[00:00:00] Speaker 02: Our final case for argument is 24-1861, Brian versus Collins. [00:00:07] Speaker 02: Mr. Levinson? [00:00:09] Speaker 02: Please come on up and proceed. [00:00:11] Speaker 02: You don't need to sit next to him. [00:00:13] Speaker 02: You need to come up. [00:00:15] Speaker 00: There's been space here for me, but that's OK. [00:00:18] Speaker 00: Good morning, honors. [00:00:21] Speaker 00: Please record I am Jared Levinson, attorney for the appellant in this case, Patrick Frank Bryan, a Marine Corps veteran. [00:00:28] Speaker 00: We're here this morning on the writ of mandamus. [00:00:31] Speaker 00: There's a three-part test, as the court knows, for issuing the writ. [00:00:36] Speaker 00: The first part is that we have to show that there's no other means of obtaining relief. [00:00:41] Speaker 00: There's a clear and undisputable right to the writ. [00:00:44] Speaker 00: And the writ has to be appropriate under the circumstances. [00:00:48] Speaker 00: The problem in this case, complicated as it all is, is that this case has been going on for one thing for 17 years in its present form. [00:00:58] Speaker 00: The other problem here is that throughout all of the proceedings in this case, through all of the hearings that we've had, four BVA hearings, RO consideration, DROC consideration, the government has managed on every major issue in this case to ignore all, and I underline the word all, positive evidence in favor of Mr. Bryant. [00:01:20] Speaker 02: Well, counsel, here's the part that kind of confuses me about your mandamus. [00:01:24] Speaker 02: You know, we're not unaccustomed and nor are we unsympathetic to the idea that sometimes the VA [00:01:31] Speaker 02: It does not act quickly. [00:01:32] Speaker 02: And that's a real problem. [00:01:35] Speaker 02: And we've received mandamus petitions in the past. [00:01:38] Speaker 02: And what they've asked us to do is to give the VA a deadline, a date certain by which they've got to resolve this, get off your butt, resolve the case. [00:01:48] Speaker 02: That's what the mandamus asks us to do. [00:01:50] Speaker 02: But your mandamus is quite perplexing. [00:01:53] Speaker 02: You don't say, tell them to resolve this long overdue claim. [00:01:56] Speaker 02: You say, tell them we win. [00:01:57] Speaker 02: Well, that doesn't feel like mandamus to me. [00:01:59] Speaker 02: That's a very odd. [00:02:01] Speaker 02: request if you want us to use mandamus to award you substantive merit victory as opposed to forcing the VA to get off its butt and act and so i'm a little perplexed are you aware of cases where that's happened in the past because i'm not your honor we ask for we offer we ask for multiple forms of relief we also ask for an order to order the VA to follow the rule of law and to stop playing games with these claims and ignoring [00:02:31] Speaker 00: the overwhelming bulk of the evidence, including all of the evidence. [00:02:35] Speaker 00: And what does that evidence include? [00:02:37] Speaker 00: So we would welcome an order from this court to speed up this process or set a deadline of any kind after 17 years. [00:02:47] Speaker 00: We were here 10 years ago. [00:02:48] Speaker 06: So where is this claim in the VA process right now? [00:02:56] Speaker 06: As of the briefing, which is about a year old, [00:03:00] Speaker 06: It was in the board, right? [00:03:02] Speaker 03: That's correct, Your Honor. [00:03:03] Speaker 03: So recently at the board. [00:03:05] Speaker 03: It had just been filed about six months or four months before. [00:03:09] Speaker 00: If I could, I'd like to take a moment to explain the context of these claims. [00:03:14] Speaker 06: I'm more interested in the specifics of the answer. [00:03:17] Speaker 06: So the board has not acted. [00:03:19] Speaker 06: Is that correct? [00:03:21] Speaker 00: Your Honor, this case has been back and forth between the board. [00:03:29] Speaker 00: According to the BVA, it has been sitting at the board for a long time now. [00:03:34] Speaker 00: It's been sitting there ever since it got there. [00:03:37] Speaker 00: And some of these claims have been sitting there longer. [00:03:40] Speaker 05: Well, we're talking about the dental claims, right? [00:03:42] Speaker 05: We're talking about the dental claims. [00:03:43] Speaker 05: OK. [00:03:44] Speaker 05: I know you've got lots of other claims going on. [00:03:46] Speaker 00: No, we're talking about the dental claims. [00:03:47] Speaker 05: OK. [00:03:47] Speaker 05: Can you answer Judge Toronto's question? [00:03:50] Speaker 05: Is anything developed at the board? [00:03:53] Speaker 00: Nothing is being developed. [00:03:54] Speaker 00: They're just sitting on it. [00:03:55] Speaker 00: It's just sitting there. [00:03:55] Speaker 00: So it has not been decided by the board yet? [00:03:57] Speaker 00: No, it has not. [00:03:58] Speaker ?: OK. [00:04:00] Speaker 00: The problem here is if you look at what they've done, they have ignored all the evidence of what happened. [00:04:06] Speaker 00: Mr. Bryant was aboard a ship at sea, the USS Guam. [00:04:11] Speaker 00: That ship was hit by an 85-foot rogue wave. [00:04:16] Speaker 00: He had been sent topside to seal the hatches. [00:04:19] Speaker 00: What year did this occur? [00:04:21] Speaker 00: 1975. [00:04:22] Speaker 00: The original claims were filed in 1978. [00:04:26] Speaker 00: When that occurred, [00:04:27] Speaker 00: When the ship was hit, Mr. Bryant fell forward while opening a hatch. [00:04:32] Speaker 00: The hatch door, 300 pounds, slammed his head. [00:04:36] Speaker 00: It caught his head between the hatch door and the side wall of the hatch entrance. [00:04:41] Speaker 00: He was knocked unconscious for three days. [00:04:44] Speaker 00: There are medical records from the ship's law which show that he suffered facial damage and dental injuries that could not be repaired on the ship. [00:04:52] Speaker 00: He was helicoptered off the Guam [00:04:56] Speaker 00: to Quantico where he could get care. [00:04:58] Speaker 00: His head was completely bandaged. [00:05:00] Speaker 02: Council, I certainly do not want your client to think we do not A, appreciate his service and B, feel great sympathy for the injury he suffered while in that service. [00:05:11] Speaker 02: But you need to focus on the mandamus. [00:05:14] Speaker 02: You need to focus on whether, for example, the government says you can get one of the factors is that you can't get relief anywhere else. [00:05:21] Speaker 02: The government says you can get relief somewhere else. [00:05:23] Speaker 02: And so we're an appellate court. [00:05:24] Speaker 02: So while we are absolutely sympathetic and tremendously appreciative, we need you to focus on the issue. [00:05:31] Speaker 00: That's what I'm trying to do, Your Honor. [00:05:33] Speaker 00: I'm trying to let you know that what happened here is all the evidence that they should have considered surrounding his injuries. [00:05:41] Speaker 00: medical reports from the ship, all the doctors' reports, all the neurologists' reports, all the dental reports, the C&P exam done by the chief dentist in Buffalo showing the extent that he has a little 42 fracture. [00:05:53] Speaker 02: In other words, Your Honor... But this is not appeal of the merits. [00:05:56] Speaker 02: We don't have a decision on appeal. [00:05:57] Speaker 02: Your Honor... Council, don't interrupt me. [00:06:00] Speaker 02: We do not have a decision on appeal to us on the merits. [00:06:04] Speaker 02: I understand, but... You're interrupting me again. [00:06:09] Speaker 02: You know what? [00:06:10] Speaker 02: You just go ahead. [00:06:11] Speaker 02: I'll stop asking questions. [00:06:12] Speaker 02: Go on. [00:06:15] Speaker 00: Your Honor, if I may, the problem here is that we cannot get resolution because the VA will not follow the most fundamental rule that they have. [00:06:25] Speaker 00: This is not just an appeal on the merits. [00:06:27] Speaker 00: The problem is, in every term, they refuse to consider all relevant evidence. [00:06:32] Speaker 05: How do we get it? [00:06:33] Speaker 05: But let me interrupt you. [00:06:35] Speaker 05: The BVA, the adjudication of your claim has not yet occurred. [00:06:41] Speaker 05: It's pending before the board. [00:06:43] Speaker 05: It will then be appealable to the CAVC. [00:06:47] Speaker 05: When litigants come up here and say they refused or they failed to consider this evidence, they're talking about what the board failed to do or what the CAVC failed to do. [00:06:57] Speaker 05: You haven't even gotten to that point in this case. [00:07:00] Speaker 00: No, the CABC failed to consider all the evidence that we presented that the government didn't consider any of the evidence in this case that was positive to the claim. [00:07:08] Speaker 00: This has been going on for 17 years. [00:07:11] Speaker 00: How do we get it resolved? [00:07:12] Speaker 00: How do we get an appeal if they keep remanding it back and forth for 17 years and in the process ignore it? [00:07:18] Speaker 00: And to give you a good example of what you're talking about. [00:07:22] Speaker 00: There are other issues in this case that are out before you. [00:07:24] Speaker 00: But if you'll indulge me for a moment, there are issues involving PTSD and TBI. [00:07:29] Speaker 00: Now, let me explain to you what the VA did here. [00:07:32] Speaker 05: Well, let me just, as a threshold matter, those are the subject of other claims that you have in adjudication that are separate and distinct from this claim. [00:07:41] Speaker 00: I'm very aware of that, Your Honor. [00:07:42] Speaker 00: But it's typical of the process that they've engaged in to review these claims. [00:07:47] Speaker 00: They've gotten the same kind of review both ways. [00:07:49] Speaker 00: And what I'm trying to say to you [00:07:50] Speaker 00: There's a persistent pattern of misconduct here that cannot be ignored by the court. [00:07:56] Speaker 00: How do you get due process if there is no due process? [00:07:59] Speaker 00: If the government at every turn ignores its most highest duty, what does the VA law require? [00:08:04] Speaker 00: What did Justice Thomas say in the most recent decision on the standard of evidence in this case? [00:08:10] Speaker 00: He said the VA has a duty to weigh all relevant evidence. [00:08:15] Speaker 00: And then they have a duty to weigh that evidence in juxtaposition to each other. [00:08:20] Speaker 00: How do you get that evidence weighed by anybody if none of that evidence is ever reviewed or mentioned or even analyzed by the VA, by the BVA, and if they ignore the record? [00:08:30] Speaker 00: And if they go out of their way to keep that evidence from coming? [00:08:33] Speaker 00: before it could be even becoming part of the record of the case. [00:08:36] Speaker 05: Have you made those arguments in your pending case before the BVA? [00:08:40] Speaker 00: Your Honor, the BVA doesn't care. [00:08:43] Speaker 05: Can you answer my question? [00:08:45] Speaker 00: We have made those arguments throughout this case, Your Honor. [00:08:47] Speaker 00: We've been making those. [00:08:48] Speaker 00: I submitted a 60 page brief to the BVA at one point on all of these issues, giving them all of that evidence. [00:08:55] Speaker 00: That's the point. [00:09:01] Speaker 00: At what point does the government have a duty to review evidence? [00:09:06] Speaker 00: How can they ignore all of the evidence in a case? [00:09:08] Speaker 00: We are never going to see resolution, because they keep playing games, dancing around the truth at every turn. [00:09:16] Speaker 00: So what is it you're asking us to do? [00:09:19] Speaker 05: Can I finish the question? [00:09:22] Speaker 05: You answered, Judge Moore, I think that you're not necessarily only seeking, give me all my damages. [00:09:28] Speaker 05: That's correct. [00:09:29] Speaker 05: So you want us to issue an order telling the BVA that they have to consider all the evidence? [00:09:34] Speaker 00: Yes. [00:09:35] Speaker 00: Consider all the evidence and issue perhaps a deadline, six months, whatever it may be that's reasonable, to put an end to this so we can get to the CAVC after 17 years. [00:09:47] Speaker 02: Counsel, one of the things the government argues is that in cases where we've issued deadlines, there are what are called the track factors that have to be weighed and addressed, and that you didn't raise those. [00:10:00] Speaker 02: And you've therefore waived that form of relief. [00:10:03] Speaker 00: We did raise those in our letter of appeal to that body, which they denied. [00:10:09] Speaker 00: And they said that we didn't meet the track factors. [00:10:12] Speaker 00: There's a second opinion there from the court. [00:10:15] Speaker 00: But moreover, we do meet the track factors, Your Honor. [00:10:21] Speaker 00: First of all, the rule of reason is the first factor in the track analysis. [00:10:26] Speaker 00: The rule of reason here is that you would consider all of the evidence, all of it, all the relevant evidence, just like the law requires, just like Justice Thomas said. [00:10:36] Speaker 00: They have to weigh it, and then they have to make a decision. [00:10:39] Speaker 00: But how are they going to weigh the evidence if they ignore it? [00:10:42] Speaker 00: And the reason I raised that already. [00:10:43] Speaker 04: But has the BVA, I mean, the current appeal before the BVA, are you assuming that they're going to ignore it? [00:10:49] Speaker 00: They've already done that in another aspect of the case. [00:10:52] Speaker 00: They ignored a CMP exam written by the most qualified doctor in the PTSD and TBI issues. [00:10:59] Speaker 00: They found a reason to toss it aside, creating facts that weren't even in the record. [00:11:04] Speaker 05: So have you appealed that? [00:11:06] Speaker 00: Yes, we have. [00:11:06] Speaker 00: But here's what happened. [00:11:07] Speaker 00: This is why I'm concerned about this. [00:11:09] Speaker 00: We went to this, I'm sorry to be so [00:11:12] Speaker 00: perhaps forward about this. [00:11:14] Speaker 00: But look, here's what they've done. [00:11:16] Speaker 00: The case went to the CAVC. [00:11:18] Speaker 00: The government then conceded that they made a mistake in not reviewing that report and said that they would correct it. [00:11:28] Speaker 00: So the court remanded it, and the government even put this in their brief. [00:11:31] Speaker 00: When the case was remanded, it went to the DROC, and they issued a decision earlier this year. [00:11:36] Speaker 00: You know what wasn't mentioned at all in that decision? [00:11:39] Speaker 00: that all the evidence, including the CNP report, that they were supposed to review. [00:11:44] Speaker 00: So what's DROC? [00:11:46] Speaker 00: The Decision Review Operations Center, they handle a lot of the remands that come down from the court. [00:11:55] Speaker 00: I even spoke to the director of the DROC, and he assured me they would review it. [00:12:00] Speaker 00: If you look at the evidence that's cited in that DROC, there's no mention of that report. [00:12:07] Speaker 00: And who wrote the report? [00:12:09] Speaker 00: a doctor, a psychologist who has a 10 years experience as an Army psychologist trained at the Eisenhower Medical Center in TBI and PTSD issues. [00:12:20] Speaker 00: That report was ignored like it never happened. [00:12:22] Speaker 05: Wait, is that report connection with the dental claims? [00:12:25] Speaker 00: No, it's in response to the other. [00:12:26] Speaker 05: But this is how they treat it. [00:12:28] Speaker 05: So it's not what you've just told us for the past two or three minutes isn't relevant. [00:12:31] Speaker 05: Your Honor. [00:12:32] Speaker 05: Can I finish? [00:12:34] Speaker 05: Isn't relevant to the case. [00:12:35] Speaker 00: It is relevant to the behavior, overall behavior of the agency in relation to this case. [00:12:40] Speaker 00: And they've done the same thing in this case. [00:12:42] Speaker 00: They've ignored all the positive evidence. [00:12:44] Speaker 00: How can an agency, in reviewing a case, ignore all of the evidence? [00:12:50] Speaker 00: I've never heard of a case like that. [00:12:52] Speaker 00: If that isn't the over... Their number one duty, their number one duty is to review all of the evidence and weigh it in juxtaposition to each other. [00:13:02] Speaker 00: Justice Thomas reaffirmed that fact in his latest decision on that, regarding the standard of proof for VA claims. [00:13:10] Speaker 02: This is not a marriage... Counsel, do you save all your rebuttal time? [00:13:12] Speaker 02: Do you want to save any of it? [00:13:14] Speaker 00: Yes. [00:13:15] Speaker 00: I'll save the rest of my rebuttal time. [00:13:17] Speaker 00: Thank you. [00:13:25] Speaker 01: Good morning, Your Honors, and may it please the Court, Katherine Yang from the Department of Justice. [00:13:30] Speaker 01: The issue before the Court is straightforward, whether the Court of Veterans Claims erred when it denied Mr. Bryant's mandating this petition. [00:13:37] Speaker 01: That is a narrow question, and the answer is equally straightforward. [00:13:40] Speaker 01: The Veterans Court acted within its discretion, and this Court should affirm. [00:13:44] Speaker 01: I'll start with the most obvious piece, which is that Mr. Bryant's petition and during the argument today. [00:13:49] Speaker 05: Well, can we start with his initial assertion? [00:13:52] Speaker 05: And I just want to focus on the dental claims. [00:13:54] Speaker 05: And I know he crossed over between other claims, yes, pending. [00:13:57] Speaker 05: But what about his assertion that this case has been around for 12 to 16 years or whatever? [00:14:03] Speaker 05: Is that accurate? [00:14:05] Speaker 05: And if so, does the VA need to explain the nature of that delay? [00:14:10] Speaker 01: Certainly, Your Honor. [00:14:11] Speaker 01: So I heard a mention of 17 years for the life of the case. [00:14:15] Speaker 01: Your Honor, in our view, that's not the proper metric. [00:14:19] Speaker 01: Because as this Court and Martin made very clear, for purposes of mandamus, what we do is we look at the particular agency action that has been alleged to be unreasonably delayed. [00:14:29] Speaker 01: There is no question. [00:14:30] Speaker 02: Just stop. [00:14:30] Speaker 02: Don't answer her question directly. [00:14:32] Speaker 02: Has this case been bouncing back and forth for 16 years? [00:14:37] Speaker 01: The merits of this case have been adjudicated over the period of those 17 years, but on various different issues, Your Honor. [00:14:43] Speaker 01: And so the procedural posture that's currently before the court today is very different than the procedural posture that was before the court in the last mandamus petition in 2015. [00:14:53] Speaker 01: So over the course of the life of this case, in fact, even just since the last argument in 2015, there have been three board decisions. [00:15:01] Speaker 01: There have been more board decisions on other claims that Mr. Bryant is pursuing. [00:15:05] Speaker 01: There's been a lot of substantive activity at the RO level. [00:15:08] Speaker 01: And so it's not the case that the board had, that the VA has simply been sitting on this case for the last 17 years. [00:15:14] Speaker 01: Much to the contrary, there have been a number of decisions in that time. [00:15:17] Speaker 01: And the reason that we are before the court today is because in 2021, Mr. Bryant was before the board when he raised for the first time [00:15:27] Speaker 01: The argument that the VA's decision in 1979 was clear and unmistakable error. [00:15:34] Speaker 01: That was the first time he had made that motion. [00:15:36] Speaker 01: He made that motion initially before the board. [00:15:38] Speaker 01: And the board said, we don't have jurisdiction to review that in the first instance. [00:15:42] Speaker 01: The RO has to do that under this court's decision in Andre V. Principi. [00:15:46] Speaker 01: And so it remanded. [00:15:47] Speaker 01: So the Q claims are now what's before the board. [00:15:50] Speaker 01: And those claims were only filed, Your Honor, in 2021, I believe, was the date. [00:15:54] Speaker 01: So it's simply not correct that the 17 years is the appropriate number to look at. [00:15:58] Speaker 01: More importantly, though, Your Honor, for purposes of the McDamis petition, I think there are a couple of factors to keep in mind. [00:16:04] Speaker 01: Number one is that, as the Veterans Court made very clear, is that the petitioner bears the burden of showing unreasonable delay using the analysis under the track factors. [00:16:14] Speaker 06: I just want to focus on something you just said. [00:16:20] Speaker 06: really understand it. [00:16:22] Speaker 06: The only claim, dental claim that is at issue is a Q claim and that was not filed until four years ago? [00:16:33] Speaker 06: Is that what you just said? [00:16:34] Speaker 01: So what's currently before the board are two issues both pertaining to the dental claims under different diagnostic codes and the issue for each of them is [00:16:44] Speaker 01: Number one, whether the dental code was, whether their service connection established under the dental code, and relatedly, whether the 1979 decision by the VA was Q. And the Q claim, to your honor's question, was not raised until. [00:17:01] Speaker 06: But the non-Q claim was filed when? [00:17:04] Speaker 01: The non-Q claim, that has been at issue since the 2000, [00:17:11] Speaker 01: since the 2015 appeal that was lost before this court. [00:17:14] Speaker 01: But it has bounced back and forth for a number of different reasons that I'm happy to go into, if that would be helpful. [00:17:19] Speaker 06: But that claim was filed for effective date purposes when? [00:17:24] Speaker 01: I'm not certain of the date of filing, but the import of it is that the effective date for the non-Q claim is not the [00:17:34] Speaker 01: entirety of the period that Mr. Bright is asking for, which is why before the board in 2021, he decided to file the Q motion, which would, if granted, give him an effective date all the way back to 1979, which is ultimately what he wants. [00:17:49] Speaker 01: For purposes of the mandamus petition that's before the court, I think there are a couple of important things to keep in mind. [00:17:56] Speaker 01: Number one is that the petitioner bears the burden, and the Veterans Court here found that the petitioner did not meet that burden. [00:18:01] Speaker 02: How long has this case been at the board this time? [00:18:05] Speaker 02: What is the current action that we're waiting for from the board? [00:18:10] Speaker 01: Yes, so the appeal has been pending for a little over two years. [00:18:15] Speaker 01: It was first docketed in August of 2023. [00:18:18] Speaker 01: Sometime in there, there were two FOIA requests made by Mr. Bryan's counsel that had to be addressed and were addressed. [00:18:26] Speaker 01: I believe earlier this year, I think... FOIA requests to the board? [00:18:30] Speaker 01: FOIA requests to the VA pertaining to his dental claims, which then required, I think, the file being transferred between different entities within the VA. [00:18:40] Speaker 02: So just wait a second. [00:18:42] Speaker 02: You say it was docketed in August of 2023. [00:18:45] Speaker 02: My recollection is that sometimes things are filed and not docketed for extensive periods of time. [00:18:50] Speaker 02: I'm remembering this from Martin. [00:18:52] Speaker 02: I want to know when was it filed with the board? [00:18:57] Speaker 02: Do you have that information? [00:18:59] Speaker 02: When did he file an appeal? [00:19:01] Speaker 01: I have it in my notes that Mr. Bryan appealed in July of 2023. [00:19:06] Speaker 01: And the reason for that is because the Q decision by the regional office on his 2021 motion issued in March of 2023. [00:19:16] Speaker 01: So he appealed that. [00:19:17] Speaker 01: That appeal was filed in July 2023. [00:19:21] Speaker 01: The appeal was docketed in August of that same year. [00:19:25] Speaker 01: not ruled in two years. [00:19:27] Speaker 01: The board has not yet ruled. [00:19:28] Speaker 01: What has happened is that there were these two FOIA requests that needed to be addressed. [00:19:32] Speaker 01: My understanding is that council also made an objection to the way that the appeal was unfolding and so that also required a substantive response by the board. [00:19:42] Speaker 01: My understanding is that a board member was assigned here to review this appeal earlier this year, around March or so, and that most recently, at the beginning of September, it was assigned for drafting of a decision. [00:19:58] Speaker 02: September of when? [00:19:59] Speaker 02: 2025. [00:20:02] Speaker 02: So in September of 2025, it was assigned to have an opinion drafted? [00:20:10] Speaker 02: I'm confused. [00:20:11] Speaker 02: I don't know this process. [00:20:14] Speaker 01: Yeah, so that's correct. [00:20:15] Speaker 01: That a staff attorney was assigned to assist the board member with drafting the decision. [00:20:19] Speaker 05: So that step comes after there's been whatever analysis or review of the record by whoever's assigned to the case? [00:20:27] Speaker 01: That's my understanding, yes. [00:20:29] Speaker 02: Now, let me ask you a question. [00:20:30] Speaker 02: I certainly know the track factors. [00:20:32] Speaker 02: I don't need you to tell me whose burden of anything is. [00:20:35] Speaker 02: But is there room within this analysis to take into account [00:20:40] Speaker 02: the fact that the litigation has been ongoing for so long. [00:20:44] Speaker 02: And what I mean by that is while no individual delay standing alone might be awful, they seem long and I'm bothered by it, but cumulatively it's troubling. [00:20:59] Speaker 02: And so while you're standing here and saying, well, this one has only been pending since July of 2023, [00:21:06] Speaker 02: But his claims have been ongoing for 17 years related to this generally. [00:21:13] Speaker 02: Is there any room in the analysis for taking that into account? [00:21:19] Speaker 01: I think there is, Your Honor. [00:21:20] Speaker 01: And ultimately, it comes down to, when we're considering a mandamus petition, the other two factors that are always going to bound that analysis are, number one, that mandamus does not turn on the mere passage of time. [00:21:32] Speaker 01: We know that from the Beasley decision by this court, where I believe the veteran mayor alleged a lengthy history of his case that spanned 14 years. [00:21:40] Speaker 01: But this court said there's an alternate remedy, and therefore, mandamus is not appropriate. [00:21:45] Speaker 01: So it doesn't turn merely on the passage of time. [00:21:47] Speaker 01: And number two, the context matters. [00:21:49] Speaker 01: And that's ultimately the gist of this court's decision in Martin. [00:21:52] Speaker 01: The context matters that you have to look at what is actually happening in the case, the reasons why things are happening in the case. [00:21:59] Speaker 01: And the reason that I brought up the Q issue is because what that demonstrates is that [00:22:06] Speaker 01: When Mr. Brian was appealing between 2013 and 2021, he was appealing something that he ultimately decided to change tack on, right, in 2021 with the Q motion. [00:22:17] Speaker 05: So he brought- One of the purposes of our audience just to explain very briefly what Q is. [00:22:22] Speaker 01: Yes, Your Honor. [00:22:22] Speaker 01: So in the veteran system, there's a number of different ways to challenge a claim, but there are limited ways to challenge a claim that has become final. [00:22:31] Speaker 01: One of the ways, one of the limited ways to challenge a claim that has become final is to file what's called a cue motion, cue meaning clear and unmistakable error. [00:22:39] Speaker 01: And it's a high standard to meet, but it basically says that if you are able to meet the standard and demonstrate that the original VA decision that you're challenging was clearly and unmistakably factually, legally erroneous at the time that it was made, [00:22:53] Speaker 01: then you are entitled to basically undo the finality of that decision. [00:22:57] Speaker 05: And the relevance of that is that you get all of the back pay from the time of the original decision, whereas otherwise you just get a year before or whatever. [00:23:05] Speaker 01: That's exactly right. [00:23:05] Speaker 01: You get that entire history of benefits all the way back to the original decision that you are challenging. [00:23:11] Speaker 01: And so context matters, Your Honor, which was the gist of the course decision in Martin. [00:23:18] Speaker 01: Mr. Council in his opening argument said, you know, we did raise the track factors before the Veterans Court. [00:23:25] Speaker 01: Your Honor, the petition before the Veterans Court is very clear. [00:23:28] Speaker 01: There's no mention of the track factors or any sort of analysis. [00:23:31] Speaker 01: Council said, well, I did it before the panel when I was requesting a panel review. [00:23:37] Speaker 01: That doesn't work, Your Honors, because it is a well-established rule in the Veterans Court that the purpose of panel review is to see whether the single judge has prejudicially overlooked or misunderstood something. [00:23:49] Speaker 01: And by definition, the Veterans Court here, when it assessed the petition, could not have, by definition, overlooked something that Mr. Biden never put before in the first place. [00:24:00] Speaker 01: So ultimately, what we have here is two things that the Veterans Court ruled on. [00:24:05] Speaker 01: Number one, what the Veterans Court said [00:24:07] Speaker 01: that it was pretty clear to them that what Mr. Bryan was ultimately seeking was a merits outcome. [00:24:12] Speaker 01: And the Veterans Court held that mandamus cannot compel a merits outcome. [00:24:17] Speaker 01: That's very clear under those court's decisions in Wolfe and Beasley. [00:24:20] Speaker 01: And then to the extent that Mr. Bryan was seeking something other than merits relief, the Veterans Court said that he had not shown that he lacked an adequate alternate remedy. [00:24:31] Speaker 01: talked about the various different ways that his claim is moving through the process. [00:24:34] Speaker 01: It talks about the ways that the VA is developing the claims, how the VA is making sure that Mr. O'Brien and the RO are following the right procedures, and that when someone makes a mistake, they're rightly given the chance to correct it. [00:24:46] Speaker 01: That is an adequate alternate remedy. [00:24:49] Speaker 01: And because that is one of the key pieces of any mandamus petition, the Veterans Court found that because Mr. O'Brien had failed to establish that, that he was not entitled to a written mandamus. [00:25:00] Speaker 02: Council, you said a staff member has been assigned to help somebody at the board generate the opinion. [00:25:08] Speaker 02: In your experience, how long does it normally take before you see such an opinion? [00:25:12] Speaker 01: I wouldn't be able to speculate, Your Honor, I'm sorry. [00:25:15] Speaker 02: Months or years? [00:25:16] Speaker 01: I would say months. [00:25:19] Speaker 01: I'm not in a position to be able to say definitively that a decision was issued within a certain amount of time. [00:25:25] Speaker 02: OK. [00:25:25] Speaker 02: Well, how long do you think would be too long, such that the track factor should be implicated? [00:25:30] Speaker 02: How much longer does he have to wait, Mr. Bryan, for a decision from the board? [00:25:34] Speaker 02: When do you think the track factors would justify him returning to court for mandamus for us to order the board to resolve the case? [00:25:44] Speaker 01: Your Honor, I don't have a specific timeline in mind for you. [00:25:47] Speaker 01: And the reason for that is that's not the role that either I play or that this court plays. [00:25:52] Speaker 01: Ultimately, the way that the track factors would have to be analyzed if it had been argued and presented in the first instance to the Veterans Court is that the Veterans Court would assess the factors and say whether there has been a rule of reason applied, whether there has been unreasonable delay, whether that delay, either individually or cumulatively, is so egregious as so warrant mandamus. [00:26:13] Speaker 02: And I guess that's what I'm trying to get from you is [00:26:15] Speaker 02: What would the point at which you would agree the delay is so egregious that it warrants mandamus? [00:26:22] Speaker 02: I'd like to know the government's position. [00:26:24] Speaker 02: There has to be a time. [00:26:26] Speaker 02: There has to be a time at which if the board does nothing, if he files nothing going forward and the board does nothing, at what point is he legitimately entitled to come back and seek mandamus relief? [00:26:39] Speaker 01: Your Honor, I apologize. [00:26:40] Speaker 01: I don't have a specific time, again, because the court in Martin was very clear that context matters. [00:26:45] Speaker 01: But you know the context. [00:26:46] Speaker 02: Assume as true all the facts in this case. [00:26:49] Speaker 02: You have all the context you need. [00:26:51] Speaker 02: You know these facts 10 times better than I do. [00:26:53] Speaker 01: Again, Your Honor, context matters not just in the past, but also going forward, right? [00:26:57] Speaker 01: Because if there's additional activity either before the board. [00:27:00] Speaker 02: I just said assume he files nothing else, and he just sits back and waits for his decision. [00:27:07] Speaker 02: How long is too long? [00:27:09] Speaker 02: How long has it got to wait? [00:27:10] Speaker 01: Your Honor, I don't know. [00:27:11] Speaker 01: What I can say is that, on average, appeals before the Board of Veterans' Appeals are resolving anywhere between a year and a half and, I believe, up to two and a half or three years. [00:27:23] Speaker 01: And so if we are within that window, I think that would be reasonable. [00:27:26] Speaker 01: If we go far beyond that window, then it depends on the context of the case. [00:27:30] Speaker 02: Of course, an average- And that time period you gave is from the filing of the appeal to its resolution. [00:27:38] Speaker 02: And of course, the context matters, right? [00:27:41] Speaker 02: That's right. [00:27:41] Speaker 02: And so we're already pretty far along in that window, aren't we? [00:27:45] Speaker 01: We are in that window. [00:27:46] Speaker 01: We are not beyond that window. [00:27:47] Speaker 02: No, but we're towards the tail end of that window at this point, it looks like, because if he filed in July of 2023, we're kind of coming. [00:27:55] Speaker 02: I hope there's a decision really soon. [00:27:56] Speaker 02: How about that? [00:27:57] Speaker 02: I hope so too, Your Honor. [00:27:59] Speaker 02: Is there anything you can do to help move that along? [00:28:02] Speaker 02: Can you pass a little message on to the board? [00:28:05] Speaker 01: The board is well aware of this appeal. [00:28:07] Speaker 01: Like I said, the board is in the middle of adjudicating this appeal. [00:28:12] Speaker 01: A staff attorney has been assigned to draft the decision. [00:28:14] Speaker 01: I don't have anything more specific beyond that. [00:28:18] Speaker 01: But it is certainly underway. [00:28:20] Speaker 02: And ultimately- I mean, you represent the agency, correct? [00:28:23] Speaker 02: I represent the United States, yes. [00:28:24] Speaker 02: And the board is part of that agency. [00:28:26] Speaker 02: That's correct. [00:28:27] Speaker 02: So go tell them to decide the case promptly. [00:28:29] Speaker 01: I will pass that along, Your Honor. [00:28:33] Speaker 01: I certainly will. [00:28:33] Speaker 01: And like I said, the Board is aware of its obligation to resolve these issues expeditiously within all the constraints of the system. [00:28:41] Speaker 01: But ultimately, for purposes of mandamus, it's not for this court to sit and apply the track factors in the first instance. [00:28:47] Speaker 01: And ultimately, with the record that's coming before this court, it is ultimately whether the Veterans Court acted within its discretion when it denied the mandamus petition. [00:28:56] Speaker 02: Respectfully, you don't think we should apply the track factors in the first instance. [00:28:59] Speaker 02: But there have to be circumstances in which it has taken too long and too much has gone on. [00:29:05] Speaker 02: And as a matter of law, it's reasonable. [00:29:06] Speaker 02: We're not there yet. [00:29:08] Speaker 02: But I'm not positive that we can't apply the track factors in the first instance. [00:29:13] Speaker 01: I understand your Honor's position on that. [00:29:15] Speaker 01: I respectfully disagree. [00:29:16] Speaker 01: I think that the court's jurisdictional statute in 7292 makes it very clear that you have to review a final decision by the Veterans Court. [00:29:24] Speaker 01: And this court's decision in Moat indicates that if the court finds an issue with the Veterans Court's application of the track factors [00:29:33] Speaker 01: then, or lack thereof, as was the case in Moat, that it's for the Veterans Court to apply the factors in the first instance. [00:29:40] Speaker 01: But for all these reasons, I see that my time has up, and so I'll ask that the court affirm the decision of Moat. [00:29:46] Speaker 01: Thank you. [00:29:55] Speaker 00: Please, the court. [00:29:57] Speaker 00: Council for the government has told you [00:30:00] Speaker 00: how they were handling the 9s. [00:30:02] Speaker 00: You talked about the 99-13 issue in terms of the Q claim. [00:30:07] Speaker 00: I'd like to give you the history of that issue and honest accounting, not the cleansed version you've been getting. [00:30:15] Speaker 00: That 99-13 rating was made about at the time that their brief was due at this court 10 years ago. [00:30:24] Speaker 00: And they held it out to this court as a show of good faith. [00:30:29] Speaker 00: When they got out of this court, they proposed revoking that rating, saying it wasn't warranted. [00:30:35] Speaker 00: They said he had periodontal disease. [00:30:37] Speaker 00: They ignored, as I said earlier, all of the evidence concerning the accident, everything that's happened to him. [00:30:44] Speaker 00: He's had two major surgeries because of those injuries. [00:30:48] Speaker 00: What's significant is the process they used. [00:30:52] Speaker 00: revoking that rating. [00:30:54] Speaker 00: Then they reaffirmed it after we objected. [00:30:57] Speaker 00: Then they proposed taking it away again, and then they issued a decision reaffirming it. [00:31:04] Speaker 00: And then they took it away again. [00:31:06] Speaker 00: That's the process we've been getting. [00:31:10] Speaker 00: That's the due process that they've been giving us. [00:31:14] Speaker 00: It makes no sense at all. [00:31:15] Speaker 00: It took them nine months to give us any explanation at all as to why they were revoking it. [00:31:21] Speaker 00: I had a direct [00:31:23] Speaker 00: communication with the director of the Baltimore regional office. [00:31:27] Speaker 00: They have done everything they can to ignore the rule of law. [00:31:32] Speaker 00: You cannot revoke a rating under law, reaffirm it, and then take it away without reproposing it. [00:31:39] Speaker 00: That's cute on its face, period. [00:31:43] Speaker 00: They have done nothing but violate the law at every turn. [00:31:46] Speaker 00: They could care less what the law says. [00:31:49] Speaker 00: They have no rational explanation for any of this. [00:31:53] Speaker 00: And if they aren't stopped, they're going to keep doing it over and over again. [00:31:57] Speaker 00: Just like they came to this court and promised that held up that rainy and then took it away under the most bizarre circumstances I've ever seen, they're going to do it again and again until they're stopped. [00:32:12] Speaker 02: All right, counsel, thank both counsel. [00:32:13] Speaker 02: Arguments taken under submission. [00:32:15] Speaker 02: Thank you.