[00:00:00] Speaker 01: Our next case is number 24, 1270, Piper v. Collins. [00:00:05] Speaker 01: Mr. DeHartwas? [00:00:08] Speaker 02: Thank you, Your Honor. [00:00:08] Speaker 02: May it please the Court? [00:00:09] Speaker 02: On behalf of Ms. [00:00:10] Speaker 02: Piper, I want to thank this Court for the opportunity to present her appeal. [00:00:14] Speaker 01: The key point... Why isn't this case governed by Smith? [00:00:20] Speaker 02: Well, Your Honor, I think that under this Court's precedent in Newell Companies, the Kenny Manufacturing 864 Fed [00:00:28] Speaker 02: at second 757. [00:00:31] Speaker 02: We think that there's more than one panel that Smith is inconsistent with that predates it. [00:00:37] Speaker 02: And under that ruling, the earlier precedent controls. [00:00:43] Speaker 02: Three of those cases, Reeves, Marion. [00:00:45] Speaker 01: So we should overrule Smith. [00:00:47] Speaker 02: Well, I'm not sure. [00:00:48] Speaker 01: If Smith is governing authority, you lose, right? [00:00:56] Speaker 02: We do, Your Honor, on that precedent. [00:00:58] Speaker 03: And you litigated Smith. [00:00:59] Speaker 03: So you're firm litigated Smith. [00:01:01] Speaker 03: So you're aware of Smith. [00:01:03] Speaker 01: We are, Your Honor. [00:01:05] Speaker 01: I find it remarkable that you didn't call Smith to our attention in the 28-J letter. [00:01:13] Speaker 02: Right, Your Honor. [00:01:14] Speaker 02: That's our responsibility, I understand. [00:01:17] Speaker 03: Did you file a petition for rehearing in Smith? [00:01:19] Speaker 02: We did not, Your Honor. [00:01:22] Speaker 03: You thought Smith was inconsistent with prior precedent, but you didn't file a petition for rehearing suggesting that? [00:01:28] Speaker 02: We did, Your Honor. [00:01:29] Speaker 02: We did not file the petition, Your Honor. [00:01:31] Speaker 02: We also had at the same time. [00:01:33] Speaker 03: So in the absence of petition for rehearing, arguing that Smith was inconsistent with prior precedent, you thought you were going to be able to come here and cite the prior precedent and tell us that Smith was unlawful, and we should do that here as a panel? [00:01:49] Speaker 02: Well, to be honest, your honor, I'm not sure under [00:01:54] Speaker 02: Newell and the court's precedent, how the court deals with that situation. [00:01:58] Speaker 02: It does say that NBONC is not the only way to deal with a later ruling that is inconsistent with. [00:02:07] Speaker 02: What Newell says is that the first in line is the controlling precedent. [00:02:11] Speaker 02: And so when we looked at Reeves, Merritt, and Cruz, those three cases in particular tell us that the substitution issue is a separate [00:02:24] Speaker 02: as a separate determination from the entitlement to the benefits. [00:02:31] Speaker 03: And that all that the substitutes... And those three cases you're mentioning now, were they cited in your brief in this case? [00:02:39] Speaker 03: They were not, Your Honor, because we were interpreting... So the precedent you're telling us that is inconsistent with Smith wasn't [00:02:45] Speaker 03: what you rested on in this case at all. [00:02:47] Speaker 02: Well, Your Honor, the briefing was already complete, and then Smith came out. [00:02:51] Speaker 02: We also had, as we talked. [00:02:53] Speaker 04: Didn't you give us a Rule 23 letter on those cases? [00:02:56] Speaker 02: I did not, Your Honor, no. [00:02:58] Speaker 02: Yeah. [00:03:00] Speaker 02: In the ruling, I'm sorry, the briefing in this case was focused on the plain statutory language. [00:03:06] Speaker 01: OK, but you didn't even cite the cases that you say Smith conflicts with, right? [00:03:12] Speaker 02: No, Your Honor, because, again, Smith came after briefing was complete. [00:03:15] Speaker 03: Yeah, but even if there was no such thing as Smith, if you think you're telling us here that there was precedent which confirms the legal argument you're making here, why wouldn't you have cited it in your brief, irrespective of Smith? [00:03:30] Speaker 02: Your Honor, the briefing was focused on the plain language of the statute and was focused on the ruling that the Veterans Court made, or at least that it affirmed in the boards. [00:03:41] Speaker 02: looking at the language itself, the statutory language supports the same holding or the same outcome in that substitution is determined and then that the substitute claimant completes the veteran's claim or the deceased claimant's claim. [00:03:59] Speaker 02: And they are not substituting into, which I think is how Smith got it wrong and how the court in this case got it wrong. [00:04:07] Speaker 02: They're looking at it that the substitute claimant is [00:04:10] Speaker 02: continuing an accrued benefits claim, in which case the accrued beneficiary would be limited under A6. [00:04:21] Speaker 02: But they're actually continuing the claimants claim, the deceased claimants claim, which is not accrued benefits. [00:04:28] Speaker 02: And the statute very [00:04:31] Speaker 02: is distinct from the accrued benefits statute 5121. [00:04:35] Speaker 02: And that's recognized in this. [00:04:38] Speaker 03: And that's the same argument you made in Smith. [00:04:41] Speaker 02: Well, it is, Your Honor. [00:04:42] Speaker 02: But again, the statutory language supports this reading. [00:04:48] Speaker 02: And we think that [00:04:50] Speaker 01: There's no prior case that adopted your argument. [00:04:53] Speaker 01: I mean, the prior cases talk about substitution being separate from recovery, but there's no case that supports the notion that the recovery isn't limited, as provided in sub-sector 5121, [00:05:14] Speaker 02: Not explicitly, Your Honor, but looking at Reeves, it says. [00:05:17] Speaker 01: Well, not explicitly. [00:05:19] Speaker 01: So we're supposed to say that Smith is inconsistent with an earlier case, which didn't explicitly say something? [00:05:25] Speaker 02: Well, the reason why is because in those prior cases, it was always the hire-in-order substitute, the surviving spouse. [00:05:32] Speaker 02: And so there was no need to get to the A6. [00:05:34] Speaker 01: No need to get to means that Smith is inconsistent with the earlier cases? [00:05:38] Speaker 01: That makes no sense. [00:05:39] Speaker 02: It does, Your Honor, because looking specifically at Reeves, [00:05:43] Speaker 02: The statute makes clear, and I'm looking on page 997 of that decision, that a veteran's claim is not extinguished by his death. [00:05:50] Speaker 02: Instead, it survives so that it can be processed to completion. [00:05:53] Speaker 02: It's the veteran's claim that is being completed, not a new recruit benefits claim. [00:05:58] Speaker 02: Same thing in Cruz, that Mrs. Cruz is entitled to be substituted as a claimant. [00:06:05] Speaker 01: Mr. Dohafe, just saying for myself, your argument sounds frivolous. [00:06:13] Speaker 02: I apologize for that, Your Honor. [00:06:17] Speaker 02: But I will say that we do read these cases as have already spoken to this question. [00:06:23] Speaker 02: And we would ask that the court recognize Smith as an outlier. [00:06:28] Speaker 04: The cases you're citing, could you tell us the names of those three cases and the sites? [00:06:32] Speaker 04: They're not cited in your briefing here. [00:06:35] Speaker 02: So the first is Reeves. [00:06:36] Speaker 04: And they're not cited in your briefing, nor did you provide a 28-year letter. [00:06:40] Speaker 04: This is the first time you're talking about them? [00:06:42] Speaker 04: It is, Your Honor. [00:06:44] Speaker 02: So Reeves V. Shinseki, 682, F3, 998. [00:06:53] Speaker 02: Merritt V. Wilkie, which was cited in our reply brief in response to the secretaries. [00:06:58] Speaker 02: And that one more is just that substitution is separate from entitlement, which the secretary cited that proposition. [00:07:07] Speaker 02: And then Cruz V. McDonough, 63, F4, 37. [00:07:11] Speaker 01: And none of those cases held at 5121 parens A doesn't limit the recovery. [00:07:21] Speaker 01: Right? [00:07:22] Speaker 02: Yes? [00:07:22] Speaker 02: They did not, Your Honor. [00:07:23] Speaker 02: What those cases held was that the veterans claim survives. [00:07:28] Speaker 02: The substitute claimant continues that claim to completion, which must include an award of whatever past due benefits were awarded. [00:07:37] Speaker 02: There are no other questions. [00:07:46] Speaker 01: Mr. Tully? [00:07:48] Speaker 01: Good morning. [00:07:48] Speaker 01: How come the government didn't tell us about Smith? [00:07:52] Speaker 00: I apologize, Your Honor. [00:07:53] Speaker 00: It came to my attention when I received the court's order to be prepared to address an oral argument. [00:07:58] Speaker 00: So that's what I did. [00:08:02] Speaker 00: The Veterans Court correctly held that Ms. [00:08:04] Speaker 00: Piper was entitled only to reimbursement for last sickness and burial expenses. [00:08:09] Speaker 00: We believe that this appeal is resolved by the court's presidential decision in Smith. [00:08:15] Speaker 00: of the cases that Mr. Doak was mentioned right now, the only one that is mentioned in the briefing is the Merit case. [00:08:22] Speaker 00: I can tell you that there's nothing in Merit that's inconsistent with Smith. [00:08:26] Speaker 00: In fact, in that case, the court explained that substitution is not the same as entitlement, and that even after substitution is granted, entitlement is determined in accordance with 38 USC Section 5121, which contains the limitations on payments. [00:08:44] Speaker 00: We believe that Smith is dispositive, and we respectfully ask the court to affirm. [00:08:49] Speaker 01: OK. [00:08:50] Speaker 01: Thank you. [00:08:53] Speaker 01: Anything further, Mr. DeHart? [00:08:54] Speaker 01: No, Your Honor. [00:08:56] Speaker 01: OK. [00:08:56] Speaker 01: Thank both counsels. [00:08:57] Speaker 01: The case is submitted.