[00:00:00] Speaker 04:
Our next case is Calderon versus Collins, number 24-1847.

[00:00:06] Speaker 04:
Counselor Shunker, did I get it right?

[00:00:10] Speaker 00:
It's pronounced Shunker, Your Honor.

[00:00:12] Speaker 00:
Apologies if my phonetic pronunciation was misleading in any way.

[00:00:18] Speaker 04:
And you reserve three minutes of time for rebuttal?

[00:00:21] Speaker 00:
Yes.

[00:00:21] Speaker 00:
You may proceed.

[00:00:24] Speaker 00:
Good morning and may it please the court.

[00:00:25] Speaker 00:
Sean Shunker on behalf of Mr. Calderon.

[00:00:28] Speaker 00:
While the Veterans Court below purported to engage in a thorough analysis of Mr. Calderon's tolling claims, it did so in a manner that applied rigid categorical rules and incomplete and incorrect legal standards.

[00:00:41] Speaker 01:
Counsel, I have a question I'm going to ask both sides.

[00:00:45] Speaker 01:
You make an argument that Barrett II in 2006 requires the government to provide, quote, all records in its possession relevant to contested jurisdictional issues.

[00:00:58] Speaker 01:
In 2011, the Supreme Court held in Henderson v. Shinseki that the 120-day time limit of Section 7266A isn't jurisdictional, although an important procedural rule.

[00:01:13] Speaker 01:
This appeal was dismissed below due to timeliness under 7266A.

[00:01:18] Speaker 01:
So it's not jurisdictional.

[00:01:22] Speaker 01:
The secretary notes in a footnote, they don't

[00:01:26] Speaker 01:
mean to suggest that it is jurisdictional, but engage in discussion of case law prior to Henderson only to respond to your assertions?

[00:01:39] Speaker 01:
In light of Henderson, does Barrett 2 still apply to require the provision of relevant records in a 7266A untimeliness dismissal?

[00:01:49] Speaker 01:
Why or why not?

[00:01:52] Speaker 00:
We think so, Your Honor.

[00:01:54] Speaker 00:
We think Barrett II's rationale that in cases like this where the veteran is put in an inequitable position as compared to the merits, where they are unable to have access to documents that are uniquely in the government's possession, that the rationale of Barrett still applies.

[00:02:16] Speaker 00:
And we would just note that post-Henderson,

[00:02:18] Speaker 00:
in Dixon v. Shinseki, and I believe in the tumor case as well, this court reiterated its holding in Barrett, too, that the government has an obligation to provide those records when... Relevant.

[00:02:32] Speaker 00:
Relevant records when equitable tolling is raised based on a condition that is raised, that they have records that are relevant to that condition.

[00:02:44] Speaker 00:
What relevant records were not provided?

[00:02:46] Speaker 00:
There are a number of relevant records that are not provided.

[00:02:49] Speaker 00:
The board decision, which was actually in the record below, cites a number of them from appendix pages 18 to 21.

[00:02:55] Speaker 00:
There were VA treatment records in the possession of the VA.

[00:03:01] Speaker 00:
There were private medical records that would have also been part of the RBA.

[00:03:04] Speaker 00:
What do these records show that the Veterans Court wasn't aware of?

[00:03:10] Speaker 00:
Those records were not produced in Mr. Calderon or the Veterans Court, and at this time we do not know what exactly those records were, but we think that kind of flips the- You mean those records weren't produced?

[00:03:22] Speaker 00:
Did he ask for them?

[00:03:23] Speaker 00:
He did not ask for them, Your Honor, but we believe that baritone creates an affirmative.

[00:03:27] Speaker 03:
No, I understand, but they have to be relevant.

[00:03:29] Speaker 03:
And it seems to me that the veteran, his arguments about tolling here, relied largely on the fact that he had to travel to Mexico to bring his father back and that his father was suffering from dementia, which the court looked at thoroughly.

[00:03:44] Speaker 03:
And also, I think there was some discussion about how he had to help take care of his wife during her illness.

[00:03:53] Speaker 03:
How do those records relate to any of those issues?

[00:03:57] Speaker 00:
They don't relate to those issues, Judge Hughes.

[00:03:59] Speaker 00:
But we do think that his response to the Veterans Court fairly raised the issue of equitable tolling based on mental illness.

[00:04:05] Speaker 00:
And the Veterans Court understood his response to be raising that issue by addressing it.

[00:04:10] Speaker 00:
He explained that.

[00:04:12] Speaker 03:
And the Veterans Court addressed the fact that he had some mental problems.

[00:04:17] Speaker 03:
It's in the record.

[00:04:18] Speaker 03:
And said that that wasn't sufficient to show equitable tolling here.

[00:04:22] Speaker 00:
The Veterans Court said that was insufficient to show equitable tolling based on the record before the Veterans Court.

[00:04:28] Speaker 00:
And our argument is that without those documents, those documents may assist Mr. Calderon in demonstrating the record necessary to show equitable tolling based on mental illness.

[00:04:40] Speaker 03:
But all of that stuff that you're talking about is in the board's decision, is it not?

[00:04:45] Speaker 03:
I don't know exactly what mental conditions they're talking about.

[00:04:50] Speaker 03:
The Veterans Court was aware of these mental conditions and said it's still not enough to prevent him from either acting rationally or undertaking to file a timely notice of appeal.

[00:05:02] Speaker 03:
Well, I think that you're asking for documents that just would further

[00:05:08] Speaker 03:
support what the Veterans Court already knew about his condition.

[00:05:11] Speaker 03:
You're not alleging there's some unknown condition that wasn't out there.

[00:05:16] Speaker 00:
Well, for example, those VA treatment records may contain statements by medical professionals and psychiatrists regarding the extent of his memory loss, how it impacts his memory, and the extent of his memory loss, how that would impact.

[00:05:28] Speaker 00:
Did he make that argument to the Veterans Court as a basis for tolling?

[00:05:33] Speaker 03:
I mean, look, the VA obviously has obligations to assist with all kinds of things.

[00:05:39] Speaker 03:
But when you've missed a deadline to file a notice of appeal within the 120-day period, it's not the VA's duty to say no equitable tolling in the first instance.

[00:05:53] Speaker 03:
It's the veteran's obligation to come forth with sufficient reasons

[00:05:57] Speaker 03:
for equitable tolling, and he came forth with reasons.

[00:06:00] Speaker 03:
His father, his wife, some of his mental capacities, the Veterans Court looked at them thoroughly and said, none of these are sufficient for the entire time period.

[00:06:09] Speaker 03:
I think the Veterans Court accepted the fact that him having to travel to Mexico and bring his father back was a good reason.

[00:06:17] Speaker 03:
That all happened right around the time the board was issuing the decision.

[00:06:21] Speaker 03:
That can't account for the entire 69 days of delay.

[00:06:26] Speaker 03:
I mean, that decision was issued right before he got back.

[00:06:33] Speaker 03:
So he has to have something beyond that exceptional circumstance.

[00:06:36] Speaker 03:
And the Veterans Court looked at his wife's illness and his mental things and says, these are not sufficient for this period of delay.

[00:06:44] Speaker 03:
The fact that he was a caregiver for his wife is not something that's extraordinary that would prevent him from filing a notice of appeal.

[00:06:52] Speaker 03:
And his mental conditions, recognized by the board and the Veterans Court,

[00:06:56] Speaker 03:
are also not sufficient.

[00:06:58] Speaker 03:
That's all application of law to fact.

[00:07:01] Speaker 00:
Right?

[00:07:01] Speaker 00:
Respectfully, Your Honor.

[00:07:02] Speaker 00:
I think Barrett 2 makes quite clear that when a veteran alleges equitable tolling based on mental illness in a way that impeded their timely filing of their notice of appeal, Barrett 2 states that the government has an affirmative obligation to provide the Veterans Court and the veteran those documents.

[00:07:22] Speaker 01:
Those documents at best.

[00:07:25] Speaker 01:
would lead to a conclusion that Mr. Calderon suffers from PTSD and depression, right?

[00:07:34] Speaker 00:
Well, the documents may also contain statements.

[00:07:37] Speaker 00:
That's what you're alleging.

[00:07:38] Speaker 00:
That's correct, Your Honor, but the PTSD and depression, Mr. Calderon alleges that a symptom of his PTSD and depression is memory loss and increased forgetfulness aggravated by what was happening during this period regarding the loss of his parents and having to provide care for his parents.

[00:07:57] Speaker 00:
But he was able to provide care for his parents, wasn't he?

[00:08:01] Speaker 01:
He was able to provide care for his parents with assistance.

[00:08:03] Speaker 01:
Care for his parents involves, for example, providing them with medication.

[00:08:08] Speaker 01:
Correct, Your Honor.

[00:08:09] Speaker 01:
It involves taking them to appointments.

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

[00:08:15] Speaker 01:
Isn't that enough evidence for the board to say, well, he may have some memory loss.

[00:08:20] Speaker 01:
But obviously, it's not enough to prevent him from doing things that require scheduling and make a conclusion that he could have also mailed the notice.

[00:08:31] Speaker 00:
Well, I think, Your Honor, this gets to kind of the Barrett 1 issue we raised, which is that the veteran court's decision only ever applied the second prong of Barrett 1.

[00:08:41] Speaker 00:
And the government does not dispute that those two prongs are two different

[00:08:46] Speaker 00:
ways of tolling based on mental illness in the red brief.

[00:08:50] Speaker 00:
And so one cannot deliberately decide to do what one does not remember, I think is a way of thinking about this.

[00:09:00] Speaker 00:
There can be ways that mental illness

[00:09:03] Speaker 00:
affects one's deliberate decision making, but is not so incapacitating so as that it cannot function in daily life, which goes to the second prong of Barrett 1.

[00:09:14] Speaker 00:
And so the veterans were never considered that basis.

[00:09:20] Speaker 04:
Did you allege the PTSD, mental illness, and dementia aspect of that, that it covered the entire period that we're talking about, the tolling period?

[00:09:33] Speaker 00:
We do allege that the PTSD and his memory loss tolls the period to the point which he remembered about.

[00:09:42] Speaker 00:
You're saying memory loss, but that's not the standard, right?

[00:09:47] Speaker 03:
What you think that they didn't do from Barrett 1 is that he couldn't engage in deliberate decision making because the Veterans Court didn't specifically reference that.

[00:10:00] Speaker 03:
It talked about him being incapable of handling his own affairs.

[00:10:04] Speaker 03:
But all the stuff that Judge Wallach just pointed to you about arranging for doctor's appointments, arranging for, I think he even arranged for a care facility for his father and stuff like that, all of that stuff goes to both things.

[00:10:21] Speaker 03:
Clearly, if he can do that, he's engaging in deliberate decision making.

[00:10:28] Speaker 00:
I agree with you that they can be relevant to deliberate decision making.

[00:10:32] Speaker 00:
Where I disagree is that I think they do go towards more of the inability to handle affairs and function society prong, because there are ways that one can function in society but have a mental illness that incapacitates them with respect to the timely filing of their appeal.

[00:10:51] Speaker 00:
And I think it's helpful to think about.

[00:10:54] Speaker 00:
So he can undertake

[00:10:55] Speaker 03:
the gargantuan task of finding a care facility for his father who suffers from dementia, but he can't mail in a notice of appeal?

[00:11:05] Speaker 03:
You've got to point to some legal misinterpretation.

[00:11:10] Speaker 03:
Even now, what you're pointing to is, at best, a misapplication of a legal standard to the facts of this case.

[00:11:17] Speaker 03:
And we don't even have jurisdiction over that.

[00:11:19] Speaker 00:
Well, respectfully, Your Honor, I don't think the Veterans Court ever applied the full legal standard to the facts of this case.

[00:11:26] Speaker 03:
When you use the word apply and say that that was error, then that's a misapplication of law to fact.

[00:11:32] Speaker 03:
Even if it is a misapplication, we don't have jurisdiction.

[00:11:36] Speaker 03:
Respectfully, Your Honor, I think that... They have to have misunderstood and articulated the wrong legal standard, and they didn't do that.

[00:11:44] Speaker 03:
Did they?

[00:11:45] Speaker 00:
Well, I think they did.

[00:11:46] Speaker 03:
In the Veterans Court decision, where you think they articulated the wrong legal standard?

[00:11:55] Speaker 00:
I think, Your Honor, when the Veterans Court states that he has the burden of proving that the particular infirmity causing him to be incapable of handling his own affairs are unable to function in society,

[00:12:07] Speaker 00:
That is an incomplete recitation of the legal standard.

[00:12:11] Speaker 00:
And permitting the Veterans Court, which the Secretary can see is a disjunctive standard with two different prongs.

[00:12:19] Speaker 00:
Permitting the Veterans Court to just pick and choose which prong it applies, I think, is a legal error.

[00:12:25] Speaker 00:
Because the Veterans Court is obligated to apply the full legal standard

[00:12:28] Speaker 00:
In the first place, yes.

[00:12:31] Speaker 04:
I do have a question for you.

[00:12:34] Speaker 04:
Make sure it comes up and everybody can address it.

[00:12:37] Speaker 04:
But I think one of the arguments is that the Veterans Court adopted a categorical rule with respect to that taking care of ailing parents cannot be an extraordinary circumstance under equitable tolling.

[00:12:55] Speaker 04:
Did I say that right?

[00:12:56] Speaker 04:
Can you articulate that argument?

[00:13:00] Speaker 00:
Yes, Your Honor.

[00:13:00] Speaker 00:
I think, to be brief, our argument is that the Veterans Court's analysis was one sentence, that it was unconvinced that appellant's care for a sick parent could qualify as an extraordinary circumstance, full stop.

[00:13:13] Speaker 00:
Isn't that a factual determination?

[00:13:15] Speaker 00:
Well, we think that that statement read in context of the full order is actually more of a categorical rule for two reasons.

[00:13:22] Speaker 00:
First is the Veterans Court did not

[00:13:24] Speaker 00:
do any further case-specific analysis as this court has said in Snead and other cases that is required as part of equitable tolling.

[00:13:32] Speaker 00:
The second is the Veterans Court never addressed the care for Mr. Calderon's mother.

[00:13:37] Speaker 00:
And if the in-home care for Mr. Calderon, if they were applying, if the Veterans Court wasn't applying... The parent too, isn't she?

[00:13:44] Speaker 00:
She is.

[00:13:45] Speaker 00:
She is.

[00:13:46] Speaker 00:
But that paragraph is in the context of the Veterans Court decision.

[00:13:50] Speaker 03:
Do you think the insufficient, in your view, analysis demonstrates that they created a categorical rule?

[00:13:58] Speaker 00:
Not necessarily, Your Honor.

[00:14:00] Speaker 00:
I think it's the combination.

[00:14:01] Speaker 03:
They cited the right case law.

[00:14:02] Speaker 03:
They understand that they can't create categorical rules, because we've told them that.

[00:14:07] Speaker 03:
Why would we presume that they did that anyway, rather than just make the case-specific determination

[00:14:13] Speaker 03:
that the circumstances here of his care for his parents was insufficient for equitable tolling.

[00:14:20] Speaker 00:
Well, I think this court made clear in James and in other cases that the question is what standard the Veterans Court applies, not what it recites.

[00:14:29] Speaker 00:
And in James, the court also cited Snead and made the same statement.

[00:14:32] Speaker 00:
Yes, and isn't the better reading here.

[00:14:33] Speaker 03:
They understand that they don't create categorical rules.

[00:14:37] Speaker 03:
And in this case, the care for his parents was insufficient.

[00:14:42] Speaker 03:
as a matter of fact, to toll the time for appeal.

[00:14:46] Speaker 00:
Respectfully, Your Honor, our position is that given the way the court's order reads and the failure to address the in-home care for his mother, we believe that it reaches a categorical rule.

[00:14:57] Speaker 00:
Your answer to my prior question really is yes.

[00:14:58] Speaker 03:
You view the paucity of explanation here as creating a categorical rule rather than just, in your view, an unexplained decision.

[00:15:08] Speaker 00:
Well, we think it can read as a categorical rule, but we've also separately made arguments in the brief why the failure to address the in-home care for the mother would also be a legal error.

[00:15:19] Speaker 04:
OK, you're out of time.

[00:15:20] Speaker 04:
We'll restore some of your rebuttal time back.

[00:15:22] Speaker 04:
Thank you, Your Honor.

[00:15:24] Speaker 04:
OK, thank you.

[00:15:27] Speaker 04:
Counselor, you?

[00:15:38] Speaker 02:
I think Your Honor may have pleased the Court.

[00:15:41] Speaker 02:
I guess I'll start by addressing the Barrett II issue.

[00:15:45] Speaker 02:
So our first argument there was, I mean, that issue was not raised in the Veterans Court.

[00:15:49] Speaker 02:
So there was, Mr. Calderon was pro se initially, but after the dismissal motion,

[00:15:58] Speaker 02:
the order there.

[00:16:01] Speaker 02:
He obtained counsel.

[00:16:02] Speaker 02:
There was a reconsideration motion filed.

[00:16:05] Speaker 02:
Mr. Calderon's counsel could have raised that issue to the Veterans Court, and I think the Veterans Court would have... He could have asked for the record.

[00:16:12] Speaker 02:
He could have asked for the records, but even just sort of taking a step back, I mean, a lot of the Barrett II decision is in 2006.

[00:16:20] Speaker 02:
We now have a situation where the VA has gone through a long history of getting records

[00:16:28] Speaker 02:
in electronic form.

[00:16:30] Speaker 02:
And there's certainly a method, even if your attorney is not accredited, there's a method for the individual to fill out a form or written request to get those records.

[00:16:40] Speaker 02:
So even in the situation at reconsideration where he's represented by counsel,

[00:16:45] Speaker 02:
they can submit the form and get these records.

[00:16:48] Speaker 02:
What we have now is just complete speculation about what is in the claims files, which they could have gotten all along this period of time.

[00:16:59] Speaker 02:
But sort of to more fully address the Barrett II issue,

[00:17:03] Speaker 02:
There's a couple of points there.

[00:17:05] Speaker 02:
One, just in terms of applying Barrett 2, what this court held in tumor was, you're really looking at whether these records were actually necessary.

[00:17:14] Speaker 02:
There's no actual dispute here that the records, even now, there's no allegation that there's some specific record saying X that's out there.

[00:17:26] Speaker 02:
It's just sort of a blanket inquiry that we... How can he make that assertion if he hasn't seen the records?

[00:17:33] Speaker 02:
Well, because he's making allegations about how he's not... This is in the context of equitable tolling, why he cannot actually have met the deadline.

[00:17:42] Speaker 02:
So if there is something out there,

[00:17:44] Speaker 02:
that would help on that point.

[00:17:47] Speaker 02:
So the Veterans Court accepted sort of as true these sort of, you know, general conclusions that there was forgetfulness and whatnot.

[00:17:56] Speaker 02:
But also Mr. Caldron submitted other records.

[00:17:58] Speaker 02:
If you take a look at Appendix 34, there's records there that essentially states that although there is, you know, some issues with forgetfulness, it doesn't affect the function.

[00:18:11] Speaker 04:
Had he have asked for the records with the

[00:18:14] Speaker 04:
Would the board been compelled to provide them or the administration?

[00:18:20] Speaker 02:
Well, Your Honor, it's the Veterans Court.

[00:18:23] Speaker 02:
We're at the Veterans Court.

[00:18:25] Speaker 02:
But if he had asked the VA, the VA could have provided them.

[00:18:30] Speaker 02:
They probably would have provided the claims file.

[00:18:32] Speaker 04:
The VA would be under an obligation to provide it at that point had he asked for the records.

[00:18:37] Speaker 02:
I think I want to, just to be clear there, there's a difference between them being able to... There's not a yes or no to this?

[00:18:44] Speaker 02:
Well, there is a standard.

[00:18:46] Speaker 04:
Is there an obligation to provide the records if he requested them?

[00:18:50] Speaker 02:
Well, if he filled out the form, yes.

[00:18:52] Speaker 04:
If he went forward and did a written request... That obligation exists regardless of the content of the record.

[00:18:58] Speaker 04:
Nobody knows at that time.

[00:19:00] Speaker 04:
But if he asked for the records, you're obligated to provide them.

[00:19:04] Speaker 02:
If he had asked for the records under just sort of the normal VA procedure, if there's a written request, you can get the claims file.

[00:19:13] Speaker 02:
Any veteran?

[00:19:15] Speaker 02:
Yes, any veteran could do that.

[00:19:17] Speaker 02:
It could have happened all along this period of time.

[00:19:20] Speaker 02:
I mean, that's not sort of a new process.

[00:19:22] Speaker 04:
And I think part of the issue is that whether there's an obligation to provide the records if a veteran requests them.

[00:19:35] Speaker 04:
That's the question I'm asking you.

[00:19:38] Speaker 04:
Well, you still haven't answered it well.

[00:19:41] Speaker 04:
I mean, you're saying, yes, there's an obligation, but he could have gone anywhere else, and he could have done other things.

[00:19:48] Speaker 04:
Well, I think there's two separate things.

[00:19:51] Speaker 01:
Let me give you some argument advice.

[00:19:54] Speaker 01:
When the court starts a question with two words, any veteran, you don't get to decide what the question is.

[00:20:04] Speaker 01:
You said, yes, any veteran can.

[00:20:07] Speaker 01:
And you went on.

[00:20:09] Speaker 01:
I hadn't finished my question to you.

[00:20:11] Speaker 02:
Well, I apologize, Your Honor.

[00:20:13] Speaker 01:
You should, but you should also profit.

[00:20:17] Speaker 01:
Because my understanding is that any veteran can go online to the Department of Veterans Affairs and pull up an electronic page

[00:20:28] Speaker 01:
in which they enter their name and whatever the veteran's ID number is and so on.

[00:20:36] Speaker 01:
And at that point, on a records request, and at that point, the Department of Veterans Affairs is obligated to provide them with that information.

[00:20:47] Speaker 01:
Am I incorrect?

[00:20:49] Speaker 02:
No, Your Honor, you're not.

[00:20:50] Speaker 02:
There's a form.

[00:20:52] Speaker 01:
But they're obligated.

[00:20:53] Speaker 02:
Form 2010-206.

[00:20:57] Speaker 02:
Yes, to provide the records.

[00:20:59] Speaker 03:
But again, I'm just- But the obligation is because of different statutory- You're interrupting again.

[00:21:05] Speaker 03:
You shouldn't do that.

[00:21:06] Speaker 03:
The obligation is because of different statutory and regulatory provisions.

[00:21:11] Speaker 03:
It's not an obligation engendered by our equitable tolling rule law.

[00:21:17] Speaker 03:
That is, records have to be provided when relevant.

[00:21:21] Speaker 03:
And so the Veterans Court could order records to be provided when relevant.

[00:21:26] Speaker 03:
The VA, as a general course, whether they have an appeal to the Veterans Court or not, has to turn over records.

[00:21:33] Speaker 03:
I assume there's no reason for you to dispute that.

[00:21:38] Speaker 03:
I mean, it's just a matter, as Judge Wally points out, it's just a matter of veterans are always entitled to their treatment records.

[00:21:44] Speaker 03:
And he could have gotten them here, and he didn't.

[00:21:49] Speaker 03:
Right?

[00:21:51] Speaker 02:
That's correct, Your Honor.

[00:21:52] Speaker 02:
Yes.

[00:21:53] Speaker 03:
If I may say... Well, I don't understand why you're fighting the notion that the VA has an obligation to turn over records.

[00:22:01] Speaker 03:
It is a simple yes or no question.

[00:22:03] Speaker 03:
Maybe what you were fighting is the notion that it was obligated under equitable tolling precedent.

[00:22:08] Speaker 03:
And if that's what you were trying to say, then I understand it, but that's not what you were saying.

[00:22:14] Speaker 02:
Respectfully, Your Honor, that's exactly what I'm trying to say.

[00:22:17] Speaker 03:
We're making that distinction.

[00:22:19] Speaker 03:
Because if the question is, generally, is the VA obligated to turn over records, the answer is yes.

[00:22:25] Speaker 03:
Full stop, right?

[00:22:28] Speaker 02:
Yes.

[00:22:29] Speaker 02:
They are entitled to get the records through the VA.

[00:22:32] Speaker 02:
They can fill out the form.

[00:22:33] Speaker 03:
The records that are identified are the ones he identified from the board decision, which were referenced by the board in a discussion of conditions

[00:22:41] Speaker 03:
that the Veterans Court accepted as true.

[00:22:44] Speaker 03:
So there's no indication in the record here that these records provide any additional information at all.

[00:22:51] Speaker 03:
There's not some undiscovered reason out there for equitable tolling, as I understand it.

[00:22:56] Speaker 03:
The Veterans Court credited every single argument he made as a matter of fact that

[00:23:02] Speaker 03:
He had to care for his father.

[00:23:04] Speaker 03:
He had to care for his mother.

[00:23:05] Speaker 03:
Maybe he had to care for his wife.

[00:23:06] Speaker 03:
He had to do all this kind of stuff.

[00:23:08] Speaker 03:
They didn't dispute and say, no, that's not true.

[00:23:10] Speaker 03:
They accepted all of that and said, still, as a matter of equitable tolling, that's insufficient.

[00:23:16] Speaker 03:
So what else in those records out there could they need?

[00:23:22] Speaker 03:
I assume your answer is there's nothing, because he hasn't identified another basis for equitable tolling that

[00:23:29] Speaker 03:
there are records that are relevant to that have not been produced.

[00:23:34] Speaker 03:
Can I turn you to the categorical issue?

[00:23:37] Speaker 03:
If the Veterans Court's decision said care for family members is never a basis for equitable tolling, you would agree that's legally incorrect, right?

[00:23:46] Speaker 02:
Yes.

[00:23:47] Speaker 02:
We would agree with that.

[00:23:48] Speaker 02:
I mean, that just goes into the sort of Snead and James line of cases, but that's not what was said here.

[00:23:55] Speaker 02:
And so sort of,

[00:23:58] Speaker 02:
implying that the Veterans Court who laid out the correct law, cited the correct cases, didn't state that it was applying an incorrect rule of law.

[00:24:10] Speaker 02:
That we'd be implying that they did doesn't really seem to comport with.

[00:24:14] Speaker 04:
So did the Veterans Court improperly adopt a categorical rule that taking care of your parents that have dementia

[00:24:24] Speaker 04:
while you yourself have the disease that cannot be grounds for exceptional circumstances in analysis involving equitable tolling?

[00:24:39] Speaker 02:
No, Your Honor.

[00:24:39] Speaker 02:
They didn't adopt a categorical rule.

[00:24:42] Speaker 02:
They tied it back into the fact.

[00:24:44] Speaker 04:
But where did they explain what they did do?

[00:24:47] Speaker 02:
Well, I mean, I think if you look at Appendix IV, I mean, I think

[00:24:51] Speaker 02:
Well, even starting before that, Appendix 2 and Appendix 3 of the decision, the Veterans Court went through in detail and identified the various explanations that Mr. Calderon set forth with respect to equitable tolling.

[00:25:08] Speaker 02:
You know, with respect to the issue that's the sort of statement that's been seized upon, it's really the statement on Appendix 4, sort of maybe the sixth line of the first full paragraph.

[00:25:22] Speaker 02:
And the court is unconvinced that appellants caring for his sick parent is an extraordinary circumstance, warranting equitable tolling.

[00:25:30] Speaker 02:
What that's tying back to is the explanations that... I want to look at the record.

[00:25:37] Speaker 04:
I'm quoting the Veterans Court, and that is that the Veterans Court said that it was unconvinced that Mr. Calderon's caring for his sick parent is an extraordinary circumstance, warning inequitable tolling.

[00:25:56] Speaker 04:
That almost sounds like a categorical rule.

[00:25:58] Speaker 04:
All you have to do is substitute somebody else's name for Mr. Calderon.

[00:26:06] Speaker 04:
And one of the reasons is because I don't see the analysis in the decision of the Veterans Court.

[00:26:16] Speaker 02:
You know, pointing back to appendix two and three, I mean, what the Veterans Court was doing was summarize.

[00:26:22] Speaker 02:
They have this, you know, just taking a step back, the Veterans Court has Mr. Call, their own submission.

[00:26:27] Speaker 02:
It lays out a number of different explanations.

[00:26:30] Speaker 02:
And it goes through those.

[00:26:31] Speaker 02:
And with respect to this sentence, the Veterans Court could have said something on the lines of, look,

[00:26:40] Speaker 02:
It's impossible for taking care of a sick parent to be a basis for equitable tolling.

[00:26:46] Speaker 02:
But they did not do that.

[00:26:49] Speaker 02:
They left open the possibility under a different set of facts.

[00:26:53] Speaker 02:
For example, if somebody- But why did they do that?

[00:26:56] Speaker 02:
Well, just based on the plain language of that statement, because it's tying into his- The statement that I read?

[00:27:02] Speaker 02:
The statement that you read.

[00:27:04] Speaker 02:
It's tying into his-

[00:27:06] Speaker 04:
his sick parent, not just every... That's the full basis of the Veterans Court's analysis, that statement that I read?

[00:27:17] Speaker 01:
I would point out that that so-called sentence is actually a clause because it begins with an and.

[00:27:24] Speaker 01:
And because it begins with an and, it ties back to the prior sentences.

[00:27:31] Speaker 03:
It ties back to the whole paragraph, right?

[00:27:33] Speaker 03:
The beginning of that paragraph says,

[00:27:35] Speaker 03:
Well, the court is sympathetic to the events the appellant describes, which is referencing the recitation of facts earlier on, which I think you've been alluding to, and recognizing that all of these are the basis for the argument, and then explaining they're insufficient in this case to just to be an extraordinary circumstance.

[00:27:55] Speaker 03:
I mean, I understand.

[00:27:56] Speaker 03:
This is not the best opinion in the history of Veterans Court's opinions.

[00:28:02] Speaker 03:
It could have been longer and more fulsomely explained.

[00:28:06] Speaker 03:
On the other hand, our job is not to correct opinion writing.

[00:28:10] Speaker 03:
It's to discern if there's any legal error.

[00:28:13] Speaker 03:
And I see no statement in here that says, as a matter of law, the care of six parents can never be an exceptional circumstance.

[00:28:22] Speaker 02:
That is entirely correct, Your Honor.

[00:28:24] Speaker 02:
And I also would say that Mr. Calderon gave this submission and has a bunch of different reasons.

[00:28:32] Speaker 02:
And in this submission, there's a lot of

[00:28:36] Speaker 02:
There's a lot of documents that were provided about powers of attorney.

[00:28:41] Speaker 02:
For example, he was taking care of his parents at the time.

[00:28:46] Speaker 02:
And there's a lot of information in there.

[00:28:49] Speaker 02:
And so for the Veterans Court, although that sentence says what it says, I think read in the context of what was provided to them, that's more than sufficient to not be applying a categorical rule.

[00:29:02] Speaker 02:
And those are sort of the per se, you know, the sort of legal issues that Snead and James had identified.

[00:29:10] Speaker 02:
I do just want to circle back very quickly to Judge Wallach's question just sort of about Barrett 2.

[00:29:18] Speaker 02:
I mean, I think, you know, we address Barrett 2 in the context of

[00:29:23] Speaker 02:
the standard, whether these documents were necessary.

[00:29:26] Speaker 02:
And we obviously pointed out in the footnote that this really isn't a jurisdictional issue.

[00:29:30] Speaker 02:
So if you do look at Barrett 2, there's a couple of things.

[00:29:33] Speaker 04:
One.

[00:29:35] Speaker 04:
Before we go there, let me ask you a question.

[00:29:38] Speaker 04:
So the Veterans Court did make a determination that traveling abroad or being abroad could be an extraordinary circumstance.

[00:29:49] Speaker 02:
That's correct, Your Honor.

[00:29:50] Speaker 04:
I mean, I think- So what if you're traveling abroad to take care of your ailing parent?

[00:29:57] Speaker 04:
Based on the comment of the Veterans Court, that is not an extraordinary circumstance?

[00:30:04] Speaker 04:
The fact that you've got to take care of your ailing parent while you travel?

[00:30:08] Speaker 02:
Well, Your Honor, there has to be a fact-specific inquiry.

[00:30:11] Speaker 02:
So I think in a certain situation, sure, let's just say your parent was in time.

[00:30:16] Speaker 04:
I see.

[00:30:17] Speaker 04:
I do see where the Veterans Court is making factual findings.

[00:30:24] Speaker 04:
And it does do that.

[00:30:26] Speaker 04:
But the problem is the way everything is wrapped up.

[00:30:29] Speaker 04:
And it's wrapped up with that comment that I've been pointing out to you.

[00:30:35] Speaker 04:
He's got two alien parents.

[00:30:39] Speaker 04:
One of them he takes, he takes to a foreign country in order to put him into hospice.

[00:30:43] Speaker 04:
He's got his mother, who's also alien with dementia.

[00:30:48] Speaker 04:
He's got his wife.

[00:30:49] Speaker 04:
They got sick with COVID.

[00:30:50] Speaker 04:
All this during this period of time, of months that we're talking about, then he himself has dementia.

[00:30:57] Speaker 04:
PTSD related dementia.

[00:31:00] Speaker 04:
It just seems to me in totality though, in totality, the totality of the circumstances,

[00:31:08] Speaker 04:
could warrant.

[00:31:10] Speaker 04:
a finding of exceptional circumstance.

[00:31:12] Speaker 04:
I'm not saying that it does.

[00:31:13] Speaker 04:
That's up to the Veterans Court and the board to determine.

[00:31:16] Speaker 04:
But what I'm saying is that when they wrap up this analysis that you're talking about with this one statement, that seems insufficient to me.

[00:31:25] Speaker 04:
And it seems to me that somebody can come along later on and say, well, we have a case here where the Federal Circuit says that taking care of a sick parent is not a special circumstance that can mean equitable tolling.

[00:31:41] Speaker 02:
Respectfully, Your Honor, I think the response to that would be these are individual fact-specific cases.

[00:31:48] Speaker 02:
This Calderon case did not set forth a rule that the Veterans Court was not trying to do that.

[00:31:54] Speaker 02:
And this court would not be saying that taking care of an elderly parent can never be an extraordinary circumstance.

[00:32:01] Speaker 02:
That's just not what's going on here.

[00:32:03] Speaker 04:
Just as... I don't doubt that the Veterans Court was trying to do that, to hide the ball or mislead.

[00:32:13] Speaker 04:
But we reverse the board and the Veterans Court all the time.

[00:32:18] Speaker 04:
Often.

[00:32:20] Speaker 04:
Because the board or the Veterans Court misapplies the law.

[00:32:26] Speaker 04:
Or makes errors what could potentially be related here.

[00:32:33] Speaker 04:
So anyway, you've answered my question, and I appreciate that.

[00:32:38] Speaker 02:
May I say one more thing, though?

[00:32:40] Speaker 02:
Sure.

[00:32:40] Speaker 02:
I think with respect, much of the equitable tolling law is really application of law to facts, which is really outside this court's jurisdiction.

[00:32:48] Speaker 02:
What we have here, when you look at Snead and

[00:32:51] Speaker 02:
Aldrich and cases like that, there's a very narrow set of circumstance where what we're talking about is actually employing an incorrect standard.

[00:32:59] Speaker 02:
And so that's when we're talking about per se rules or just limiting it to individual fact, comparing it to individual fact patterns.

[00:33:07] Speaker 02:
So when we're talking about someone else may look at this fact pattern and think and determine that there was a basis for equitable tolling, that's really just application of a lot of facts.

[00:33:20] Speaker 02:
And if there's nothing further, we would just ask that the court affirm the decision of the veterans.

[00:33:38] Speaker 00:
Just a few points on rebuttal, Your Honor.

[00:33:43] Speaker 00:
Starting with the extraordinary circumstance,

[00:33:45] Speaker 00:
We understand, I think at appendix three, the Veterans Court does summarize a lot of the facts surrounding Mr. Calderon's case and what was occurring here.

[00:33:55] Speaker 03:
If we determine that there's no categorical rule, then there's no legal error, right?

[00:33:59] Speaker 03:
And it's just application of law to fact.

[00:34:01] Speaker 03:
And even if we disagreed and thought it should have been an extraordinary circumstance, we can't assess that.

[00:34:08] Speaker 03:
We can't review that.

[00:34:09] Speaker 03:
That's application of law to fact that's outside of our jurisdiction.

[00:34:13] Speaker 00:
That's correct, Judge Hughes.

[00:34:15] Speaker 00:
We respectfully submit here that in this context with this statement where there was no explanation provided other than that one sentence, all you would have to do is substitute, to Judge Rayna's point, all you would have to do is substitute his, in any statement from a veteran's court going forward, just have a short statement and make it about his or her, and that would be enough to make it.

[00:34:37] Speaker 04:
What was the categorical rule that you argued was established?

[00:34:42] Speaker 00:
The categorical rule was that the care for a sick parent could not qualify as an extraordinary circumstance.

[00:34:50] Speaker 03:
Why would we read it that way when the Veterans Court has cited the correct law?

[00:34:54] Speaker 03:
You're saying that going forward they can cite this case for a categorical rule.

[00:34:58] Speaker 03:
Well, the Veterans Court will know.

[00:35:00] Speaker 03:
They can't do that.

[00:35:01] Speaker 03:
And they didn't do that here.

[00:35:03] Speaker 03:
They said specifically his care for his parents is not an exceptional circumstance.

[00:35:08] Speaker 03:
You're worried maybe in the future that that will be viewed as a categorical rule?

[00:35:13] Speaker 03:
Well, if it is, then we'll reverse it.

[00:35:16] Speaker 03:
But I suspect the veterans courts is not going to do that.

[00:35:19] Speaker 03:
I don't understand when it is tailored very specifically to the facts of this case, why you want to, because the other thing is even if we send it back, all they're going to do is say, no, we didn't create a categorical rule.

[00:35:32] Speaker 03:
We said based on these circumstances.

[00:35:35] Speaker 00:
Respectfully, Your Honor, I don't think just the inclusion of the possessive adjective, his, necessarily means the court applied the fact-specific analysis.

[00:35:44] Speaker 03:
But it's also not necessarily indicative that they applied a categorical rule.

[00:35:49] Speaker 03:
And why would we ever read something in a way that's a legal error when it could be read to be legally not an error?

[00:35:58] Speaker 03:
Well, as we argued in- When they cited the right case law.

[00:36:02] Speaker 00:
Well, I think the James case makes quite clear that just the citation of the case law is not sufficient.

[00:36:07] Speaker 00:
And two, in James' statement.

[00:36:08] Speaker 00:
Sure.

[00:36:09] Speaker 03:
If they cite the correct case law and then make a legal misstatement somewhere else, this is not a legal misstatement.

[00:36:14] Speaker 03:
In order for it to be a legal misstatement, you have to say that, well, even though it says it's about the factual circumstances here, they really meant in all circumstances, right?

[00:36:24] Speaker 00:
That's what we have to read it as for you to prevail.

[00:36:27] Speaker 00:
That's correct, Your Honor.

[00:36:28] Speaker 00:
I would just point that in the James case, the statement at issue was that appellants' fallen mailbox flag was not an extraordinary circumstance in the Veterans Court decision.

[00:36:42] Speaker 00:
Yes.

[00:36:42] Speaker 03:
In that case, we determined that they were creating a categorical rule that the mailbox stuff could never be a basis.

[00:36:50] Speaker 03:
That's the way we read it.

[00:36:52] Speaker 03:
But that's not.

[00:36:53] Speaker 03:
And the Veterans Court wrote it that way, too.

[00:36:56] Speaker 03:
They didn't write it in this circumstance the mailbox flag was insufficient.

[00:37:00] Speaker 03:
They said the mailbox flag is insufficient.

[00:37:03] Speaker 03:
This one is in this circumstance.

[00:37:06] Speaker 00:
I understand, Your Honor.

[00:37:07] Speaker 00:
If I could just make one point on Barrett 2.

[00:37:09] Speaker 00:
I understand I'm running past my rebuttal time.

[00:37:14] Speaker 01:
I want to ask you a question.

[00:37:17] Speaker 01:
Since we're discussing grammar, address my point that the

[00:37:24] Speaker 01:
Statement upon which you rely as a categorical rule is not, in fact, a complete sentence and is necessarily conjoined with a prior language.

[00:37:38] Speaker 01:
A complete sentence cannot begin with and.

[00:37:40] Speaker 01:
It is a conjunction.

[00:37:50] Speaker 00:
It's unclear what the and is exactly pulling in there, Your Honor.

[00:37:55] Speaker 00:
But it is pulling in something.

[00:37:57] Speaker 00:
You would agree that.

[00:37:58] Speaker 00:
I don't necessarily agree with that, Your Honor.

[00:38:00] Speaker 00:
I think and can just mean the court is, Veterans Court is making an additional point that, in addition, the court is unconvinced that appellants caring for a sick parent is an extraordinary circumstance, warranting equitable tolling.

[00:38:12] Speaker 00:
That's how I read that statement, Your Honor.

[00:38:14] Speaker 00:
So I don't think it's pulling in anything more than that.

[00:38:19] Speaker 04:
OK, we thank you for your argument.

[00:38:21] Speaker 04:
We thank the whole party for the argument.

[00:38:23] Speaker 04:
Thank you, Your Honor.

[00:38:25] Speaker 04:
And the case will be taken under submission.