The next case for arguments is 2012-7077-3 versus 10-8. Mr. Bender, I don't know if you feel happier sad that you've lost your audience. I guess this is not as important to as many people. It's important to a lot of people who are not here. And they're all important to us. What makes you crispy? May I please record my name as Thomas Bender, and I'm here on behalf of the appellant, Gary, I'm sorry. And this, as you know, is a feel from a denial of a petition for Red Amanda and Miss Pyle, the veteran's court. The central issue regards the interpretation of the new Substitution statute. I say new, it was enacted in 2008, a Substitution statute that permits certain beneficiaries, survivor beneficiaries of a deceased veteran to be substituted into the veteran's actual claim. Instead of it being an approved benefits claim, they come into the veterans claim and they can prosecute that claim to completion. And I'm a little confused about what you're arguing in this case. There seem to be two things, I guess, you want either of those. You think you have the right to be substituted. Your client has the right to be substituted. But it's also, I guess, aren't you really arguing that the board, you have the right to have the board rule on your motion without sending it out to the secretary? That's precisely it
. And so it's just the second and not the first. You're not asking us to decide your right to be substituted. You're just complaining. I am not today. I will add not to acknowledge that in brief, we argue that he will be eligible for substitution. And therefore, the remain should include in order that the board decide within the context of the deceased veterans appeal. And when I say within the context of the deceased veterans appeal, I mean the appeal number that the veteran had, the deceased veteran had, at the board, because the way that it works right now under the facts letter, which has been in existence since 2010, provides dispositive guidance to the VA. They must dismiss the deceased veterans appeal and refer the substitution motion to the original jurisdiction for decision in the first instance. So then they get the number back. If they are substituted, then they refer back into that veterans, the deceased veterans claim is revived and they are into that claim. But we are assertion. But if you're not substituted, then you get review of that decision. We get review of that decision. It becomes a detract. But if you get review and you're not put back in line, where you are looking at it
. No, in other words, if they, as in this case, the RO denied substitution, we haven't appeal to the board. If it's still denied, we haven't appeal to the veteran score. If it's still denied, we haven't appeal to this board. And if it's forward side that we were entitled to the substitution, then we will back the board to prosecute the merits of the veterans appeal. And at that point, you would get your old number back. That's right. And our position is that completely eviscerates the entire purpose or the substitution statute, which was to eliminate or at least, address the delay that occurs because under the former, the pre-2008 procedure, when the veteran died, his claim died with him. But his or her claim died with him. But an accrued benefits claimant could bring a separate accrued benefits claim. But it had to start with a different petition or claim as a regional office. And they basically had to rejuvenate the entire claim all along the block all along the block. Council, I can tell you that. I probably agree with the merits of your argument. Here's a problem I'm having. You're before us on a random and dangerous one, appeal at one
. And in order for a red to issue, one of the things you must show is that the petitioner must lack an adequate alternative means to a pay relief. You just got through describing this alternative means to a pay relief. I would, in all terms, it means in no way an adequate means. The determination and that. It's a prem court case on very clear that even if there's some hardships that is caused by delay, that doesn't mean that the alternative means don't exist. Right. But I think that the alternative means has to be determined by what is the requested relief that they have a clear and unconverted right to. And in the secretary's brief, their focus on the relief that we seek is mere substitution. And of course, the procedure that I described isn't adequate alternative means to substitution. But the relief that we seek, it's not just substitution, the relief that we seek here is a remand order that tells the board you have to, the number one, reinstate the veterans appeal. And you decide the board sides the substitution question in the first instance in the context of that appeal because the purpose of the statute was to avoid the delay of having to go back to the beginning. I think it's very instructive. But here's a problem with that argument. You have to prove a clear and an indisputable right to that relief. But the statute itself allows the establishment of regulations to implement the statute
. So it obviously didn't think that the methodologies were so clearly spelled out in the statute that we could say if a clear and indisputable right is based on the space of the statute along. Well, let's look at it and when we're talking about the timing here. And there is something that I want to say before we get too far. I mentioned before that in the briefing we had argued that we had a clear right substitution. In preparing for this general argument, I realized that there is a jurisdictional issue that makes the substitution question premature. And that's because briefly the way this case played out was that Mr. Tremes's father, after 27 years after his initial claim was denied, 27 years earlier, his claim was reopened. He was granted service connection for PTSD. And he was assigned an effective date that it was based on new and material evidence. So he was assigned an effective date that was the date that he filed his request for to reopen his claim. His appeal to the board was, I should be entitled to consideration for an earlier effective date because under the provisions of 3.1560, that was pending when he died. When he died, Mr. Tremes, the son filed a motion directly with the board, asking the board to grant the substitution that he could complete, enter into his father's appeal and complete it from that point forward. The board did not deny or grant his motion to substitute the board instead of ruling on the merits on that, dismiss the appeal and then refer the matter to the agency of original jurisdiction for decision in the first instance
. So the board never made a decision as to whether or not he was entitled to substitution. And well, the jurisdiction of the veteran's board is only over decisions that are made by the board and the veteran's board denied the petition for rid of the endamers because they said there was no clear and indisputable right to substitution. A decision that had not yet been made had not been made by the board. So it was not a issue that was before them. And so what we're asking, the real issue here is a procedural right whether or not he has a clear and unshakable right to when he filed when there's a appeal pending before the board. Well, it seems to me, I mean, I've listened to everything you said and doesn't that create the problem for you when we've got the review is the veteran's court denial of your rent. And what I think the scenario you've just laid out for us is telling us that you made a different argument that you're going to raise a different argument to us than you raised to the veteran's court. The veteran's court, you were seeking or at least they understood you to be seeking just the right of substitution. Whereas you're telling us, no, that's not what I'm seeking. I'm seeking the right to have the board hear it in the first instance without setting an act. I don't think that's entirely a record because the petition for rid of endamers that was filed with the board was to essentially to have the board reinstate the appeal and decide the motion there. The error that we alleged was the procedural error of them dismissing the appeal and referring it to the eight civil rights jurisdiction. I acknowledge that the petition for RIP did include and be substituted but the primary motivating factor and the primary reason for the RIP was is that the statute allows us to enter the appeal right at that point. But in your brief to this court you argue that the clear and indisputable right that you have was to substitution. It was to it was to it was to it was to it was to that we had a clear and indisputable right to have the veteran's court decide the motion to the court
. I'm sorry, yes, the board decide the motion in the context of the deceased veterans appeal without referring it out without discussing it. And we also argued that we were tired of the substitution but as I said going over this because it's a jurisdictional issue. So if we adopt your argument then we have no alternative to dismiss your case or stay. No, the LV have no interest. No, because the there what I'm trying to get at is I don't I'm afraid that the case is going to be determined based on the fact that there we don't have the right of substitution and then the procedural issue that arises under 51, 21 big A will not get decided. And that's an important consideration because the statute wouldn't act in 2008. They still have not the A still has not an active regulations that implement it. So they're in the process of that and there will be the potential for us to review that correct? That's correct. But at this particular point for at least two years they've been applying this mechanism where they dismiss the appeal and they send a pack to the agency of original jurisdiction. And I think it's very important to look at the legislative history behind why Congress and active this particular statute, the legislative history which this court went over in REES indicates that the intended to authorize substitution quote. So at the point the claim had proceeded rather than being forced to refile a quote to continue to deceased veterans claim from the point it had progressed to move forward from its current state of development. In other words this statute was enacted in order to allow the deceased veterans beneficiaries to step into the claim. What's the status now? I mean you had this was sent back to the regional office right beside it had? Yes, Mr. Collier. They have and that was that was of record before the veterans court when it rendered its decision that the secretary had provided that regional office decision
. The regional office denied the motion stuff to and currently this is not of record but currently that decision is on appeal to the board. Why isn't this kind of mood? Because the having the board decide the case under what I'll call a separate number is not the release that we have requested. We still are, Mr. Tree is still harmed because the relief that he is entitled to is to have the board decide his motion to substitute but in the context of the deceased veterans appeal because the whole the whole thing the whole reason for this statute and the whole goal of it was to reduce the prejudice of what the court was. The delay that was involved in the procedure and it was because they didn't want you have to reopen the whole factual record and redevelop the factual records. In this case he's got a separate appeal but it only relates to his motion to substitute. If in fact he's granted the right to substitute he'll get that record back. That's true. They're still going to be a delay as opposed to whether or not he was put, whether the motion was decided in the context of the appeal. But that's kind of, I mean but that's the reason we can do about that now. It's not, well that and that's, that's, yet there is a committee to do about that now. The remand order can direct the board to reinstate the deceased veterans appeal and to decide the motion to substitute within that appeal within that number. Right now it's got a separate number and it's got a separate number. So what practical difference does it make now to him whether it's decided under the same number or a separate number? I'm sorry I did. Time, time, delay because and and that is an injury that is the injury that this statute was intended to ameliorate
. Delay that he's already suffered or delay that he will suffer from this day forward. Has any or I mean you're talking about the delay that you think is already there is delay that he has already suffered. But I would be there will be continued delay because the for example the if the board determines that he is not entitled to substitute. We're going to have to go through a whole the pellet process to the veteran's court to this court to determine whether they are in for a vacation of 51-21 little a was correct or not. And then if we are correct then it goes back here. What I'm suggesting is that it goes to the the board if they have the substitution motion. So the fact letter procedure had put him back in the queue in his original number even with a denial. Then just post will be right there be a complete movement at this point right. Well I guess it would be moved and that brings me I see my time is out that for a trip country. Yeah I would like to give you an example that I think cried out for why the timing issue should be decided by the score. Let's take the example of a veteran who has an appeal pending before the board. His wife of 40 years moves to substitute. The under the fact letter procedure the board will dismiss the appeal send for motion to substitution back today to see the original jurisdiction. The grant the motion and then it will go back to the board and it will be in the original appeal of the deceased veterans. But she still had suffered that injury if she had for instance as we did in this case as soon as they referred it back to the state and civil rights jurisdiction
. We filed a motion another petition for Redmond Damon saying wait we don't need to do that extra step. The statute allows us give us the right to have the board decide this now in the context of this so that I don't have to wait that additional time. Then the question is moves and she won't be entitled to an exception to the movement doctrine because the capable of repetition by the evading review will only apply if she were going to suffer the same injury again. Well she's not going to be in another position to be you know to move the substitute for its case veterans claim so the movement issue is out. For injuries also not reversible the injury is still the additional time that it has taken for her appeal for the appeal to be processed which we say is a violation of 5121a. But it's not reversible because the decision by this court saying that they were wrong 5128 it did for the right to have it there they did not have the right to send it back to the original jurisdiction but there's nothing that we can do about that now. I think we have your argument we'll restore a couple minutes for reputtle and one here in the government. The veterans court correctly declined to grant the drastic remedy of my name is in this case because Mr. Shree can obtain substitution if his arguments are correct through the direct appeal the court should affirm because Mr. Shree does have that alternative remedy and even if the court is agreed and fines that you know the remedies anyway in the court should still affirm because Mr. Shree did not show a clear and indisputable right to mandamus really. Turning to the first issue that the direct appeal. Let me answer about the why why did this past procedure only allow those people who were successful in their substitution motion to get back in the queue and say but if we conclude in the first instance that you're not entitled to substitution then we're going to make you sit there for whatever time you want to do. I'm going to take before we get to you. Why not let them back in the queue where the appeal was so they can just say yes this appeal goes forward it does
. Well for the board's jurisdictional statute at 38 U.S.D. Section 71 of 4A provides that every decision by the secretary shall be subject to one review on a field of the section. The substitution statute makes clear that substitution itself is something that's subject to a decision by the secretary. It provides that claimants shall have the right to file a request to substitute which shall be determined in accordance with the agreed benefits statute. So the reason that a claimants get the right to that appeal and add those substitution decisions with board is to be faithful to that statutory requirement that the claimants have a feel right. So that's the purpose. I can't comment that. Why couldn't they have an appeal right that puts them back in the queue so that it gets decided more quickly so that they don't face the very delay that Congress was concerned about. Well because Congress who mean happening with this substitution statute although Congress was certainly concerned about inefficiency and redundant procedures. Congress was concerned about a different inefficiency not inefficiency associated with a substitution determination. In fact the substitution statute provides that claimants shall present evidence of the right to substitute. So Congress clearly contemplated some procedure for determining the substitution and that's the procedure. The whole point here was we've got too many layers, too many delays, too much procedure and that we've got spouses and companions that are out there who should be entitled to get this decision and get it quickly. That's really what they were talking about. So if the fact of substitution relates to that ability why don't they just say that these substitution motions will get fast-tracked. And the practical matter in order to make the case that the regional office or the agency of original jurisdiction can determine eligibility and substance use before a claim at the board or a board if you'll leave it up in the queue. So the board, the RO may make this determination and restore the DOC at number to that claimant before the board is even ready to hear that case. So with any cases this may be entirely an issue. But only if they are successful in their substitution rate. Although if they are not successful in their substitution request before the RO, the fact that there is that procedure in place that the claimant has will feel right to the board and then to the veteran's court and even to this court, if anything is faithful to that claimants of ballot rights and favors them rather than deffinements them. Although it's true that delayed us resolve from that title of the ballot process to play out. Here, the case from Mr. Shreys' perspective comes down to this issue of delay. There are several problems with that line of argument, the first of which is a Supreme Court is recognized as your honor noting that the rigidly in the English cannot be substituted. The ballot process is even a hardship may result from that type of delay. Mr. Shreys asserts that the delay here is different. His case is different because the substitution statute itself was meant to eliminate inefficiency
. That's really what they were talking about. So if the fact of substitution relates to that ability why don't they just say that these substitution motions will get fast-tracked. And the practical matter in order to make the case that the regional office or the agency of original jurisdiction can determine eligibility and substance use before a claim at the board or a board if you'll leave it up in the queue. So the board, the RO may make this determination and restore the DOC at number to that claimant before the board is even ready to hear that case. So with any cases this may be entirely an issue. But only if they are successful in their substitution rate. Although if they are not successful in their substitution request before the RO, the fact that there is that procedure in place that the claimant has will feel right to the board and then to the veteran's court and even to this court, if anything is faithful to that claimants of ballot rights and favors them rather than deffinements them. Although it's true that delayed us resolve from that title of the ballot process to play out. Here, the case from Mr. Shreys' perspective comes down to this issue of delay. There are several problems with that line of argument, the first of which is a Supreme Court is recognized as your honor noting that the rigidly in the English cannot be substituted. The ballot process is even a hardship may result from that type of delay. Mr. Shreys asserts that the delay here is different. His case is different because the substitution statute itself was meant to eliminate inefficiency. So his case should be different from that general rule. There are two problems with that type of argument. The first of which is this court in LAM rejected a very similar argument. There in LAM, the petitioner argued that Congress had passed the statute meant to eliminate delay in inefficiency into VA, which was actually titled the Veterans Benefits and Proof of Banking 94 instead of in this case the Veterans Benefits and Proof of Banking 98, which is a substitution statute. The petitioner in LAM, like Mr. Shreys here, argued that the board should decide a claim in the first instance on land in order to eliminate delay. But the court held it affirmed the denial of original end payments because the petitioner there was still obtained reviewed through the directive of the ballot process. That reasoning in LAM is controlling here and for close Mr. Shreys argument. But the second issue that I alluded to earlier is that... No matter how many times Congress tries to do away with delay, we keep letting the Veterans Administration create delay. Is that what you're saying? No, the delay that Congress was concerned about is addressed through the substitution statute and the VA procedure and the FAFSA procedure is faithful to that. In fact, if Congress provided in the substitution statute limited in substitution to those who were eligible for the Board to be benefit statute
. So his case should be different from that general rule. There are two problems with that type of argument. The first of which is this court in LAM rejected a very similar argument. There in LAM, the petitioner argued that Congress had passed the statute meant to eliminate delay in inefficiency into VA, which was actually titled the Veterans Benefits and Proof of Banking 94 instead of in this case the Veterans Benefits and Proof of Banking 98, which is a substitution statute. The petitioner in LAM, like Mr. Shreys here, argued that the board should decide a claim in the first instance on land in order to eliminate delay. But the court held it affirmed the denial of original end payments because the petitioner there was still obtained reviewed through the directive of the ballot process. That reasoning in LAM is controlling here and for close Mr. Shreys argument. But the second issue that I alluded to earlier is that... No matter how many times Congress tries to do away with delay, we keep letting the Veterans Administration create delay. Is that what you're saying? No, the delay that Congress was concerned about is addressed through the substitution statute and the VA procedure and the FAFSA procedure is faithful to that. In fact, if Congress provided in the substitution statute limited in substitution to those who were eligible for the Board to be benefit statute. So Congress did contemplate some evidence of eligibility to substitute, appears in part two of the statute. So it's clearly Congress recognized that the termination had to be made about eligibility. And Congress didn't want eligible substitutes to have to restart the entire claims process after substituting from the beginning. That's how the lands they've changed from before and after. There are other Mr. Shreys directly feeling this case is not the only reason why he laughed another remedy. Although he doesn't mention Mr. Shreys doesn't mention this in his brief. He also could have sought to appeal the Board's dismissal order. The Board dismisses appeal and referred the substitution request to the RO. Mr. Shreys characterizes that in his brief as kind of like a revamped order. It's true that the final word order doctrine generally precludes the palate review of non-finals orders. But there are exceptions as the court recognized in a download, versus in fact even Joyce, versus Michael Finn, as Steven's versus Prince of the United States. Many cases that hold that in different and itself is what religion, the violence, the law, the fact falls into the effect of the word order
. So Congress did contemplate some evidence of eligibility to substitute, appears in part two of the statute. So it's clearly Congress recognized that the termination had to be made about eligibility. And Congress didn't want eligible substitutes to have to restart the entire claims process after substituting from the beginning. That's how the lands they've changed from before and after. There are other Mr. Shreys directly feeling this case is not the only reason why he laughed another remedy. Although he doesn't mention Mr. Shreys doesn't mention this in his brief. He also could have sought to appeal the Board's dismissal order. The Board dismisses appeal and referred the substitution request to the RO. Mr. Shreys characterizes that in his brief as kind of like a revamped order. It's true that the final word order doctrine generally precludes the palate review of non-finals orders. But there are exceptions as the court recognized in a download, versus in fact even Joyce, versus Michael Finn, as Steven's versus Prince of the United States. Many cases that hold that in different and itself is what religion, the violence, the law, the fact falls into the effect of the word order. I'm guessing that if you've done that you would have come here and argued we had no jurisdiction. If the better, depending on how we've proceeded up through the chain within the confines of 30, this is Section 72, 92. Because of the unique better structure where there's an intermediate court, but if possible, if the issue on a field were strictly application of a lot of that. It could fall outside of this court jurisdiction on a direct appeal. But Mr. Shreys, the fact that Mr. Shreys didn't pursue that type of appeal merely underscores his failure to demonstrate a lack of an adequate alternative remedy. And, anyway, the word doesn't need to reach the issue about the advocacy of a direct appeal. Because Mr. Shreys, in any way, didn't show a clear and indisputable right to substitute. He argues that the board, rather than the RO, should be the one to make the determination about it, which is going to decide whether he is able to substitute. The fact that the RO, in this case, Reno office, has decided in page 71 of the joint findings. The Mr. Shreys, not eligible to substitute. He did not yet child
. I'm guessing that if you've done that you would have come here and argued we had no jurisdiction. If the better, depending on how we've proceeded up through the chain within the confines of 30, this is Section 72, 92. Because of the unique better structure where there's an intermediate court, but if possible, if the issue on a field were strictly application of a lot of that. It could fall outside of this court jurisdiction on a direct appeal. But Mr. Shreys, the fact that Mr. Shreys didn't pursue that type of appeal merely underscores his failure to demonstrate a lack of an adequate alternative remedy. And, anyway, the word doesn't need to reach the issue about the advocacy of a direct appeal. Because Mr. Shreys, in any way, didn't show a clear and indisputable right to substitute. He argues that the board, rather than the RO, should be the one to make the determination about it, which is going to decide whether he is able to substitute. The fact that the RO, in this case, Reno office, has decided in page 71 of the joint findings. The Mr. Shreys, not eligible to substitute. He did not yet child. Demonstrates his Mr. Shreys' failure to show the clear and indisputable right. Regardless of whether it's the regional office or the board who makes that determination, the fact is that some entity of the VA has already decided that Mr. Shreys is not eligible to substitute. Because he's not a child. That shows that the right here is not clear and indisputable at the very least. And even if there were doubt on that score and the court were looking at that issue, new, the court's precedence of the board has been a little difficult. And what the various decision in Burr is shows that someone, Mr. Shreys, did not a child eligible to substitute. The substitution statute itself, the contemplative, the indenprovides to the unautomatic right to substitute or an immediate substitution. It could contemplate evident permission or it could provide the eligible to be shown in the term of importance with the regime for preventative. That procedure also undermines any argument about a clear and indisputable right to substitute. There is one last issue mentioned in the meeting that Mr. Shreys were a library and alluded to as well in opening the brief concerning this word standard of review. Mr
. Demonstrates his Mr. Shreys' failure to show the clear and indisputable right. Regardless of whether it's the regional office or the board who makes that determination, the fact is that some entity of the VA has already decided that Mr. Shreys is not eligible to substitute. Because he's not a child. That shows that the right here is not clear and indisputable at the very least. And even if there were doubt on that score and the court were looking at that issue, new, the court's precedence of the board has been a little difficult. And what the various decision in Burr is shows that someone, Mr. Shreys, did not a child eligible to substitute. The substitution statute itself, the contemplative, the indenprovides to the unautomatic right to substitute or an immediate substitution. It could contemplate evident permission or it could provide the eligible to be shown in the term of importance with the regime for preventative. That procedure also undermines any argument about a clear and indisputable right to substitute. There is one last issue mentioned in the meeting that Mr. Shreys were a library and alluded to as well in opening the brief concerning this word standard of review. Mr. Shreys asserts that the court should approach this issue. Mr. Shreys, we rely on hard growth and land to show that the court applies an abusive discretion standard when reviewing a denial of petition for riddermandamus. He does, in his reply, read page of 6 and 7, say some cases from the D.P. Circuit that on the face of the brief appeared to suggest some kind of circuit split concerning the standard of review in pandamus appeals. There is an office of the circuit split. Those cases... That would mean our law is very clear. We do this under an abusive discretion standard and whatever the D.C. Circuit does, we couldn't change that. This panel couldn't change it without an on-box consideration
. Shreys asserts that the court should approach this issue. Mr. Shreys, we rely on hard growth and land to show that the court applies an abusive discretion standard when reviewing a denial of petition for riddermandamus. He does, in his reply, read page of 6 and 7, say some cases from the D.P. Circuit that on the face of the brief appeared to suggest some kind of circuit split concerning the standard of review in pandamus appeals. There is an office of the circuit split. Those cases... That would mean our law is very clear. We do this under an abusive discretion standard and whatever the D.C. Circuit does, we couldn't change that. This panel couldn't change it without an on-box consideration. That's absolutely right. This would not be a given for any type of on-box consideration on that issue because the cases that recognize the jurisdiction merges with an error. In those cases, a relevant of the mandamus acts rather than the law of that. In that case, it is entirely different type of cases because in the mandamus acts cases, there can be jurisdiction implications that are present here in an on-box case. Because Mr. Shreys has the remedy to the directed appeal, because he failed to show a clear and indisputable right, we respectfully ask the court to affirm the veterans for its judgment. Thank you. Mr. Bender, two minutes. Four or three slides. Yeah, one. I'll have to go very quickly. First, we respect standard of review. Even if you assume we, in the reply review, address that issue. There are three conditions that must be satisfied to warrant mandamus
. That's absolutely right. This would not be a given for any type of on-box consideration on that issue because the cases that recognize the jurisdiction merges with an error. In those cases, a relevant of the mandamus acts rather than the law of that. In that case, it is entirely different type of cases because in the mandamus acts cases, there can be jurisdiction implications that are present here in an on-box case. Because Mr. Shreys has the remedy to the directed appeal, because he failed to show a clear and indisputable right, we respectfully ask the court to affirm the veterans for its judgment. Thank you. Mr. Bender, two minutes. Four or three slides. Yeah, one. I'll have to go very quickly. First, we respect standard of review. Even if you assume we, in the reply review, address that issue. There are three conditions that must be satisfied to warrant mandamus. First, two, clear and indisputable right, alternative remedy, are prerequisite. So, we submit that those are questions of law. And in any event, an abusive discretion, a discretion that is emphasized based upon an error of law is, per se, an abusive discretion. If a court has the right to review the nobo, whether an error of law occurred in the exercise of discretion, the entire argument here is based upon the interpretation of 51-21A, and whether our interpretation is correct or their interpretation is correct. That is a question of law. So, even if it is an abusive discretion standard, you still have the right to review the nobo, the correct interpretation of that statute. With respect to, I believe, Judge O'Malley, you asked, why did they choose this procedure? And the briefing before this court, the veteran's court said that, well, the board can't decide this appeal. They can't decide the motion in the first instance, because they're not allowed to accept evidence that was not submitted to the regional office and make a decision on that. That is not true. That particular regulation, 20.1103, permits the board to consider evidence if the veteran waves or the applicant waves the right to have it submitted to the regional office and the first instance in writing. A motion substitute to the board at the Human Review Substitute is a sufficient writing for that particular purpose. And I would also say that 51-21A, contemplates that the board will actually make the decision. The only caveat to that, to the regulation, is that the issue has to be related to the issues before the board. Who the correct party is is related to the issues before the board
. First, two, clear and indisputable right, alternative remedy, are prerequisite. So, we submit that those are questions of law. And in any event, an abusive discretion, a discretion that is emphasized based upon an error of law is, per se, an abusive discretion. If a court has the right to review the nobo, whether an error of law occurred in the exercise of discretion, the entire argument here is based upon the interpretation of 51-21A, and whether our interpretation is correct or their interpretation is correct. That is a question of law. So, even if it is an abusive discretion standard, you still have the right to review the nobo, the correct interpretation of that statute. With respect to, I believe, Judge O'Malley, you asked, why did they choose this procedure? And the briefing before this court, the veteran's court said that, well, the board can't decide this appeal. They can't decide the motion in the first instance, because they're not allowed to accept evidence that was not submitted to the regional office and make a decision on that. That is not true. That particular regulation, 20.1103, permits the board to consider evidence if the veteran waves or the applicant waves the right to have it submitted to the regional office and the first instance in writing. A motion substitute to the board at the Human Review Substitute is a sufficient writing for that particular purpose. And I would also say that 51-21A, contemplates that the board will actually make the decision. The only caveat to that, to the regulation, is that the issue has to be related to the issues before the board. Who the correct party is is related to the issues before the board. And with respect to the final point, final point, final point, final point. My brother says that the procedure is faithful to the statute. It's not remotely faithful to the statute. It adds delay upon delay. And I would also point to the letter that the first, that the fact letter procedure is not entitled to reference, because it hasn't gone through the notice and comment procedure. And also, the action that the board took was to refer the motion. When they refer the motion, that means it doesn't get expedited treatments. That only adds to the delay. We have the argument, thank you, and a little comfort for the case. We submitted that conclusion to the Board.
The next case for arguments is 2012-7077-3 versus 10-8. Mr. Bender, I don't know if you feel happier sad that you've lost your audience. I guess this is not as important to as many people. It's important to a lot of people who are not here. And they're all important to us. What makes you crispy? May I please record my name as Thomas Bender, and I'm here on behalf of the appellant, Gary, I'm sorry. And this, as you know, is a feel from a denial of a petition for Red Amanda and Miss Pyle, the veteran's court. The central issue regards the interpretation of the new Substitution statute. I say new, it was enacted in 2008, a Substitution statute that permits certain beneficiaries, survivor beneficiaries of a deceased veteran to be substituted into the veteran's actual claim. Instead of it being an approved benefits claim, they come into the veterans claim and they can prosecute that claim to completion. And I'm a little confused about what you're arguing in this case. There seem to be two things, I guess, you want either of those. You think you have the right to be substituted. Your client has the right to be substituted. But it's also, I guess, aren't you really arguing that the board, you have the right to have the board rule on your motion without sending it out to the secretary? That's precisely it. And so it's just the second and not the first. You're not asking us to decide your right to be substituted. You're just complaining. I am not today. I will add not to acknowledge that in brief, we argue that he will be eligible for substitution. And therefore, the remain should include in order that the board decide within the context of the deceased veterans appeal. And when I say within the context of the deceased veterans appeal, I mean the appeal number that the veteran had, the deceased veteran had, at the board, because the way that it works right now under the facts letter, which has been in existence since 2010, provides dispositive guidance to the VA. They must dismiss the deceased veterans appeal and refer the substitution motion to the original jurisdiction for decision in the first instance. So then they get the number back. If they are substituted, then they refer back into that veterans, the deceased veterans claim is revived and they are into that claim. But we are assertion. But if you're not substituted, then you get review of that decision. We get review of that decision. It becomes a detract. But if you get review and you're not put back in line, where you are looking at it. No, in other words, if they, as in this case, the RO denied substitution, we haven't appeal to the board. If it's still denied, we haven't appeal to the veteran score. If it's still denied, we haven't appeal to this board. And if it's forward side that we were entitled to the substitution, then we will back the board to prosecute the merits of the veterans appeal. And at that point, you would get your old number back. That's right. And our position is that completely eviscerates the entire purpose or the substitution statute, which was to eliminate or at least, address the delay that occurs because under the former, the pre-2008 procedure, when the veteran died, his claim died with him. But his or her claim died with him. But an accrued benefits claimant could bring a separate accrued benefits claim. But it had to start with a different petition or claim as a regional office. And they basically had to rejuvenate the entire claim all along the block all along the block. Council, I can tell you that. I probably agree with the merits of your argument. Here's a problem I'm having. You're before us on a random and dangerous one, appeal at one. And in order for a red to issue, one of the things you must show is that the petitioner must lack an adequate alternative means to a pay relief. You just got through describing this alternative means to a pay relief. I would, in all terms, it means in no way an adequate means. The determination and that. It's a prem court case on very clear that even if there's some hardships that is caused by delay, that doesn't mean that the alternative means don't exist. Right. But I think that the alternative means has to be determined by what is the requested relief that they have a clear and unconverted right to. And in the secretary's brief, their focus on the relief that we seek is mere substitution. And of course, the procedure that I described isn't adequate alternative means to substitution. But the relief that we seek, it's not just substitution, the relief that we seek here is a remand order that tells the board you have to, the number one, reinstate the veterans appeal. And you decide the board sides the substitution question in the first instance in the context of that appeal because the purpose of the statute was to avoid the delay of having to go back to the beginning. I think it's very instructive. But here's a problem with that argument. You have to prove a clear and an indisputable right to that relief. But the statute itself allows the establishment of regulations to implement the statute. So it obviously didn't think that the methodologies were so clearly spelled out in the statute that we could say if a clear and indisputable right is based on the space of the statute along. Well, let's look at it and when we're talking about the timing here. And there is something that I want to say before we get too far. I mentioned before that in the briefing we had argued that we had a clear right substitution. In preparing for this general argument, I realized that there is a jurisdictional issue that makes the substitution question premature. And that's because briefly the way this case played out was that Mr. Tremes's father, after 27 years after his initial claim was denied, 27 years earlier, his claim was reopened. He was granted service connection for PTSD. And he was assigned an effective date that it was based on new and material evidence. So he was assigned an effective date that was the date that he filed his request for to reopen his claim. His appeal to the board was, I should be entitled to consideration for an earlier effective date because under the provisions of 3.1560, that was pending when he died. When he died, Mr. Tremes, the son filed a motion directly with the board, asking the board to grant the substitution that he could complete, enter into his father's appeal and complete it from that point forward. The board did not deny or grant his motion to substitute the board instead of ruling on the merits on that, dismiss the appeal and then refer the matter to the agency of original jurisdiction for decision in the first instance. So the board never made a decision as to whether or not he was entitled to substitution. And well, the jurisdiction of the veteran's board is only over decisions that are made by the board and the veteran's board denied the petition for rid of the endamers because they said there was no clear and indisputable right to substitution. A decision that had not yet been made had not been made by the board. So it was not a issue that was before them. And so what we're asking, the real issue here is a procedural right whether or not he has a clear and unshakable right to when he filed when there's a appeal pending before the board. Well, it seems to me, I mean, I've listened to everything you said and doesn't that create the problem for you when we've got the review is the veteran's court denial of your rent. And what I think the scenario you've just laid out for us is telling us that you made a different argument that you're going to raise a different argument to us than you raised to the veteran's court. The veteran's court, you were seeking or at least they understood you to be seeking just the right of substitution. Whereas you're telling us, no, that's not what I'm seeking. I'm seeking the right to have the board hear it in the first instance without setting an act. I don't think that's entirely a record because the petition for rid of endamers that was filed with the board was to essentially to have the board reinstate the appeal and decide the motion there. The error that we alleged was the procedural error of them dismissing the appeal and referring it to the eight civil rights jurisdiction. I acknowledge that the petition for RIP did include and be substituted but the primary motivating factor and the primary reason for the RIP was is that the statute allows us to enter the appeal right at that point. But in your brief to this court you argue that the clear and indisputable right that you have was to substitution. It was to it was to it was to it was to it was to that we had a clear and indisputable right to have the veteran's court decide the motion to the court. I'm sorry, yes, the board decide the motion in the context of the deceased veterans appeal without referring it out without discussing it. And we also argued that we were tired of the substitution but as I said going over this because it's a jurisdictional issue. So if we adopt your argument then we have no alternative to dismiss your case or stay. No, the LV have no interest. No, because the there what I'm trying to get at is I don't I'm afraid that the case is going to be determined based on the fact that there we don't have the right of substitution and then the procedural issue that arises under 51, 21 big A will not get decided. And that's an important consideration because the statute wouldn't act in 2008. They still have not the A still has not an active regulations that implement it. So they're in the process of that and there will be the potential for us to review that correct? That's correct. But at this particular point for at least two years they've been applying this mechanism where they dismiss the appeal and they send a pack to the agency of original jurisdiction. And I think it's very important to look at the legislative history behind why Congress and active this particular statute, the legislative history which this court went over in REES indicates that the intended to authorize substitution quote. So at the point the claim had proceeded rather than being forced to refile a quote to continue to deceased veterans claim from the point it had progressed to move forward from its current state of development. In other words this statute was enacted in order to allow the deceased veterans beneficiaries to step into the claim. What's the status now? I mean you had this was sent back to the regional office right beside it had? Yes, Mr. Collier. They have and that was that was of record before the veterans court when it rendered its decision that the secretary had provided that regional office decision. The regional office denied the motion stuff to and currently this is not of record but currently that decision is on appeal to the board. Why isn't this kind of mood? Because the having the board decide the case under what I'll call a separate number is not the release that we have requested. We still are, Mr. Tree is still harmed because the relief that he is entitled to is to have the board decide his motion to substitute but in the context of the deceased veterans appeal because the whole the whole thing the whole reason for this statute and the whole goal of it was to reduce the prejudice of what the court was. The delay that was involved in the procedure and it was because they didn't want you have to reopen the whole factual record and redevelop the factual records. In this case he's got a separate appeal but it only relates to his motion to substitute. If in fact he's granted the right to substitute he'll get that record back. That's true. They're still going to be a delay as opposed to whether or not he was put, whether the motion was decided in the context of the appeal. But that's kind of, I mean but that's the reason we can do about that now. It's not, well that and that's, that's, yet there is a committee to do about that now. The remand order can direct the board to reinstate the deceased veterans appeal and to decide the motion to substitute within that appeal within that number. Right now it's got a separate number and it's got a separate number. So what practical difference does it make now to him whether it's decided under the same number or a separate number? I'm sorry I did. Time, time, delay because and and that is an injury that is the injury that this statute was intended to ameliorate. Delay that he's already suffered or delay that he will suffer from this day forward. Has any or I mean you're talking about the delay that you think is already there is delay that he has already suffered. But I would be there will be continued delay because the for example the if the board determines that he is not entitled to substitute. We're going to have to go through a whole the pellet process to the veteran's court to this court to determine whether they are in for a vacation of 51-21 little a was correct or not. And then if we are correct then it goes back here. What I'm suggesting is that it goes to the the board if they have the substitution motion. So the fact letter procedure had put him back in the queue in his original number even with a denial. Then just post will be right there be a complete movement at this point right. Well I guess it would be moved and that brings me I see my time is out that for a trip country. Yeah I would like to give you an example that I think cried out for why the timing issue should be decided by the score. Let's take the example of a veteran who has an appeal pending before the board. His wife of 40 years moves to substitute. The under the fact letter procedure the board will dismiss the appeal send for motion to substitution back today to see the original jurisdiction. The grant the motion and then it will go back to the board and it will be in the original appeal of the deceased veterans. But she still had suffered that injury if she had for instance as we did in this case as soon as they referred it back to the state and civil rights jurisdiction. We filed a motion another petition for Redmond Damon saying wait we don't need to do that extra step. The statute allows us give us the right to have the board decide this now in the context of this so that I don't have to wait that additional time. Then the question is moves and she won't be entitled to an exception to the movement doctrine because the capable of repetition by the evading review will only apply if she were going to suffer the same injury again. Well she's not going to be in another position to be you know to move the substitute for its case veterans claim so the movement issue is out. For injuries also not reversible the injury is still the additional time that it has taken for her appeal for the appeal to be processed which we say is a violation of 5121a. But it's not reversible because the decision by this court saying that they were wrong 5128 it did for the right to have it there they did not have the right to send it back to the original jurisdiction but there's nothing that we can do about that now. I think we have your argument we'll restore a couple minutes for reputtle and one here in the government. The veterans court correctly declined to grant the drastic remedy of my name is in this case because Mr. Shree can obtain substitution if his arguments are correct through the direct appeal the court should affirm because Mr. Shree does have that alternative remedy and even if the court is agreed and fines that you know the remedies anyway in the court should still affirm because Mr. Shree did not show a clear and indisputable right to mandamus really. Turning to the first issue that the direct appeal. Let me answer about the why why did this past procedure only allow those people who were successful in their substitution motion to get back in the queue and say but if we conclude in the first instance that you're not entitled to substitution then we're going to make you sit there for whatever time you want to do. I'm going to take before we get to you. Why not let them back in the queue where the appeal was so they can just say yes this appeal goes forward it does. Well for the board's jurisdictional statute at 38 U.S.D. Section 71 of 4A provides that every decision by the secretary shall be subject to one review on a field of the section. The substitution statute makes clear that substitution itself is something that's subject to a decision by the secretary. It provides that claimants shall have the right to file a request to substitute which shall be determined in accordance with the agreed benefits statute. So the reason that a claimants get the right to that appeal and add those substitution decisions with board is to be faithful to that statutory requirement that the claimants have a feel right. So that's the purpose. I can't comment that. Why couldn't they have an appeal right that puts them back in the queue so that it gets decided more quickly so that they don't face the very delay that Congress was concerned about. Well because Congress who mean happening with this substitution statute although Congress was certainly concerned about inefficiency and redundant procedures. Congress was concerned about a different inefficiency not inefficiency associated with a substitution determination. In fact the substitution statute provides that claimants shall present evidence of the right to substitute. So Congress clearly contemplated some procedure for determining the substitution and that's the procedure. The whole point here was we've got too many layers, too many delays, too much procedure and that we've got spouses and companions that are out there who should be entitled to get this decision and get it quickly. That's really what they were talking about. So if the fact of substitution relates to that ability why don't they just say that these substitution motions will get fast-tracked. And the practical matter in order to make the case that the regional office or the agency of original jurisdiction can determine eligibility and substance use before a claim at the board or a board if you'll leave it up in the queue. So the board, the RO may make this determination and restore the DOC at number to that claimant before the board is even ready to hear that case. So with any cases this may be entirely an issue. But only if they are successful in their substitution rate. Although if they are not successful in their substitution request before the RO, the fact that there is that procedure in place that the claimant has will feel right to the board and then to the veteran's court and even to this court, if anything is faithful to that claimants of ballot rights and favors them rather than deffinements them. Although it's true that delayed us resolve from that title of the ballot process to play out. Here, the case from Mr. Shreys' perspective comes down to this issue of delay. There are several problems with that line of argument, the first of which is a Supreme Court is recognized as your honor noting that the rigidly in the English cannot be substituted. The ballot process is even a hardship may result from that type of delay. Mr. Shreys asserts that the delay here is different. His case is different because the substitution statute itself was meant to eliminate inefficiency. So his case should be different from that general rule. There are two problems with that type of argument. The first of which is this court in LAM rejected a very similar argument. There in LAM, the petitioner argued that Congress had passed the statute meant to eliminate delay in inefficiency into VA, which was actually titled the Veterans Benefits and Proof of Banking 94 instead of in this case the Veterans Benefits and Proof of Banking 98, which is a substitution statute. The petitioner in LAM, like Mr. Shreys here, argued that the board should decide a claim in the first instance on land in order to eliminate delay. But the court held it affirmed the denial of original end payments because the petitioner there was still obtained reviewed through the directive of the ballot process. That reasoning in LAM is controlling here and for close Mr. Shreys argument. But the second issue that I alluded to earlier is that... No matter how many times Congress tries to do away with delay, we keep letting the Veterans Administration create delay. Is that what you're saying? No, the delay that Congress was concerned about is addressed through the substitution statute and the VA procedure and the FAFSA procedure is faithful to that. In fact, if Congress provided in the substitution statute limited in substitution to those who were eligible for the Board to be benefit statute. So Congress did contemplate some evidence of eligibility to substitute, appears in part two of the statute. So it's clearly Congress recognized that the termination had to be made about eligibility. And Congress didn't want eligible substitutes to have to restart the entire claims process after substituting from the beginning. That's how the lands they've changed from before and after. There are other Mr. Shreys directly feeling this case is not the only reason why he laughed another remedy. Although he doesn't mention Mr. Shreys doesn't mention this in his brief. He also could have sought to appeal the Board's dismissal order. The Board dismisses appeal and referred the substitution request to the RO. Mr. Shreys characterizes that in his brief as kind of like a revamped order. It's true that the final word order doctrine generally precludes the palate review of non-finals orders. But there are exceptions as the court recognized in a download, versus in fact even Joyce, versus Michael Finn, as Steven's versus Prince of the United States. Many cases that hold that in different and itself is what religion, the violence, the law, the fact falls into the effect of the word order. I'm guessing that if you've done that you would have come here and argued we had no jurisdiction. If the better, depending on how we've proceeded up through the chain within the confines of 30, this is Section 72, 92. Because of the unique better structure where there's an intermediate court, but if possible, if the issue on a field were strictly application of a lot of that. It could fall outside of this court jurisdiction on a direct appeal. But Mr. Shreys, the fact that Mr. Shreys didn't pursue that type of appeal merely underscores his failure to demonstrate a lack of an adequate alternative remedy. And, anyway, the word doesn't need to reach the issue about the advocacy of a direct appeal. Because Mr. Shreys, in any way, didn't show a clear and indisputable right to substitute. He argues that the board, rather than the RO, should be the one to make the determination about it, which is going to decide whether he is able to substitute. The fact that the RO, in this case, Reno office, has decided in page 71 of the joint findings. The Mr. Shreys, not eligible to substitute. He did not yet child. Demonstrates his Mr. Shreys' failure to show the clear and indisputable right. Regardless of whether it's the regional office or the board who makes that determination, the fact is that some entity of the VA has already decided that Mr. Shreys is not eligible to substitute. Because he's not a child. That shows that the right here is not clear and indisputable at the very least. And even if there were doubt on that score and the court were looking at that issue, new, the court's precedence of the board has been a little difficult. And what the various decision in Burr is shows that someone, Mr. Shreys, did not a child eligible to substitute. The substitution statute itself, the contemplative, the indenprovides to the unautomatic right to substitute or an immediate substitution. It could contemplate evident permission or it could provide the eligible to be shown in the term of importance with the regime for preventative. That procedure also undermines any argument about a clear and indisputable right to substitute. There is one last issue mentioned in the meeting that Mr. Shreys were a library and alluded to as well in opening the brief concerning this word standard of review. Mr. Shreys asserts that the court should approach this issue. Mr. Shreys, we rely on hard growth and land to show that the court applies an abusive discretion standard when reviewing a denial of petition for riddermandamus. He does, in his reply, read page of 6 and 7, say some cases from the D.P. Circuit that on the face of the brief appeared to suggest some kind of circuit split concerning the standard of review in pandamus appeals. There is an office of the circuit split. Those cases... That would mean our law is very clear. We do this under an abusive discretion standard and whatever the D.C. Circuit does, we couldn't change that. This panel couldn't change it without an on-box consideration. That's absolutely right. This would not be a given for any type of on-box consideration on that issue because the cases that recognize the jurisdiction merges with an error. In those cases, a relevant of the mandamus acts rather than the law of that. In that case, it is entirely different type of cases because in the mandamus acts cases, there can be jurisdiction implications that are present here in an on-box case. Because Mr. Shreys has the remedy to the directed appeal, because he failed to show a clear and indisputable right, we respectfully ask the court to affirm the veterans for its judgment. Thank you. Mr. Bender, two minutes. Four or three slides. Yeah, one. I'll have to go very quickly. First, we respect standard of review. Even if you assume we, in the reply review, address that issue. There are three conditions that must be satisfied to warrant mandamus. First, two, clear and indisputable right, alternative remedy, are prerequisite. So, we submit that those are questions of law. And in any event, an abusive discretion, a discretion that is emphasized based upon an error of law is, per se, an abusive discretion. If a court has the right to review the nobo, whether an error of law occurred in the exercise of discretion, the entire argument here is based upon the interpretation of 51-21A, and whether our interpretation is correct or their interpretation is correct. That is a question of law. So, even if it is an abusive discretion standard, you still have the right to review the nobo, the correct interpretation of that statute. With respect to, I believe, Judge O'Malley, you asked, why did they choose this procedure? And the briefing before this court, the veteran's court said that, well, the board can't decide this appeal. They can't decide the motion in the first instance, because they're not allowed to accept evidence that was not submitted to the regional office and make a decision on that. That is not true. That particular regulation, 20.1103, permits the board to consider evidence if the veteran waves or the applicant waves the right to have it submitted to the regional office and the first instance in writing. A motion substitute to the board at the Human Review Substitute is a sufficient writing for that particular purpose. And I would also say that 51-21A, contemplates that the board will actually make the decision. The only caveat to that, to the regulation, is that the issue has to be related to the issues before the board. Who the correct party is is related to the issues before the board. And with respect to the final point, final point, final point, final point. My brother says that the procedure is faithful to the statute. It's not remotely faithful to the statute. It adds delay upon delay. And I would also point to the letter that the first, that the fact letter procedure is not entitled to reference, because it hasn't gone through the notice and comment procedure. And also, the action that the board took was to refer the motion. When they refer the motion, that means it doesn't get expedited treatments. That only adds to the delay. We have the argument, thank you, and a little comfort for the case. We submitted that conclusion to the Board