Legal Case Summary

I'm going to do a little bit of the same thing. This is number 06, 7166. Vincent against the Secretary of Veterans Affairs is to chat. We'll make this a court tomorrow. A rule is said to be a retroactive if it upsets settled expectations on which a party rely in a completed transaction of completed conduct in the past. A numerous correlations, but that seems to be common ground. What we have here in Rodriguez, which is of course the sort of root case that's ending this month, this is the own case, are determinations relating to government benefits under a statute that this court has held is ambiguous. So it doesn't appear that at any time regardless of what the case law may have been at any given time, a plan of what it had is settled expectation, what it had a basis to rely upon an expectation that under this end, that you would statute these words entitled to receive, or judge a key one here, would be a turquoise in any given time. That arguably, although it's not a critical to our argument, arguably the facts in both Rodriguez and Vincent point even further away from retroactivity in that, Ms. Rodriguez and Ms. Vincent both filed their claims for dependency and anonymity compensation at a time at which the prevailing interpretation, as far as the public was concerned, was the interpretation of the VA that had been announced in the VA's general counsel. Would it have made a difference in New York they didn't file until after the veterans court had decided those cases? Well, I don't think so, and that's why I prefer to say I don't think it is critical, because even then you would have had as this court sort of discussed in the November 1 decision, an intermediate court ruling, which went one way, was in conflict with the agencies interpretation, the agency still had a vehicle or means, if you will, to reestablish its interpretation of the statute, which is what it did in the rulemaking in 2000

. So there certainly couldn't have been any settled expectation, or if you will, the best thing is right is what we did. But didn't our expectation change while the matter was pending before the department as a result of those decisions of the veterans court? Well, if she locked in and effected her certain expectation, what it was when she filed her claim? Well, her subjective expectation, you know, yeah, would have changed or any parties of subjective expectation, you know, that would have changed as time went on. The point, I think, to be made is that no expectation would have been settled at any point in this court, or if you will, bested at any point in this process, up to and including the time at which the actual benefits decision is made, in fact, the law of benefits law comes, is subject to change. And with a series of cases that we've cited, the, for instance, the Holmes case, the Hormaw case from the sixth circuit, some of the cases cited in that decision. So, you stand for the idea that by filing an application or a claim, an applicant doesn't sort of freeze an amber that the expectations whenever they wore, that it would have existed at that time. That actually, as I emphasize, is not really even so germane specifically that this Rodriguez was mentioned, because at the time they filed their claims, it wasn't even a space lock, but you didn't have the case law of existence at that time. And another claimant would have had no settled expectation on right. So, are you saying that basically whatever expectation was at various stages in the proceeding, it's not the kind of an interest that is, that cannot be retroactively altered? That basically what you say, it isn't as though I, when I commit a crime, I knew the maximum sentence was 10 years and afterwards they raised apparently the 15 years, which you can't do. But here it was sort of a shifting thing. First she, she hoped, first she filed and she knew she couldn't get it. Then there was some innovating decisions she thought maybe she could get it

. But then there was another decision by the secretary, which says no, you can't get it. And that that's not enough to say that this is impermissible retroactivity. I think, yes, certainly I agree with all that. I think to go a little bit further, I think our position is truly not retroactively at all, because it's an existing rule that is applied certainly in this instance in this Rodriguez case. As the law was when the claim was filed, as it happens, is what the law was when the claim was decided. But even so, we have to look at it objectively, not as to any claimant's particular subjective expectations. And there couldn't have been an objective expectation of stability at any point in the process. Now that, that task, of course, is, it has been sort of formulated into the specifics sort of through prongs that are discussed in line graphic and prescriptions in particular. And those prongs, if you will, follow what we've said about retroactivity, and then it upsets settled expectations on which a party relied and completely come back to the past. So we look at what we're expecting, upsetting stuff in settled expectations, is the nature and the degree of the change that's created by the rule. And then the connection to past events has to do with the reliance in past conduct

. And the reasonable notice kind of fair warning issues also related to the reliance in past conduct. Now those cases in which retroactivity has been found, or if you're a retroactivity has been found, are cases in which a claimant, such as, well, party, such as Curtis Cruz, for instance, took actions that are in a sense irrevocable or irreversible in the past, in reliance on a specific legal regime that now has been changed. And there's clear appearance of unfairness, or it's a screws and a coarse, didn't collect certain information from its past and your share about it. And so it couldn't comply with this new rule. And so there was an incentive sort of a switch, and there was no opportunity for that. And your point is I'll take it. There's nothing she could have done that could have possibly changed her position. She would stuck with whatever they were going to do, unlike the situation where someone might say, well, if I had known that, now I would have filed earlier. Right. And given the context here, dependency, C in an entity conversation, which is, of course, a sort of grave matter, we don't want to be disrespectful to the claimant at all or certainly to the family. And there certainly is an integration to believe that any of these factors, whether the deceased veteran had been rated with 100% disability for 10 years, receiving his or her death, whether that could have been changed, it would have been changed in some way in reliance on something like a regime, the timing or the filing of the claimant itself

. There's no reason to expect that the legal regime necessarily impacted that. But your position is that there's no basis for considering at what I'll call the equities, unless it's totally black and white, that is, unless there was an explicit change of position rather than the position which existed. Well, the land graph in the Princess Pruis' test has been expressed as a sort of balancing test. But it's also... Well, that was my question. I gather that you are saying, no, you can't balance in this case because certainly if you do, there are equities on her side. Well, the court didn't endorse this, but we certainly agree with the position that sort of suggested in Princess Pruis' test that other circuits have been adopted, that this..

. The reason we're alive with fair warning of notice issues under the third pronged R in effect, what the court called tie-breakers in cases that appear to be quite close. Here, we'd suggest that where the other factors, the nature of the alleged change in the law, where the law itself was ambiguous in some of the flux, and the lack of any relationship to any complete transaction or any reliance by a claimant passed, should be decisive. And the equities, obviously, are unfortunate when anyone was... That was my question. Your position is the equities are not to be considered. That's right. I'm afraid that's the case, given what the statute, the requirements of the statute says for, and it gives us an in-bind for providing compensation. And the fact that the agencies' interpretation, which would preclude the theory that Miss Vincent and Miss Rommiger just wanted to pursue here, has been sustained, that appears to be the end of absent other factors. I would suggest it's a retroactive rate

. Since I have some time, I would just like to underscore, there really isn't any basis to conclude or very really alleged that Miss Vincent, in particular, wasn't as led by the VA in any way. She was... doesn't argue. She was misled. I do that she complied with the laws. It was at the time. Yes, she does argue that, but there is suggestion in the red brief that VA made some statements while her time was pending suggesting that, she may be able to take advantage of the high-preposition of the theory that somehow contributes to some reliance of her part. We don't think, of course, the statements made during the administrative process, but on the types of communications or create the kind of reliance that's relevant here in a retroactive way, but we do want to be clear since I do have time to respond that Miss Vincent's case was among those that were stayed during the review of the rulemaking in 2000, specifically because the outcome of the claim was understood to be controlled by whether the high-preposition of the law was being controlled by the law. That's why the claim was stayed and that's what VA argued

. In our opinion, that's what VA stated to her during the communications, because that was why the claim was stayed. It wouldn't have been stayed if there were not any possibility that the revised rule would apply to the claim. It wouldn't have been stayed, it wouldn't have been forwarded inside. There's really no misleading statements at all about VA. Unless there are questions, I'm not reserved in the name. Thank you. Thank you, Mr. Chair. May I please, the Secretary has made several statements that are incorrect in this case. One statement, of course, is that there's no unfair surprise here, no setting of self-expectations. We have a kind of a problem

. She doesn't even apply for a hypothetical claim until eight months after the rule changes, right? But nevertheless, the first adjudication of her claim occurred in June of 97 after the green case came out, which interpreted the law to mean that there was an avenue of entitlement. But how would anybody have perceived that she was even seeking that avenue when she didn't file for it until after it was no longer available? Well, I would say that her expectation at the time of filing is not necessarily in this case, given all that we're going to talk about that happened afterward, is decisive in this case, because she was led to believe, via specific VA adjudications during the claims process, that she was entitled under this hypothetical method. So our position is that there wasn't upsetting of self-expectations here specifically. She was told in May of 02 in a VA adjudication that because she had filed prior to the date of the change, that she would still be considered under the hypothetical entitlement. And indeed, they did adjudicate the claim then. That was a denial of benefits under hypothetical entitlement. And she appealed to the board, fully expecting that her claim was going to be whether she was entitled under the hypothetical avenue. There without any notice at all, the board completely changed the position of the VA and said that she never had an avenue. She doesn't have an avenue of entitlement under the hypothetical theory. But the board is the thing that she was told was that the regional office? Yes, that's in the record. Well, I don't bother with that

. She was told that the regional office, but the board is a superior of the regional office, isn't it? In other words, the regional office told her that, well, we start with the fact that when she originally applied, she had no reason to believe she would prevail on this. She's not right. Which she filed her first claim. And then subsequently, as the thing went along when it came before the regional office, and they said, you're okay. And then the one up to the board and the board said, no, you're not okay. And the board, it seems to me, is the one that has a controlling voice on this rather than the regional office. Well, I'm trying to prove the element of unfair surprise and upsetting subtle expectations here by referring to a VA decision in the appendix at page 216 that says, however, since you filed your claim prior to the 1-00-date, in Title II hypothetical rating for the IC, will continue to be considered. So that, of course, led her to believe, and several VA documents prior to that time had led her to believe that she did have the hypothetical avenue open to her. But I also want to, and in this case, actually, it's kind of similar to Princess Cruz's case where the Cruz-Lon had received a letter called the Frick Letter, saying that they wouldn't have to pay this tax. And although the court in that case said that wasn't a decisive document, it was just a letter from the Customs official, still they considered it very important in terms of the upsetting, upstead expectations that the Cruz-Lon naturally received this letter, saying, no, you won't have to pay this tax, and later they applied the law to her. Now, in this case, our case is even more persuasive on that element because this was a VA decision document on page 216 that told her that she could use the hypothetical avenue to get entitlement to DIC

. I see. So it's even more persuasive. I mean, there's nothing she could have done as a visitor who would have changed the resolvers there. This isn't a case where someone delayed filing and said, had I known, I would have filed, although she failed to state a claim at the time, but she didn't think she had. There's nothing she could have done once she'd filed her claim that would be affected by the ruling on this point. I'm not sure I knew that, I'm not sure I'd follow it all away. Oh, well, let me try making it see if I can make it a little clearer to you. In many situations, one of the factors that's taken into account in determining retroactivity is whether if the person involved had known what was going to be done, they would have altered their course of conduct. Whereas here, once she filed her claim, there's nothing she could have done in the way of ordering her conduct, had she known what the other end result was going to be. Well, in fact, she did alter her conduct and we would also dispute the Secretary's statement that there's no relevant past event here that's connected to the change in law. In fact, the... How did she alter her conduct? What did she do? What did she do that she would not have done or what had she not done that she would have done, had she known at the time she did it, but later on, they were going to change the rule. Well, if you're looking for a particular conduct, why this is Vincent, there's evidence throughout the record that she went ahead and tried to develop evidence pertinent to the... Hypothetical and Title IX Avenue. In the John Appendix at page 107, you have a letter that she submitted that goes to the hypothetical and Title IX Avenue, saying essentially that the veteran had filed for total disability rating in 77 many years before he died. He was denied at that time and then he did not approach the VA again at Title IX Avenue. Well, could she have done that might have avoided what happened and there's nothing she could have done that would have prevented her from being ultimately told that you're not going to get these benefits. Well, in my question, going to the relevant past, in my criminal hypothetical theoretically, the defendant would say, well, I would have been willing to run the risk of 10 years in prison, but I wouldn't have held up the bank had I known that I would be sent to jail for 15 years

... How did she alter her conduct? What did she do? What did she do that she would not have done or what had she not done that she would have done, had she known at the time she did it, but later on, they were going to change the rule. Well, if you're looking for a particular conduct, why this is Vincent, there's evidence throughout the record that she went ahead and tried to develop evidence pertinent to the... Hypothetical and Title IX Avenue. In the John Appendix at page 107, you have a letter that she submitted that goes to the hypothetical and Title IX Avenue, saying essentially that the veteran had filed for total disability rating in 77 many years before he died. He was denied at that time and then he did not approach the VA again at Title IX Avenue. Well, could she have done that might have avoided what happened and there's nothing she could have done that would have prevented her from being ultimately told that you're not going to get these benefits. Well, in my question, going to the relevant past, in my criminal hypothetical theoretically, the defendant would say, well, I would have been willing to run the risk of 10 years in prison, but I wouldn't have held up the bank had I known that I would be sent to jail for 15 years. There's nothing in that sense that she could have done. I gather when you said what she did, all she did was try to present evidence supporting her theory of the case. Yes, and that goes to both the requirement of a past event and also an element of reliance. She acted in reliance on her belief that the VA allowed her to prove entitlement under the hypothetical. But I don't see you arguing that because this is a veteran and veteran's benefits that the ordinary routine rules of retroactivity should be changed or should not apply. We have not made that specific allegation because we believe that this factual scenario here fits the Princess Cruises factors. She has proved everything. A change in the law, green was the law interpreting that she had this avenue of entitlement. The group of people who were entitled to DIC was, let's say, this large and then the changing regulation came about and constricted that circle of people who were entitled to DIC. This was a substantial change in law. It actually changed the requirements for entitlement to DIC

. There's nothing in that sense that she could have done. I gather when you said what she did, all she did was try to present evidence supporting her theory of the case. Yes, and that goes to both the requirement of a past event and also an element of reliance. She acted in reliance on her belief that the VA allowed her to prove entitlement under the hypothetical. But I don't see you arguing that because this is a veteran and veteran's benefits that the ordinary routine rules of retroactivity should be changed or should not apply. We have not made that specific allegation because we believe that this factual scenario here fits the Princess Cruises factors. She has proved everything. A change in the law, green was the law interpreting that she had this avenue of entitlement. The group of people who were entitled to DIC was, let's say, this large and then the changing regulation came about and constricted that circle of people who were entitled to DIC. This was a substantial change in law. It actually changed the requirements for entitlement to DIC. That's one element, the nature and extent of the changing law. The second element relevant past conduct is that the VA adjudicated her decision in June of 97 and it also went before the board while the green case and subsequent cases were in effect. Those cases entitled her to adjudication under the hypothetical avenue. She has relevant past conduct. She relied, she tried to develop evidence that would be relevant to entitlement in the hypothetical avenue. She was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she changed the rule. The only thing she had done differently, I take it, is not submit some of the material she submitted. Was that right? Kelly Walsall She acted in reliance on her belief that she had no idea of what she was doing. Kelly Walsall I'm asking you suppose she didn't have had no had that belief what would she have done differently and the only thing that she would have done differently, I take it, is she wouldn't have submitted this evidence because it wouldn't be relevant. Well, again, several cases appear to us to support the view that if there was an adjudication while the prior rule was in effect, an actual decision by the agency while the more liberal rule was in effect, that that would be a relevant past conduct. In the good year case, decided by this court in 1997, good year didn't have a vested right to receive consideration for the refund because they were simply an applicant whose claim had not been approved

. That's one element, the nature and extent of the changing law. The second element relevant past conduct is that the VA adjudicated her decision in June of 97 and it also went before the board while the green case and subsequent cases were in effect. Those cases entitled her to adjudication under the hypothetical avenue. She has relevant past conduct. She relied, she tried to develop evidence that would be relevant to entitlement in the hypothetical avenue. She was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she changed the rule. The only thing she had done differently, I take it, is not submit some of the material she submitted. Was that right? Kelly Walsall She acted in reliance on her belief that she had no idea of what she was doing. Kelly Walsall I'm asking you suppose she didn't have had no had that belief what would she have done differently and the only thing that she would have done differently, I take it, is she wouldn't have submitted this evidence because it wouldn't be relevant. Well, again, several cases appear to us to support the view that if there was an adjudication while the prior rule was in effect, an actual decision by the agency while the more liberal rule was in effect, that that would be a relevant past conduct. In the good year case, decided by this court in 1997, good year didn't have a vested right to receive consideration for the refund because they were simply an applicant whose claim had not been approved. And in this case, Mrs. Vincent's case went through the adjudication process before the new rule came into effect in OO, twice it went through in June of 97, and again at the board before the rule changed. So in this case, she is not just an applicant who has filed a claim. She is someone who had an entitlement in June of 97 to be considered under the hypothetical avenue, and again, whenever her case was before the board, before the rule changed. So if we can differentiate her from cases that are looking for saying, oh, you're just an applicant in the rule change while your claim was in the process here, she's an applicant whose case was adjudicated, specific decisions while the more liberal rule, if I may call it that, was in effect. So she is not just an applicant out there, she does have actions to hang her hat on to meet the relevant past conduct. She tried to develop evidence. Well, I might just suggest that it was adjudicated, but not finally adjudicated. Well, you're right, it was adjudicated, but not finally adjudicated, but she was also told. And the question is whether they could change the rule during the course of the final adjudication. Well, that would certainly upset her so expectations, given the VA decision and actual decision in her case in 02, that because she had filed prior to the rule, she had a right to be considered under the hypothetical avenue of entitlement

. And in this case, Mrs. Vincent's case went through the adjudication process before the new rule came into effect in OO, twice it went through in June of 97, and again at the board before the rule changed. So in this case, she is not just an applicant who has filed a claim. She is someone who had an entitlement in June of 97 to be considered under the hypothetical avenue, and again, whenever her case was before the board, before the rule changed. So if we can differentiate her from cases that are looking for saying, oh, you're just an applicant in the rule change while your claim was in the process here, she's an applicant whose case was adjudicated, specific decisions while the more liberal rule, if I may call it that, was in effect. So she is not just an applicant out there, she does have actions to hang her hat on to meet the relevant past conduct. She tried to develop evidence. Well, I might just suggest that it was adjudicated, but not finally adjudicated. Well, you're right, it was adjudicated, but not finally adjudicated, but she was also told. And the question is whether they could change the rule during the course of the final adjudication. Well, that would certainly upset her so expectations, given the VA decision and actual decision in her case in 02, that because she had filed prior to the rule, she had a right to be considered under the hypothetical avenue of entitlement. They specifically told her that and the fact that they, themselves went back and forth in several ways in their interpretation of the law, while her case was under consideration, does not change the fact that the green case was binding law while her claim was being decided and she had a right to have a decline. Not only that, she was told that they could apply it. And also, she acted in reliance trying to develop some evidence that would support her entitlement here, although we know that in these situations, new evidence, it's still under dispute. You have the November case before you right now, again, for the third time, it's still under dispute. Whether you can add new evidence, the fact remains that she did act in reliance on her belief that she had this avenue open to her. And again, the third problem, it was a, the nature and extent of the change in law, this was a vast change in law. It narrowed the number of claimants who would be entitled to DIC, the change in law did that. Under the green case, as I said, there were a larger number of claimants who were entitled, she would be shut out under the rule change. And so, basically, this changed the substantive criteria for entitlement to DIC, a vast change. So, she clearly meets all three of the requirements for retroactivity here. And again, there are many cases, since this seems to be a point of dispute here, there are many cases that do say that if you're just an applicant out there and you don't get a decision on your case, why are the more liberal role it's in effect, then there's no retroactive effect

. They specifically told her that and the fact that they, themselves went back and forth in several ways in their interpretation of the law, while her case was under consideration, does not change the fact that the green case was binding law while her claim was being decided and she had a right to have a decline. Not only that, she was told that they could apply it. And also, she acted in reliance trying to develop some evidence that would support her entitlement here, although we know that in these situations, new evidence, it's still under dispute. You have the November case before you right now, again, for the third time, it's still under dispute. Whether you can add new evidence, the fact remains that she did act in reliance on her belief that she had this avenue open to her. And again, the third problem, it was a, the nature and extent of the change in law, this was a vast change in law. It narrowed the number of claimants who would be entitled to DIC, the change in law did that. Under the green case, as I said, there were a larger number of claimants who were entitled, she would be shut out under the rule change. And so, basically, this changed the substantive criteria for entitlement to DIC, a vast change. So, she clearly meets all three of the requirements for retroactivity here. And again, there are many cases, since this seems to be a point of dispute here, there are many cases that do say that if you're just an applicant out there and you don't get a decision on your case, why are the more liberal role it's in effect, then there's no retroactive effect. She can be distinguished from those cases. And many cases, like Woodyear, the new comes case, the crime, crime tree medical associates, all of them said, oh, you're just an applicant. And so, there's no retroactive effect. But in her case, she did have a decision. She was not just an applicant at that time. She actually got two VA decisions while the more liberal role was in effect. Okay. Thank you, Ms. Berkeley. Mr. Chadwick, let me ask you a hypothetical

. She can be distinguished from those cases. And many cases, like Woodyear, the new comes case, the crime, crime tree medical associates, all of them said, oh, you're just an applicant. And so, there's no retroactive effect. But in her case, she did have a decision. She was not just an applicant at that time. She actually got two VA decisions while the more liberal role was in effect. Okay. Thank you, Ms. Berkeley. Mr. Chadwick, let me ask you a hypothetical. Suppose she had first filed her claim after Green had been decided, would the result be different? No. Pardon me, no, it shouldn't be different. Because you still have to look at the nature and extent of the change in the outcome, if you will, or the applicable law, that would occur during the penalty of the crime. And that still remains the interpretation by the secretary who was a competent, a Turk of this ambiguous statute, and specifically these five ambiguous words, or it wasn't titled to receive. That is not a momentous change, certainly given that the VA had already announced the interpretation in 1999, well before Green had his claim as well, which essentially now this court has, upon the ruling rule, has upheld as essentially reasonable and with limited exceptions that still remain pending. So, no, the result should not be the same. It would certainly be another choice of the case. Certainly, these cases are arguably slightly more clear. I want to go back to what I asked you before to be sure I understand the government's position and what our ruling here, if we accept your position, would mean that that is the veterans court essentially exercised discretion in deciding whether or not in her case, in her particular case, at least, the retroactivity would rule, would work to her disadvantage. You're asking us to say that there is no discretion, is that right? I think the answer is yes. What we're asking the court to say, just as it did in Derrick or St

. Suppose she had first filed her claim after Green had been decided, would the result be different? No. Pardon me, no, it shouldn't be different. Because you still have to look at the nature and extent of the change in the outcome, if you will, or the applicable law, that would occur during the penalty of the crime. And that still remains the interpretation by the secretary who was a competent, a Turk of this ambiguous statute, and specifically these five ambiguous words, or it wasn't titled to receive. That is not a momentous change, certainly given that the VA had already announced the interpretation in 1999, well before Green had his claim as well, which essentially now this court has, upon the ruling rule, has upheld as essentially reasonable and with limited exceptions that still remain pending. So, no, the result should not be the same. It would certainly be another choice of the case. Certainly, these cases are arguably slightly more clear. I want to go back to what I asked you before to be sure I understand the government's position and what our ruling here, if we accept your position, would mean that that is the veterans court essentially exercised discretion in deciding whether or not in her case, in her particular case, at least, the retroactivity would rule, would work to her disadvantage. You're asking us to say that there is no discretion, is that right? I think the answer is yes. What we're asking the court to say, just as it did in Derrick or St. Nicholson, is that the retroactivity issue given, the given set of facts is an issue of law that this court have reduced. Well, as I understand, you're not saying that we should say there's no discretion, what we should say is, in the circumstances of this case, there was no impermissible retroactivity. That's true, but I just want to make clear that it's treated as in Derrick or St. Nicholson as a matter of law, not sort of a piece of discretion, but to the extent that that's a legal issue, yes. And what you're saying is that if something, in fact, as a matter of law, is retroactive, by definition there's no rule to say, well, it's retroactive under the law, but we're going to do equity and wage-flash retroactivity in this case. Well, certainly in the circumstances of this case, where the secretary, already it doesn't have, and certainly didn't try to exercise retroactive rule when he was born. So if the court determined that this rule was indeed retroactive, that's not what the secretary said it was, so that would, that would decide it's not fair, not the sort of thing that happens. So briefly, if I can, that nothing that occurred after, certainly after, as Vincent and his three, rather, if you're a minister, any DIC advocate to file a claim, is relevant conduct for purposes, rather retroactive, retroactivity, or it's rise to settle next petitions when reasonable rights. And the case that shows that is the 1997 Goodyear case in this court. It's a distinction that hasn't been raised, but there's this distinction between primary and secondary comp. And Goodyear says quite clearly at the one-eighteen-fth, at 1538, that what conduct means, for purposes of retroactivity, is the primary conduct out of the world, not the so-called secondary conduct, which in Goodyear's case, the court described as the manner in which it must prove that it's suffered an injury, which is commensible by the agency

. Nicholson, is that the retroactivity issue given, the given set of facts is an issue of law that this court have reduced. Well, as I understand, you're not saying that we should say there's no discretion, what we should say is, in the circumstances of this case, there was no impermissible retroactivity. That's true, but I just want to make clear that it's treated as in Derrick or St. Nicholson as a matter of law, not sort of a piece of discretion, but to the extent that that's a legal issue, yes. And what you're saying is that if something, in fact, as a matter of law, is retroactive, by definition there's no rule to say, well, it's retroactive under the law, but we're going to do equity and wage-flash retroactivity in this case. Well, certainly in the circumstances of this case, where the secretary, already it doesn't have, and certainly didn't try to exercise retroactive rule when he was born. So if the court determined that this rule was indeed retroactive, that's not what the secretary said it was, so that would, that would decide it's not fair, not the sort of thing that happens. So briefly, if I can, that nothing that occurred after, certainly after, as Vincent and his three, rather, if you're a minister, any DIC advocate to file a claim, is relevant conduct for purposes, rather retroactive, retroactivity, or it's rise to settle next petitions when reasonable rights. And the case that shows that is the 1997 Goodyear case in this court. It's a distinction that hasn't been raised, but there's this distinction between primary and secondary comp. And Goodyear says quite clearly at the one-eighteen-fth, at 1538, that what conduct means, for purposes of retroactivity, is the primary conduct out of the world, not the so-called secondary conduct, which in Goodyear's case, the court described as the manner in which it must prove that it's suffered an injury, which is commensible by the agency. That's all litigation, at the review of a claim is all secondary conduct, and it's not the type of conduct or reliance that is discussed in retroactive cases. Thank you, Mr. Chadwick. And the department, the case is taken under submission. Thank you. Thank you. Thank you.

I'm going to do a little bit of the same thing. This is number 06, 7166. Vincent against the Secretary of Veterans Affairs is to chat. We'll make this a court tomorrow. A rule is said to be a retroactive if it upsets settled expectations on which a party rely in a completed transaction of completed conduct in the past. A numerous correlations, but that seems to be common ground. What we have here in Rodriguez, which is of course the sort of root case that's ending this month, this is the own case, are determinations relating to government benefits under a statute that this court has held is ambiguous. So it doesn't appear that at any time regardless of what the case law may have been at any given time, a plan of what it had is settled expectation, what it had a basis to rely upon an expectation that under this end, that you would statute these words entitled to receive, or judge a key one here, would be a turquoise in any given time. That arguably, although it's not a critical to our argument, arguably the facts in both Rodriguez and Vincent point even further away from retroactivity in that, Ms. Rodriguez and Ms. Vincent both filed their claims for dependency and anonymity compensation at a time at which the prevailing interpretation, as far as the public was concerned, was the interpretation of the VA that had been announced in the VA's general counsel. Would it have made a difference in New York they didn't file until after the veterans court had decided those cases? Well, I don't think so, and that's why I prefer to say I don't think it is critical, because even then you would have had as this court sort of discussed in the November 1 decision, an intermediate court ruling, which went one way, was in conflict with the agencies interpretation, the agency still had a vehicle or means, if you will, to reestablish its interpretation of the statute, which is what it did in the rulemaking in 2000. So there certainly couldn't have been any settled expectation, or if you will, the best thing is right is what we did. But didn't our expectation change while the matter was pending before the department as a result of those decisions of the veterans court? Well, if she locked in and effected her certain expectation, what it was when she filed her claim? Well, her subjective expectation, you know, yeah, would have changed or any parties of subjective expectation, you know, that would have changed as time went on. The point, I think, to be made is that no expectation would have been settled at any point in this court, or if you will, bested at any point in this process, up to and including the time at which the actual benefits decision is made, in fact, the law of benefits law comes, is subject to change. And with a series of cases that we've cited, the, for instance, the Holmes case, the Hormaw case from the sixth circuit, some of the cases cited in that decision. So, you stand for the idea that by filing an application or a claim, an applicant doesn't sort of freeze an amber that the expectations whenever they wore, that it would have existed at that time. That actually, as I emphasize, is not really even so germane specifically that this Rodriguez was mentioned, because at the time they filed their claims, it wasn't even a space lock, but you didn't have the case law of existence at that time. And another claimant would have had no settled expectation on right. So, are you saying that basically whatever expectation was at various stages in the proceeding, it's not the kind of an interest that is, that cannot be retroactively altered? That basically what you say, it isn't as though I, when I commit a crime, I knew the maximum sentence was 10 years and afterwards they raised apparently the 15 years, which you can't do. But here it was sort of a shifting thing. First she, she hoped, first she filed and she knew she couldn't get it. Then there was some innovating decisions she thought maybe she could get it. But then there was another decision by the secretary, which says no, you can't get it. And that that's not enough to say that this is impermissible retroactivity. I think, yes, certainly I agree with all that. I think to go a little bit further, I think our position is truly not retroactively at all, because it's an existing rule that is applied certainly in this instance in this Rodriguez case. As the law was when the claim was filed, as it happens, is what the law was when the claim was decided. But even so, we have to look at it objectively, not as to any claimant's particular subjective expectations. And there couldn't have been an objective expectation of stability at any point in the process. Now that, that task, of course, is, it has been sort of formulated into the specifics sort of through prongs that are discussed in line graphic and prescriptions in particular. And those prongs, if you will, follow what we've said about retroactivity, and then it upsets settled expectations on which a party relied and completely come back to the past. So we look at what we're expecting, upsetting stuff in settled expectations, is the nature and the degree of the change that's created by the rule. And then the connection to past events has to do with the reliance in past conduct. And the reasonable notice kind of fair warning issues also related to the reliance in past conduct. Now those cases in which retroactivity has been found, or if you're a retroactivity has been found, are cases in which a claimant, such as, well, party, such as Curtis Cruz, for instance, took actions that are in a sense irrevocable or irreversible in the past, in reliance on a specific legal regime that now has been changed. And there's clear appearance of unfairness, or it's a screws and a coarse, didn't collect certain information from its past and your share about it. And so it couldn't comply with this new rule. And so there was an incentive sort of a switch, and there was no opportunity for that. And your point is I'll take it. There's nothing she could have done that could have possibly changed her position. She would stuck with whatever they were going to do, unlike the situation where someone might say, well, if I had known that, now I would have filed earlier. Right. And given the context here, dependency, C in an entity conversation, which is, of course, a sort of grave matter, we don't want to be disrespectful to the claimant at all or certainly to the family. And there certainly is an integration to believe that any of these factors, whether the deceased veteran had been rated with 100% disability for 10 years, receiving his or her death, whether that could have been changed, it would have been changed in some way in reliance on something like a regime, the timing or the filing of the claimant itself. There's no reason to expect that the legal regime necessarily impacted that. But your position is that there's no basis for considering at what I'll call the equities, unless it's totally black and white, that is, unless there was an explicit change of position rather than the position which existed. Well, the land graph in the Princess Pruis' test has been expressed as a sort of balancing test. But it's also... Well, that was my question. I gather that you are saying, no, you can't balance in this case because certainly if you do, there are equities on her side. Well, the court didn't endorse this, but we certainly agree with the position that sort of suggested in Princess Pruis' test that other circuits have been adopted, that this... The reason we're alive with fair warning of notice issues under the third pronged R in effect, what the court called tie-breakers in cases that appear to be quite close. Here, we'd suggest that where the other factors, the nature of the alleged change in the law, where the law itself was ambiguous in some of the flux, and the lack of any relationship to any complete transaction or any reliance by a claimant passed, should be decisive. And the equities, obviously, are unfortunate when anyone was... That was my question. Your position is the equities are not to be considered. That's right. I'm afraid that's the case, given what the statute, the requirements of the statute says for, and it gives us an in-bind for providing compensation. And the fact that the agencies' interpretation, which would preclude the theory that Miss Vincent and Miss Rommiger just wanted to pursue here, has been sustained, that appears to be the end of absent other factors. I would suggest it's a retroactive rate. Since I have some time, I would just like to underscore, there really isn't any basis to conclude or very really alleged that Miss Vincent, in particular, wasn't as led by the VA in any way. She was... doesn't argue. She was misled. I do that she complied with the laws. It was at the time. Yes, she does argue that, but there is suggestion in the red brief that VA made some statements while her time was pending suggesting that, she may be able to take advantage of the high-preposition of the theory that somehow contributes to some reliance of her part. We don't think, of course, the statements made during the administrative process, but on the types of communications or create the kind of reliance that's relevant here in a retroactive way, but we do want to be clear since I do have time to respond that Miss Vincent's case was among those that were stayed during the review of the rulemaking in 2000, specifically because the outcome of the claim was understood to be controlled by whether the high-preposition of the law was being controlled by the law. That's why the claim was stayed and that's what VA argued. In our opinion, that's what VA stated to her during the communications, because that was why the claim was stayed. It wouldn't have been stayed if there were not any possibility that the revised rule would apply to the claim. It wouldn't have been stayed, it wouldn't have been forwarded inside. There's really no misleading statements at all about VA. Unless there are questions, I'm not reserved in the name. Thank you. Thank you, Mr. Chair. May I please, the Secretary has made several statements that are incorrect in this case. One statement, of course, is that there's no unfair surprise here, no setting of self-expectations. We have a kind of a problem. She doesn't even apply for a hypothetical claim until eight months after the rule changes, right? But nevertheless, the first adjudication of her claim occurred in June of 97 after the green case came out, which interpreted the law to mean that there was an avenue of entitlement. But how would anybody have perceived that she was even seeking that avenue when she didn't file for it until after it was no longer available? Well, I would say that her expectation at the time of filing is not necessarily in this case, given all that we're going to talk about that happened afterward, is decisive in this case, because she was led to believe, via specific VA adjudications during the claims process, that she was entitled under this hypothetical method. So our position is that there wasn't upsetting of self-expectations here specifically. She was told in May of 02 in a VA adjudication that because she had filed prior to the date of the change, that she would still be considered under the hypothetical entitlement. And indeed, they did adjudicate the claim then. That was a denial of benefits under hypothetical entitlement. And she appealed to the board, fully expecting that her claim was going to be whether she was entitled under the hypothetical avenue. There without any notice at all, the board completely changed the position of the VA and said that she never had an avenue. She doesn't have an avenue of entitlement under the hypothetical theory. But the board is the thing that she was told was that the regional office? Yes, that's in the record. Well, I don't bother with that. She was told that the regional office, but the board is a superior of the regional office, isn't it? In other words, the regional office told her that, well, we start with the fact that when she originally applied, she had no reason to believe she would prevail on this. She's not right. Which she filed her first claim. And then subsequently, as the thing went along when it came before the regional office, and they said, you're okay. And then the one up to the board and the board said, no, you're not okay. And the board, it seems to me, is the one that has a controlling voice on this rather than the regional office. Well, I'm trying to prove the element of unfair surprise and upsetting subtle expectations here by referring to a VA decision in the appendix at page 216 that says, however, since you filed your claim prior to the 1-00-date, in Title II hypothetical rating for the IC, will continue to be considered. So that, of course, led her to believe, and several VA documents prior to that time had led her to believe that she did have the hypothetical avenue open to her. But I also want to, and in this case, actually, it's kind of similar to Princess Cruz's case where the Cruz-Lon had received a letter called the Frick Letter, saying that they wouldn't have to pay this tax. And although the court in that case said that wasn't a decisive document, it was just a letter from the Customs official, still they considered it very important in terms of the upsetting, upstead expectations that the Cruz-Lon naturally received this letter, saying, no, you won't have to pay this tax, and later they applied the law to her. Now, in this case, our case is even more persuasive on that element because this was a VA decision document on page 216 that told her that she could use the hypothetical avenue to get entitlement to DIC. I see. So it's even more persuasive. I mean, there's nothing she could have done as a visitor who would have changed the resolvers there. This isn't a case where someone delayed filing and said, had I known, I would have filed, although she failed to state a claim at the time, but she didn't think she had. There's nothing she could have done once she'd filed her claim that would be affected by the ruling on this point. I'm not sure I knew that, I'm not sure I'd follow it all away. Oh, well, let me try making it see if I can make it a little clearer to you. In many situations, one of the factors that's taken into account in determining retroactivity is whether if the person involved had known what was going to be done, they would have altered their course of conduct. Whereas here, once she filed her claim, there's nothing she could have done in the way of ordering her conduct, had she known what the other end result was going to be. Well, in fact, she did alter her conduct and we would also dispute the Secretary's statement that there's no relevant past event here that's connected to the change in law. In fact, the... How did she alter her conduct? What did she do? What did she do that she would not have done or what had she not done that she would have done, had she known at the time she did it, but later on, they were going to change the rule. Well, if you're looking for a particular conduct, why this is Vincent, there's evidence throughout the record that she went ahead and tried to develop evidence pertinent to the... Hypothetical and Title IX Avenue. In the John Appendix at page 107, you have a letter that she submitted that goes to the hypothetical and Title IX Avenue, saying essentially that the veteran had filed for total disability rating in 77 many years before he died. He was denied at that time and then he did not approach the VA again at Title IX Avenue. Well, could she have done that might have avoided what happened and there's nothing she could have done that would have prevented her from being ultimately told that you're not going to get these benefits. Well, in my question, going to the relevant past, in my criminal hypothetical theoretically, the defendant would say, well, I would have been willing to run the risk of 10 years in prison, but I wouldn't have held up the bank had I known that I would be sent to jail for 15 years. There's nothing in that sense that she could have done. I gather when you said what she did, all she did was try to present evidence supporting her theory of the case. Yes, and that goes to both the requirement of a past event and also an element of reliance. She acted in reliance on her belief that the VA allowed her to prove entitlement under the hypothetical. But I don't see you arguing that because this is a veteran and veteran's benefits that the ordinary routine rules of retroactivity should be changed or should not apply. We have not made that specific allegation because we believe that this factual scenario here fits the Princess Cruises factors. She has proved everything. A change in the law, green was the law interpreting that she had this avenue of entitlement. The group of people who were entitled to DIC was, let's say, this large and then the changing regulation came about and constricted that circle of people who were entitled to DIC. This was a substantial change in law. It actually changed the requirements for entitlement to DIC. That's one element, the nature and extent of the changing law. The second element relevant past conduct is that the VA adjudicated her decision in June of 97 and it also went before the board while the green case and subsequent cases were in effect. Those cases entitled her to adjudication under the hypothetical avenue. She has relevant past conduct. She relied, she tried to develop evidence that would be relevant to entitlement in the hypothetical avenue. She was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she was a woman and she changed the rule. The only thing she had done differently, I take it, is not submit some of the material she submitted. Was that right? Kelly Walsall She acted in reliance on her belief that she had no idea of what she was doing. Kelly Walsall I'm asking you suppose she didn't have had no had that belief what would she have done differently and the only thing that she would have done differently, I take it, is she wouldn't have submitted this evidence because it wouldn't be relevant. Well, again, several cases appear to us to support the view that if there was an adjudication while the prior rule was in effect, an actual decision by the agency while the more liberal rule was in effect, that that would be a relevant past conduct. In the good year case, decided by this court in 1997, good year didn't have a vested right to receive consideration for the refund because they were simply an applicant whose claim had not been approved. And in this case, Mrs. Vincent's case went through the adjudication process before the new rule came into effect in OO, twice it went through in June of 97, and again at the board before the rule changed. So in this case, she is not just an applicant who has filed a claim. She is someone who had an entitlement in June of 97 to be considered under the hypothetical avenue, and again, whenever her case was before the board, before the rule changed. So if we can differentiate her from cases that are looking for saying, oh, you're just an applicant in the rule change while your claim was in the process here, she's an applicant whose case was adjudicated, specific decisions while the more liberal rule, if I may call it that, was in effect. So she is not just an applicant out there, she does have actions to hang her hat on to meet the relevant past conduct. She tried to develop evidence. Well, I might just suggest that it was adjudicated, but not finally adjudicated. Well, you're right, it was adjudicated, but not finally adjudicated, but she was also told. And the question is whether they could change the rule during the course of the final adjudication. Well, that would certainly upset her so expectations, given the VA decision and actual decision in her case in 02, that because she had filed prior to the rule, she had a right to be considered under the hypothetical avenue of entitlement. They specifically told her that and the fact that they, themselves went back and forth in several ways in their interpretation of the law, while her case was under consideration, does not change the fact that the green case was binding law while her claim was being decided and she had a right to have a decline. Not only that, she was told that they could apply it. And also, she acted in reliance trying to develop some evidence that would support her entitlement here, although we know that in these situations, new evidence, it's still under dispute. You have the November case before you right now, again, for the third time, it's still under dispute. Whether you can add new evidence, the fact remains that she did act in reliance on her belief that she had this avenue open to her. And again, the third problem, it was a, the nature and extent of the change in law, this was a vast change in law. It narrowed the number of claimants who would be entitled to DIC, the change in law did that. Under the green case, as I said, there were a larger number of claimants who were entitled, she would be shut out under the rule change. And so, basically, this changed the substantive criteria for entitlement to DIC, a vast change. So, she clearly meets all three of the requirements for retroactivity here. And again, there are many cases, since this seems to be a point of dispute here, there are many cases that do say that if you're just an applicant out there and you don't get a decision on your case, why are the more liberal role it's in effect, then there's no retroactive effect. She can be distinguished from those cases. And many cases, like Woodyear, the new comes case, the crime, crime tree medical associates, all of them said, oh, you're just an applicant. And so, there's no retroactive effect. But in her case, she did have a decision. She was not just an applicant at that time. She actually got two VA decisions while the more liberal role was in effect. Okay. Thank you, Ms. Berkeley. Mr. Chadwick, let me ask you a hypothetical. Suppose she had first filed her claim after Green had been decided, would the result be different? No. Pardon me, no, it shouldn't be different. Because you still have to look at the nature and extent of the change in the outcome, if you will, or the applicable law, that would occur during the penalty of the crime. And that still remains the interpretation by the secretary who was a competent, a Turk of this ambiguous statute, and specifically these five ambiguous words, or it wasn't titled to receive. That is not a momentous change, certainly given that the VA had already announced the interpretation in 1999, well before Green had his claim as well, which essentially now this court has, upon the ruling rule, has upheld as essentially reasonable and with limited exceptions that still remain pending. So, no, the result should not be the same. It would certainly be another choice of the case. Certainly, these cases are arguably slightly more clear. I want to go back to what I asked you before to be sure I understand the government's position and what our ruling here, if we accept your position, would mean that that is the veterans court essentially exercised discretion in deciding whether or not in her case, in her particular case, at least, the retroactivity would rule, would work to her disadvantage. You're asking us to say that there is no discretion, is that right? I think the answer is yes. What we're asking the court to say, just as it did in Derrick or St. Nicholson, is that the retroactivity issue given, the given set of facts is an issue of law that this court have reduced. Well, as I understand, you're not saying that we should say there's no discretion, what we should say is, in the circumstances of this case, there was no impermissible retroactivity. That's true, but I just want to make clear that it's treated as in Derrick or St. Nicholson as a matter of law, not sort of a piece of discretion, but to the extent that that's a legal issue, yes. And what you're saying is that if something, in fact, as a matter of law, is retroactive, by definition there's no rule to say, well, it's retroactive under the law, but we're going to do equity and wage-flash retroactivity in this case. Well, certainly in the circumstances of this case, where the secretary, already it doesn't have, and certainly didn't try to exercise retroactive rule when he was born. So if the court determined that this rule was indeed retroactive, that's not what the secretary said it was, so that would, that would decide it's not fair, not the sort of thing that happens. So briefly, if I can, that nothing that occurred after, certainly after, as Vincent and his three, rather, if you're a minister, any DIC advocate to file a claim, is relevant conduct for purposes, rather retroactive, retroactivity, or it's rise to settle next petitions when reasonable rights. And the case that shows that is the 1997 Goodyear case in this court. It's a distinction that hasn't been raised, but there's this distinction between primary and secondary comp. And Goodyear says quite clearly at the one-eighteen-fth, at 1538, that what conduct means, for purposes of retroactivity, is the primary conduct out of the world, not the so-called secondary conduct, which in Goodyear's case, the court described as the manner in which it must prove that it's suffered an injury, which is commensible by the agency. That's all litigation, at the review of a claim is all secondary conduct, and it's not the type of conduct or reliance that is discussed in retroactive cases. Thank you, Mr. Chadwick. And the department, the case is taken under submission. Thank you. Thank you. Thank you