counsel about this this morning and prepared for this argument.

[00:06:31] Speaker 02:
We have found instances in which the board has just proceeded on a notice of disagreement, even if it were improperly filed concurrently.

[00:06:38] Speaker 02:
And I can file a Rule 28j letter with an example of that.

[00:06:42] Speaker 02:
We found instances in which the board has considered the notice of disagreement to be a withdrawal of the earlier higher level review request.

[00:06:52] Speaker 02:
The notion that if this court does what we're asking it to do, which is send us back to the Veterans Court with instructions to remand to the board to determine, to grapple with, to consider that January 2020 notice of disagreement, the notion that that's harmless error, that there's nothing the board could do other than simply rubber stamp it and declare it invalid, just as the Veterans Court has done, is incorrect.

[00:07:15] Speaker 02:
The board would have a number of options at its disposal at that point.

[00:07:19] Speaker 02:
As I said, it could consider the notice of disagreement to be withdrawal of the higher level review request.

[00:07:23] Speaker 02:
It could simply excuse, directly Your Honor's question, it could simply excuse the veteran for taking that action as the statute does not say that the notice of disagreement is automatically invalid.

[00:07:38] Speaker 02:
And to further the point on the prejudice, Your Honor, even accepting the premise from the Secretary and from the Veterans Court,

[00:07:45] Speaker 02:
that the only thing the board could do would be to declare it invalid.

[00:07:49] Speaker 02:
We would disagree with that premise, as I just said.

[00:07:51] Speaker 02:
But even accepting that premise, it does not follow that it is so obviously invalid that Ms.

[00:07:57] Speaker 02:
Turpeck did not need to be told that at the time.

[00:08:00] Speaker 01:
Did the Veterans Court find the argument regarding the January 22 notice of disagreement to be forfeited?

[00:08:06] Speaker 02:
The Veterans Court found that the argument regarding what her intent was when she filed the notice of disagreement

[00:08:14] Speaker 02:
based on the later evidence.

[00:08:17] Speaker 02:
There were a number of notices of disagreement that were filed.

[00:08:20] Speaker 02:
So the January 22nd, when she elected the board decision, she then filed another one in which she didn't elect it.

[00:08:26] Speaker 02:
The Veterans Court found that the argument regarding whether her later intent was to be imputed to the earlier notice of disagreement to be forfeited and the argument about whether it constituted a withdrawal

[00:08:39] Speaker 02:
of the higher level review request to be forfeited.

[00:08:42] Speaker 02:
But the core question before the Veterans Court was whether or not she had requested a hearing.

[00:08:49] Speaker 02:
And the Veterans Court determined that because her notice of disagreement was invalid, she had not requested a hearing.

[00:08:56] Speaker 02:
She had never requested a hearing.

[00:08:58] Speaker 02:
And our argument is that the Veterans Court did not have the jurisdiction to declare that the notice of disagreement was invalid.

[00:09:05] Speaker 02:
That was a decision

[00:09:06] Speaker 02:
for the board to make in the first instance.

[00:09:09] Speaker 02:
And the Veterans Court overreached by simply declaring it invalid and then saying the fact that the board didn't declare it invalid is harmless error because there's no possible way the board could find otherwise because the statute only allows a veteran to elect one.

[00:09:25] Speaker 02:
And we're saying, Your Honors, that if this goes back to the board and the board has to consider the January 22, 2020 notice of disagreement, which it has never done,

[00:09:34] Speaker 02:
the board has a number of options to continue to help Ms.

[00:09:38] Speaker 02:
Turpack and to give her a board hearing.

[00:09:41] Speaker 01:
If I could... Can you respond to also some of the jurisdictional arguments that were raised by opposing counsel?

[00:09:47] Speaker 02:
Sure.

[00:09:48] Speaker 02:
I think there were... Would you like me to respond on the on the Suicponte issue or on the on the first instance issue?

[00:09:56] Speaker 02:
I think there were jurisdictional arguments raised as to both.

[00:09:58] Speaker 02:
I can address both.

[00:10:00] Speaker 01:
You can address both.

[00:10:01] Speaker 02:
Sure.

[00:10:02] Speaker 02:
The secretary's argument is that for both issues, the secretary is arguing that there's agreement on the statute and that we're challenging the internal operating procedures for both issues that are raised in the briefing, Your Honor.

[00:10:13] Speaker 02:
The challenge is to the scope of the Veterans Court's authority.

[00:10:16] Speaker 02:
For the issue that we've been discussing, the first instance issue, the question is whether or not the Veterans Court as a court of appellate review has the authority, the jurisdiction, to rule on issues, not an issue of how to interpret a law.

[00:10:30] Speaker 02:
But an issue of whether a specific filing on January 22nd, 2020 was invalid, that's a question of the scope of the Veterans Court's authority.

[00:10:39] Speaker 02:
And this court has repeatedly said that when a litigant is challenging the scope of the Veterans Court's jurisdiction and whether the Veterans Court has exceeded that jurisdiction, that's a question of law that is well within this court's jurisdiction to review.

[00:10:53] Speaker 02:
I'll cite the Tadlock case for this.

[00:10:54] Speaker 02:
This is in the briefing.

[00:10:56] Speaker 02:
It's Tadlock.

[00:10:58] Speaker 02:
is 5F4 1327 at 1332.

[00:11:01] Speaker 02:
That's a Federal Circuit decision in 2021.

[00:11:05] Speaker 02:
But it appears in a number of decisions from this court.

[00:11:08] Speaker 02:
Similarly, on the Suez-Bonte issue, that's a question that's a challenge to the courts exceeding the scope of its authority under the statute.

[00:11:17] Speaker 02:
The statute says that it's limited to only deciding issues when presented.

[00:11:22] Speaker 02:
We're challenging that the court decided an issue that was not presented, specifically

[00:11:28] Speaker 02:
a request for the single judge to reconsider his prior opinion.

[00:11:32] Speaker 02:
That was not the request for relief that was granted.

[00:11:35] Speaker 02:
Under the Dixon case, the Dixon court in distinguishing its prior holding in check, the Dixon court said that the Veterans Court does not have the sua sponte authority to decide an issue

[00:11:47] Speaker 02:
and grant relief.

[00:11:49] Speaker 02:
In this case, the Veterans Court, sua sponte, granted single-judge reconsideration when neither party presented that request.

[00:11:59] Speaker 02:
So before I reserve the balance of my time, unless Your Honours have any other further questions, I'll reserve the balance of my time for rebuttal.

[00:12:06] Speaker 00:
Thank you.

[00:12:19] Speaker 03:
may please the court.

[00:12:20] Speaker 03:
This tear pack challenge is a procedural step taken by the Veterans Court and the Veterans Court's harmless error determination based on a finding in the Veterans Court's decision that has been withdrawn and thus is a nullity.

[00:12:34] Speaker 03:
The court lacks jurisdiction to review harmless error determinations by the Veterans Court and as well as Judge Folley's

[00:12:42] Speaker 03:
Sue Esponte grant of single-judge reconsideration.

[00:12:47] Speaker 03:
Ms.

[00:12:48] Speaker 03:
Hereback argues that Judge Falvey acted outside of his authority by granting single-judge reconsideration when she filed a motion for panel review.

[00:13:00] Speaker 03:
We have argued that the court lacks jurisdiction and this

[00:13:04] Speaker 03:
Issue came up in a similar case that's in an unpublished decision of Carter v. Principe, where the Veterans Court had denied a motion for full court review, which is under Veterans Court Rule 35C, finding that it wasn't warranted, and affirmed a single-judge decision.

[00:13:19] Speaker 03:
The court found it didn't have jurisdiction to review that decision because the Veterans Court had not addressed or otherwise the decision didn't depend on the validity or interpretation of a statute.

[00:13:31] Speaker 03:
nor had the veteran raised that.

[00:13:34] Speaker 03:
And here, Ms.

[00:13:35] Speaker 03:
Tirpeck isn't raising a question about the validity or interpretation of a statute on this issue or regulation.

[00:13:43] Speaker 03:
Today we've heard that Ms.

[00:13:44] Speaker 03:
Tirpeck believes that the internal operating procedures of the Veterans Court are inconsistent with Veterans Court Rule 35.

[00:13:52] Speaker 03:
That's a new argument that was never in the briefs.

[00:13:56] Speaker 03:
And in any event, it's simply incorrect.

[00:14:00] Speaker 03:
Rule 35C just simply says the party can move for panel review.

[00:14:03] Speaker 03:
And there's nothing in that rule that appears inconsistent.

[00:14:07] Speaker 01:
It sounded like opposing counsel was also making an argument to the effect of that there was an exceeding statutory authority.

[00:14:16] Speaker 01:
which sounds like a legal argument.

[00:14:17] Speaker 01:
Can you respond to that?

[00:14:18] Speaker 03:
I understand that the question of whether an issue was presented is what Ms.

[00:14:25] Speaker 03:
Tierpak had relied on.

[00:14:27] Speaker 03:
She also relies on the Dixon v. McDonald case.

[00:14:30] Speaker 03:
And that case shows that her argument about the statutory, that the statute does not allow the single judge, Sue Esponte,

[00:14:44] Speaker 03:
reconsideration here.

[00:14:45] Speaker 03:
In Dixon, the court made clear that there was a distinction between two types of Suez-Bonte authority that the Veterans Court has granted itself and one was procedural.

[00:14:56] Speaker 03:
And in that case, it was the fact that the Veterans Court had Sue Esponte requested early briefing on an issue.

[00:15:02] Speaker 03:
That was a procedural step that the court in Dixon did not even consider whether there was an issue presented related to that.

[00:15:11] Speaker 03:
And that was noted in footnote two in Dixon, and also at pages 802 to 803, where Dixon discusses Checo v. Shinseki, saying that the Veterans Court has brought autonomy to establish its own procedural rules

[00:15:25] Speaker 03:
including the ability to identify an issue for early briefing.

[00:15:29] Speaker 03:
So that's the situation we have here versus the second type of Sue Esponte authority that the court noted in Dixon, which was the authority that the Veterans Court assumed to Sue Esponte decide the question of equitable tolling when the secretary had waved the question, waved the issue.

[00:15:52] Speaker 03:
Dickson also noted that when presented, only limits the Veterans Court authority to decide an issue and grant relief, not to request early briefing on it.

[00:16:04] Speaker 03:
So there's no relief here.

[00:16:06] Speaker 01:
Often I'll see that you guys will say lack of jurisdiction or the alternative affirm.

[00:16:16] Speaker 01:
Do you have a preferred path here, and if so, why?

[00:16:20] Speaker 03:
But the lack of jurisdiction based on Carter v. Principe, that there is no question about the validity or interpretation of... That's the non-precedent case that you cited, is that right?

[00:16:32] Speaker 03:
I'm sorry, excuse me, I'm sorry.

[00:16:33] Speaker 03:
That's the non-precedent case you cited, correct?

[00:16:34] Speaker 03:
Yes, correct, Your Honor, yes.

[00:16:36] Speaker 03:
Yes, and that would be the main reason.

[00:16:39] Speaker 03:
There is no question about the validity or interpretation of any statute or regulation that could in any way have been involved with the decision to Sue Esponte grant reconsideration.

[00:16:53] Speaker 03:
But, alternatively, we request the court affirm because there's nothing here that goes outside of the Veterans Court's authority, and there's no prejudicial error either.

[00:17:06] Speaker 03:
has not responded to the point in our brief that there's no prejudice because the Veterans Court in this Judge Falvey, in this reconsidered decision, explained that she could file another motion for panel review.

[00:17:20] Speaker 03:
That's in a footnote on page two.

[00:17:23] Speaker 03:
After the single judge reconsideration, she did not do so, and that second chance that she did not take advantage of means that there was no prejudice to this single judge reconsideration.

[00:17:34] Speaker 03:
And turning to the question of harmless error, the Veterans Court did consider whether the board's not affording a hearing.

[00:17:43] Speaker 01:
Do you have any precedential case you want to point us to that you think kind of guides or might be binding here?

[00:17:52] Speaker 03:
On the question of the board not affording a hearing?

[00:17:55] Speaker 03:
Yes.

[00:17:57] Speaker 03:
Well, the harmless error type case is certainly, in this case,

[00:18:02] Speaker 03:
Ms.

[00:18:02] Speaker 03:
Tierpak agreed with the law, the law that had been stated in the decision of Judge Falvey that he reconsidered.

[00:18:09] Speaker 03:
And in that case, the court's decision in Beckley-Wilkie states that the court's ruling could not have been based on an interpretation that was adverse to the claimant because she agreed with the law.

[00:18:21] Speaker 03:
Much like in that case, I believe the Veterans Court had accepted the claimant's reading of the law.

[00:18:29] Speaker 03:
And in that case, the jurisdictional test of 38 USC 7292 has not been satisfied.

[00:18:37] Speaker 03:
This court stated, in fact, be wealthy.

[00:18:41] Speaker 03:
Moreover, the court has said in Newhouse that it has no jurisdiction to review harmless error determinations by the Veterans Court.

[00:18:49] Speaker 03:
In Tadlock, which Ms.

[00:18:51] Speaker 03:
Tierpak has relied on, where the factual basis is not open to debate,

[00:18:56] Speaker 03:
and the board on remand could not have reached any other determination on the issue.

[00:18:59] Speaker 03:
That's an example of a harmless error determination that the court should find is well-grounded.

[00:19:13] Speaker 03:
Here, Ms.

[00:19:14] Speaker 03:
Tierpak agreed that the Section 5104C

[00:19:24] Speaker 03:
made clear that there were these three lanes of review.

[00:19:28] Speaker 03:
And it stated that you can take one of these actions, but you can't take two at the same time.

[00:19:34] Speaker 03:
And she did not, she accepted that in her motion for panel review.

[00:19:42] Speaker 03:
Given that, Judge Falvey correctly concluded that there was no reason to have the board look at this question because there was no other

[00:19:53] Speaker 03:
no other outcome that would be possible.

[00:19:56] Speaker 03:
Now we've heard for the first time that the board has, according to Mr. Prax Council, sometimes looked at a notice of disagreement that was filed after another type of review was suggested.

[00:20:12] Speaker 03:
That's both a new argument and we don't think it's relevant to the question here.

[00:20:16] Speaker 03:
It's clear that after obtaining the higher level review that she

[00:20:21] Speaker 03:
she wanted and filed a form requesting and that was adjudicated, Ms.

[00:20:29] Speaker 03:
Tierpac then could have chosen a board hearing.

[00:20:32] Speaker 03:
But as shown in Appendix 104, the form that she filled out then was a form for a notice of disagreement seeking direct review, not a board hearing.

[00:20:43] Speaker 03:
And now it's only when she didn't prevail on that direct review without a hearing that she says she should have been afforded a hearing.

[00:20:51] Speaker 03:
based on a form filed after the form seeking higher level review, which she states in the motion for the panel review, she shouldn't have filed.

[00:21:03] Speaker 03:
It was not allowed by 5104C.

[00:21:08] Speaker 03:
The issue of her intent, her ultimate intention, which we've heard about, that was a statement made in the

[00:21:18] Speaker 03:
in Judge Falvey's decision that he granted reconsideration of, and it basically is now withdrawn.

[00:21:26] Speaker 03:
It's a nullity.

[00:21:28] Speaker 03:
There's no reason for the court to consider the language about intent now that there is a new decision from August 2020.

[00:21:37] Speaker 03:
And finally, the question of whether the January 22, 2020

[00:21:45] Speaker 03:
notice of disagreement constituted a withdrawal of her earlier request for higher-level review.

[00:21:52] Speaker 03:
Judge Falvey pointed out that that's not a question that would even be before the Veterans Court or the Board because she raised that question for the first time in her motion for panel review.

[00:22:04] Speaker 03:
She didn't raise it in her opening brief or reply before the Veterans Court.

[00:22:11] Speaker 03:
Given this,

[00:22:13] Speaker 03:
That's not an issue that was even before the Veterans Court at that point.

[00:22:20] Speaker 03:
And in any event, this would simply be incorrect because 540C refers to the three actions that you can take, the three types of review you can seek, and then in a subsequent section refers to the possibility of withdrawing your request.

[00:22:39] Speaker 03:
It doesn't make sense reading that.

[00:22:42] Speaker 03:
statute that a request can also be itself a withdrawal.

[00:22:48] Speaker 03:
And for these reasons we request that the court dismiss Ms.

[00:22:52] Speaker 03:
Herbeck's appeal or alternatively affirm the decision of the Veterans Court if the court has no further questions.

[00:23:00] Speaker 03:
Thank you.

[00:23:08] Speaker 02:
May I please the court?

[00:23:09] Speaker 02:
I'd like to make three points primarily in rebuttal.

[00:23:12] Speaker 02:
The first, I'd like to start with the harmless error issue and the notion that Ms.

[00:23:18] Speaker 02:
Turpak agreed with the statement of the law.

[00:23:21] Speaker 02:
Ms.

[00:23:21] Speaker 02:
Turpak agreed with what the statute says.

[00:23:23] Speaker 02:
It would be somewhat silly for Ms.

[00:23:26] Speaker 02:
Turpak to not agree with what the language of the statute was.

[00:23:29] Speaker 02:
That was presented in her panel review request.

[00:23:31] Speaker 02:
She started her argument by saying that the claimant does not dispute that the statute says X, Y, and Z.

[00:23:38] Speaker 02:
And then she used the word, however, and presented the argument, at least one argument, as to why, even though the statute says that, this should go back to the board to determine whether her January 2020 notice of discretion.

[00:23:52] Speaker 01:
Why didn't she seek another motion for panel decision, right?

[00:23:55] Speaker 01:
Because that was one option that was available to her, right?

[00:23:58] Speaker 01:
Yes, Your Honor.

[00:23:58] Speaker 02:
And that goes to the question of whether the internal operating procedure is creating what we could consider an infinite loop here.

[00:24:07] Speaker 02:
Ms.

[00:24:07] Speaker 02:
Turback had already

[00:24:08] Speaker 02:
requested panel review.

[00:24:11] Speaker 02:
She did not get panel review.

[00:24:12] Speaker 02:
Instead, there was a sui sponte forwarding of that request to the single judge for reconsideration.

[00:24:17] Speaker 02:
The internal operating procedure at issue here says that if she filed another request for panel review, that same procedure gets followed.

[00:24:26] Speaker 02:
In other words, another request for panel review would again be forwarded first to the single judge for reconsideration.

[00:24:33] Speaker 02:
That's in the internal operating procedure.

[00:24:35] Speaker 02:
Could she have filed another request for panel review?

[00:24:38] Speaker 02:
Yes, she could have.

[00:24:39] Speaker 02:
But she wanted to get away from this single judge he had now ruled against her twice on whether she was entitled to a hearing.

[00:24:45] Speaker 02:
And she was requesting panel review the first time.

[00:24:48] Speaker 02:
She didn't get it.

[00:24:49] Speaker 02:
And so the challenge here is that the internal operating procedure simply does not conform to the statutory authority that the Veterans Court has.

[00:24:58] Speaker 02:
If I could address the Carter case for a moment.

[00:25:00] Speaker 02:
Before I do that, Your Honor, just getting back to the point about the harmless error.

[00:25:04] Speaker 02:
The statute says that the veteran is not allowed to file two concurrent forms of review.

[00:25:11] Speaker 02:
It does not say what happens if the veteran or claimant does do that.

[00:25:17] Speaker 02:
That is left to the secretary to come up with a procedure for, and the secretary has come up with procedures for

[00:25:22] Speaker 02:
considering these things to be withdrawn, et cetera.

[00:25:24] Speaker 02:
That's later in the statute.

[00:25:26] Speaker 02:
The notion that Ms.

[00:25:27] Speaker 02:
Turpack agreed that the only thing the board could do on remand would be to simply declare, just like the Veterans Court did, that this was invalid is demonstrably incorrect.

[00:25:40] Speaker 02:
That is not the state of play here.

[00:25:42] Speaker 02:
The board would certainly have options even if Ms.

[00:25:46] Speaker 02:
Turpack filed that in error.

[00:25:48] Speaker 02:
To address briefly, to address the Carter case that opposing counsel raised because

[00:25:52] Speaker 02:
Opposing counsel has analogized to the non-presidential case in Carter.

[00:25:56] Speaker 02:
In that case, the motion was for review by the full court.

[00:26:00] Speaker 02:
The full court considered the motion and decided to deny the motion because the case was not deserving of full court review, much akin to this court's procedures for en banc review.

[00:26:11] Speaker 02:
The full court considers whether to grant unbanked review.

[00:26:14] Speaker 02:
That motion was denied.

[00:26:16] Speaker 02:
And then the federal circuit said they didn't have jurisdiction to review that decision.

[00:26:20] Speaker 02:
That's very different than what happened here.

[00:26:22] Speaker 02:
This was a panel review request that was never considered.

[00:26:25] Speaker 02:
It was affirmatively dismissed as moot.

[00:26:28] Speaker 02:
It was changed into a motion for reconsideration by the single judge who then reconsidered the case on the merits and issued a second erroneous decision.

[00:26:37] Speaker 02:
That's, that's not akin to the same.

[00:26:39] Speaker 02:
That's those are not comparable situations.

[00:26:41] Speaker 02:
I see I'm out of time.

[00:26:42] Speaker 02:
Unless your honors have further questions, I am happy to address them.

[00:26:45] Speaker 00:
Thank you.

[00:26:46] Speaker 00:
Thanks to all counsel, and the case is submitted.