Legal Case Summary

139 young men against you, Mr. Carpenter, when you're ready. May I please court? Thank you very much, Your Honor. Can a Carpenter appearing on behalf of Sharon Youngman? As youngman is an attorney who was appointed by the VA as a fiduciary. A fiduciary is defined both by statute and by VA regulation. The fiduciary's function by both statute and regulation is to receive benefits that are due and payable to a veteran during that veteran's life. The benefits at issue in this case were such benefits. Those benefits were not paid to the fiduciary. And you and the youngman would be a successor by the judiciary, a pointy correct? That would be correct. A previous one for the past due, $350,000 was created on the account of the previous curator, but then he paid off the file and correct reports and had to be replaced. Well, actually, I think chronologically there were problems with the other fiduciary, but because of the delay in getting the actual document published, which created the past due benefits, that happened in the transition between the two fiduciary. But the record shows that they 58 that there was estimated the a retro check of 350 served just there around the time of the previous person. And they said, don't issue that check until the successor's appointed. That's correct. And the reason that I say that is, is that there was a delay in publishing the actual rating decision that created that payment. But the bottom line was, yes, those payments were deemed to be payable to Mr. Richardson under. As it were, I understand the Kansas statute annotated on compensation, the curator. No compensation would be allowed to miss youngman on the corpus of the estate that was created on the account of the preceding curie. I'm reading you from

. Yeah, that would probably be correct. So whatever, Ms. Youngman would be able to do, she would not be able to get any compensation associated with that $350,000. Not as it would have existed had it been paid. I think it would be a question for the district court to decide based upon the significant delay. And there's no, according to our previous opinion, what I understand, in case the veteran died without any spouse, children, or dependent parents. No qualifying survivors under $50. No, we, the veteran may have had some creditors. Actually has some errors, you're on her. He does have some errors, but they're not qualifying errors under $51.21. But so the money would not F.E. To the state. No, it would not. Because of the errors. Because of the estate. There is in a state that was opened in Wine.County by the errors of Mr

. Richardson and the monies. It goes on to the federal rules if there were no possible errors under state law. And the F.E. would go to the state. Then if the money had been paid over in the young one, she'd be obligated to pay it back. Pay it right back. That would be correct. And and that is not what is Ms. Youngman going to do with this money, this 350 if she gets it. To pay it to the estate. To pay it to the estate. Correct. As she would have had the VA distributed the money as they indicated originally that they were intending to do. And as they caused her to get a $450,000 bond in order to receive that money. And all of those actions were taken and accomplished prior to Mr. Richardson's death. The question becomes here whether or not the board's dismissal of this appeal and the affirmance by the veterans court misinterprets the VA statute and regulations that apply to fiduciaries. Fiduciaries are assigned with the specific responsibility to receive

. Well, I'm trying to get me because I couldn't tell from your brief what's going to happen in the money. You're now telling me that it's not a record that there are some errors here. No, you're I mean it is not a record, but yes, they're all. I mean, it's it's it's looked to me like it's the only hinge you had for your case. I understand your argument based on the regulations. And I'm you did present that argument below and the BVA should have ruled on that and in my judgment, they were wrong to say that they had no jurisdiction. But the CABC gave an implied interpretation of those regulations as your brief says. And they said, well, I'm sorry, those regulations can't mean what Mr. Carpenter says they mean because when the veteran dies, he dies and whoever standing in the shoes of the veteran has no better claim than the veteran. And this young one would be standing in the shoes. So that's the implied interpretation. That's correct. And what I think you're trying to tell me is the person that's getting jipped here are the errors. That's correct. This is not it's it's not a child is not a wife and it's not a dependent parent, but it's cousins or something like that. That's right. And if they're saying there's no way to get that money out of the federal government and into a probate court in Kansas, unless it passes through Mrs. Young. Mrs

. Young. That's correct. Would have been helpful if you told me that in a brief. Well, unfortunately, that was the part of this case that was cut off by the B.A. Because they refused to entertain. But you could certainly have let us know that. I mean, on the face of the briefs, so I was asking what's Miss Young going to do with the money because she has to certify that she has applied the benefits for the best interest of the beneficiaries. She had duty to make that declaration. Right. And so I got to do something with that money other than just enjoy it. Well, that was my mistake, Your Honor. I the VA was informed. They have had contact with the estate and they refused the estate as they refused. So where's the hook? Where's the statute? Any authority to the VA to transfer money to Miss Youngland or and on behalf of the errors of the proceeding? There is no such hook, Your Honor, but I don't think such a hook is required. What is required? Maybe it is. Well, well, the plain reading of the fiduciary statute is to have someone to receive the VA benefits when the VA makes a determination and they had already made the determination that Mr. Richardson was not competent to send those monies to on his behalf. And they certified that Miss Youngland was that qualified person prior to his death

. It was never between the past benefits and the accruing benefits because as of the day he died. Right. Miss Youngland could not receive a monthly benefit for him. That's correct. That's correct. That's correct. That's correct. That died with him. That's right. And what the VAVC is saying, they interpret the lump sum passed through the retro to be exactly the same. It dies too. That's right. And I believe Congress provided that the retro could go to three different places. It could go to children. It could go to a spouse or a dependent parents. That's correct. It didn't say anything about other errors. That's right. Right

. And so in the silence of no other errors, why should the VA give the money to Miss Youngland to give to the probate court in Kansas for the errors? The federal law is supreme. And federal law has, as I understand it, what you're telling me now, excluded the errors. That's right. But the fact in this case were that these monies should have been transferred by the VA prior to his death by the internal directions of the VA, which they changed retroactively. The order of the inquisined on Miss Youngland's commission, why for any afternoon, I'm sorry. No, Your Honor, if you'll look at the record at page 60 on May 19, 2005, the VA Service Center Manager issued a certificate of legal capacity to receive and disperse benefits, designating Miss Youngman as Mr. Richardson's legal custodian. That's in the record at VA 60 for monthly. For the monthly. Right. But if you- Absolutely withhold all retro pay. So no authority to transfer the retro pay. That's page 60. Retro pay was on hold. Says right here. Yes, but I'm sorry, thank you. Okay, page 67. Okay. That's the one that's July 25, July 27, 05

. Mr. Mr. the veteran died the next day. That's on page 67 and that's where the lump comes out. The retro comes out right there because the bond was pre- it was received. That's correct, Your Honor. So it's somewhere in, you know, as the close of business on the 27th and the veteran died the next day. I don't know what time- do we know the hour of death? I'm sorry, I do not recall. But my recollection- We're talking we're less than 24 hours. Yes, yes, yes, Your Honor. Your argument is by force of law the money went after the document at J.A. 67 was created. Yes, Your Honor, but the appointment of Ms. Youngman as the fiduciary entitled her to receive those benefits and the only thing that the VA was waiting on was what's reflected in the documents at- Sorry, the month. The month. That's right. Because she's, she's a new impact and she's got no authority to receive until the bonds in place. She has a title that she has no right to receive

. That's correct, Your Honor. So nothing's happened until the late in the day, apparently, on the 27th of July. Well, why, why, it looks to me as if, and I haven't been able to sort this out entirely, maybe you've been over this, but it looks to me as if other provisions of 5502 other than A seem to address this collection of problems that arise when there's a lump sum of money and there's a fiduciary in the picture. For example, 502E deals with the problem. What you do if the money was achieved to the state, which is that the statute says, no, no, no, it's achieved, we get it. We'll keep it. Okay, thank you. I'm looking at D, which looks like it addresses perhaps a case such as this. I had not, like Judge Cudendor, I had not realized that your claim ultimately was for the benefit of the estate, but it looks as if that authorizes the secretary to withhold the payment and then to make such portion of the payment is necessary to take care of the dependence and those others that would be eligible under 5121, but otherwise not to pay out money, which would ultimately go to the estate. Is that not your reading of 5502D? Yes, Your Honor, but I believe that that is read in concert with 5121A when there are qualifying survivors under 5121A. In other words, it is where those two actually merge. In this case, it is my view that those do not merge. In fact, the veterans court noted that at no time as Ms. Youngman ever asserted that she qualifies under 5121A. Yes, but if 5502D deals with the problem, what do you do if you do have some 5121 qualifying beneficiaries, but then you have money left over or whatever, but this at all goes back to the Treasury. It would seem odd to say that that doesn't happen if you don't have any qualifying beneficiaries. Well, except that to me is the disconnect because if you have qualifying, they get the whole thing. That is where I was having a trial. For example, there is a burial expenses issue

. In that setting, at least, it would sound like you would pay the burial expenses, the secretary that authorized a release for a thousand dollars and whatever, and then keep the rest. That would be correct. But if there don't happen to be burial expenses, then the secretary does not have the option of keeping it all. Well, I do not believe that they do, Your Honor, and that is why Ms. Youngman brought this appeal. She is in a position of having been appointed as a fiduciary and given this responsibility. Then the VA says that she should act in accordance with that responsibility. When she makes demand for that distribution, she was simply taking the appeal through the appellate process, got to the board and the board said, no appeal, appeal, this way. Yes, but I guess the question in my mind, it comes down to this. If you take all the statutes and regulations together, do they amount to telling us that the way that Congress wants these funds to be distributed is to the qualifying beneficiaries under 51-21 and if not back to the Treasury. And if that's the overall structure, then you lose, right? If that were the interpreted intent, that would be correct. The problem here is that there has been no such interpretation made by any court on that issue. Judge Castle below said, no, I'm not going to hear this and did not address that question. He said that this case was controlled by the disposition in Richardson because she could not qualify under 51-21A. I don't know. I mean, he says that the youngman fails to present any cognizable argument that these regulations entitled her to receive benefits when, as here, there is no longer an eligible beneficiary for who she might act. Let's take this up with the VA and we'll say we're about to have to answer these questions because we're repeating our concerns. Thank you. Brian, you see the problem with troubling us

. What's the position of the VA? The position of the VA, your honor, is actually what Judge Bryson articulated earlier. That Congress has spoken to the situation and what occurs when there are accrued benefits that are doing unpaid at the time of the veteran's death is governed by Section 51-21. And under that statute, the benefits are paid to the eligible listed beneficiaries and then under Section A6 of Section 51-21, in all other cases, the VA may only pay as is necessary to reimburse the expenses of the last sickness and burial. Well, so that if this veteran had died one day later, then the money would have flowed to the remote areas without any debate. I don't know that it would take necessarily a day for the payment to process. I think that it was after the payment was processed and it was promptly processed. If the money that the benefits had been paid, then those would have gone on through to the fiduciaries and then on. Okay, can we agree on what would have happened, say, for example, if the veteran had lived for a month after July 27th date. If the veteran had lived for a month later, then Ms. Youngman would have received the retro check that we can assume that. And then the VA would have realized that the veteran had passed away and the VA has regulations for saying, well, we'd like some of the money, we'd like the money back if it would have cheated. Yes, if it would have cheated. Now, if indeed there was a living error, then under Kansas law, the 350 would not have been cheated, correct? That is my understanding. So that's how the chances are that the error was legitimate and all the rest, the error after probating what not would have enjoyed substantially the proceeds of the retro check. Yes. Okay. Now, under your interpretation, based on the 51-21, the castle, the vice-drug crisis, that Congress has made a decision that cousins in Kansas get disinherited. That's under Section 51-21 now. That's right. Those cousins are disinherited, not as much as our federal law. That is correct. And I think that would reflect the policy decision by Congress that the enumerated individuals that may take under Section 51-21 are the dependents. And those people that would be relying upon a veteran and so that Congress has made the policy judgment along the way that heirs under the law of whatever states may be. The acting system with the overall scheme that the veterans benefits are payable to a veteran and his dependents, not to a veteran and his relatives. That is correct, Your Honor. But I think we, while you're completely correct, we actually don't even need to reach in these issues because the court has already decided these issues and Richard Zinby-Neckelson in 2007. And in that case, Ms. Youngman brought suit attempting to substitute. And this court decided that Mr. Richard Zin's death extinguished his claim to the benefits. And therefore, his fiduciaries entitlement to those benefits. So claim preclusion bars this second suit based on that exact same set of facts. Ms. Youngman's attempts to distinguish Richard Zin really fall flat here. In her reply at one, Ms. Youngman argues that Richard Zin addressed only the estate's ability, not the fiduciaries' ability to compel payment. This court's decision at page 885, though, framed Ms. Youngman's argument as the fact that the Department of Veteran Affairs' prior recognition of hers as a fiduciary allowed her to compel payment of the same benefits

. Those cousins are disinherited, not as much as our federal law. That is correct. And I think that would reflect the policy decision by Congress that the enumerated individuals that may take under Section 51-21 are the dependents. And those people that would be relying upon a veteran and so that Congress has made the policy judgment along the way that heirs under the law of whatever states may be. The acting system with the overall scheme that the veterans benefits are payable to a veteran and his dependents, not to a veteran and his relatives. That is correct, Your Honor. But I think we, while you're completely correct, we actually don't even need to reach in these issues because the court has already decided these issues and Richard Zinby-Neckelson in 2007. And in that case, Ms. Youngman brought suit attempting to substitute. And this court decided that Mr. Richard Zin's death extinguished his claim to the benefits. And therefore, his fiduciaries entitlement to those benefits. So claim preclusion bars this second suit based on that exact same set of facts. Ms. Youngman's attempts to distinguish Richard Zin really fall flat here. In her reply at one, Ms. Youngman argues that Richard Zin addressed only the estate's ability, not the fiduciaries' ability to compel payment. This court's decision at page 885, though, framed Ms. Youngman's argument as the fact that the Department of Veteran Affairs' prior recognition of hers as a fiduciary allowed her to compel payment of the same benefits. And the court also noted that in Richard Zin, Ms. Youngman argues that no other relief was available to her or the airs that law accepts substitution in Richard Zin. Nevertheless, we're back again with a second suit on the same set of facts and seeking to compel payment of the same benefits just now pointing to different regulations. Even if those regulations were relevant to this case, which they're not. The name of the petition was in trap for the only worry. It's not that it was necessarily a trap for the unwery, but there is an absolute obligation of a party that if they are coming to court for relief, they need to raise all of their grounds to release a single suit to prevent the success of litigation. Again, even if the entire suit is not barred, the issues at heart here have already been decided that Ms. Youngman is not someone that can take these benefits. She can't pursue a claim that is lapsed with Mr. Chair of Richard Zin's debt. And I think that goes back to what your Honor said earlier that a fiduciary cannot have a better claim than that of the individual that they are acting on behalf of. Well, let me explore that precise question a bit for it, with the suppose that we leave the estate and the airs aside, and suppose that Ms. Youngman herself has expenses. So, she had to get a large bond presumably that involves the expenditure of funds. I don't know whether those funds already have in some way been covered by payments from the VA or otherwise, but assume that they haven't. What's her recourse? Statutoryly and under the regulations. Is she just out of lockers? They're recourse for her to go to the secretary and say, pay me for the services that I rendered during my period leading up to and upon my appointment. Uh, Garren, that's a very fair question. I actually don't know the answer

. And the court also noted that in Richard Zin, Ms. Youngman argues that no other relief was available to her or the airs that law accepts substitution in Richard Zin. Nevertheless, we're back again with a second suit on the same set of facts and seeking to compel payment of the same benefits just now pointing to different regulations. Even if those regulations were relevant to this case, which they're not. The name of the petition was in trap for the only worry. It's not that it was necessarily a trap for the unwery, but there is an absolute obligation of a party that if they are coming to court for relief, they need to raise all of their grounds to release a single suit to prevent the success of litigation. Again, even if the entire suit is not barred, the issues at heart here have already been decided that Ms. Youngman is not someone that can take these benefits. She can't pursue a claim that is lapsed with Mr. Chair of Richard Zin's debt. And I think that goes back to what your Honor said earlier that a fiduciary cannot have a better claim than that of the individual that they are acting on behalf of. Well, let me explore that precise question a bit for it, with the suppose that we leave the estate and the airs aside, and suppose that Ms. Youngman herself has expenses. So, she had to get a large bond presumably that involves the expenditure of funds. I don't know whether those funds already have in some way been covered by payments from the VA or otherwise, but assume that they haven't. What's her recourse? Statutoryly and under the regulations. Is she just out of lockers? They're recourse for her to go to the secretary and say, pay me for the services that I rendered during my period leading up to and upon my appointment. Uh, Garren, that's a very fair question. I actually don't know the answer. If there is a provision for that, it seems like something that might be possible or there would always be the estate to make claims against if she believes she has incurred expenses on behalf of Mr. Richardson. There would potentially be other than the VA benefit. Or she clearly, she had to post a bond, she had to pay for that. I mean, so I assume that Youngman has some expenses, out of pocket expenses. Yes, she very well made. And I'm assuming that I'm assuming that the veteran had no money at all. And the cousin isn't responsible for the veteran's legal expenses. I don't know that it would be the case that Mr. Richardson had no money at all. His monthly benefits were being paid by that point had been being paid. It was just a lump sum that was still withheld at the time of death. But going back to the particular regulations that Miss Youngman points to here, they speak only to the authority of the VA to appoint a fiduciary. And absolutely, when a fiduciary is appointed under the very definition of fiduciary section 506, that fiduciary is appointed to receive benefits for the use and benefit of the veteran or other beneficiaries. Nothing in any of the language Miss Youngman has pointed to that's a fiduciary with an entitlement in their own right. Instead, it's always on behalf of the individual. So when there is no longer a fiduciary. You have to apply the benefits for the best interest of the benefit of the year. That's correct

. If there is a provision for that, it seems like something that might be possible or there would always be the estate to make claims against if she believes she has incurred expenses on behalf of Mr. Richardson. There would potentially be other than the VA benefit. Or she clearly, she had to post a bond, she had to pay for that. I mean, so I assume that Youngman has some expenses, out of pocket expenses. Yes, she very well made. And I'm assuming that I'm assuming that the veteran had no money at all. And the cousin isn't responsible for the veteran's legal expenses. I don't know that it would be the case that Mr. Richardson had no money at all. His monthly benefits were being paid by that point had been being paid. It was just a lump sum that was still withheld at the time of death. But going back to the particular regulations that Miss Youngman points to here, they speak only to the authority of the VA to appoint a fiduciary. And absolutely, when a fiduciary is appointed under the very definition of fiduciary section 506, that fiduciary is appointed to receive benefits for the use and benefit of the veteran or other beneficiaries. Nothing in any of the language Miss Youngman has pointed to that's a fiduciary with an entitlement in their own right. Instead, it's always on behalf of the individual. So when there is no longer a fiduciary. You have to apply the benefits for the best interest of the benefit of the year. That's correct. So when there is no- That doesn't include taking care of a needy cousin. Of no, your honor. Instead, as I pointed out earlier, Congress spoke to this situation. We have doing unpaid accrued benefits and therefore this is a section 51-21 case. And Miss Youngman has really presented no argument to the contrary that would make this anything other than an accrued benefits case. But these are not the issues before us. Sorry, they don't. We have quite a fundamental policy issue as to what happens when the veteran dies and their unpaid funds. Whatever the source of the unpaid funds, we have a certain body of precedent which has dealt with it. This is another particular circumstance of funds that should have been paid retroactively over all this period. So we know there's a certain entitlement. I think these are the question of national policies, the best use of these funds. I haven't heard anyone argue that the best use is the remote relatives who were not dependent of the of the veteran. But rather a matter of straightforward administration of these complex statutes. Where are there so many hundreds of thousands or more of beneficiaries involved? Just have a straightforward rule. This again, the veteran lived it up a day or two. But I would totally different policy questions, I would think. So here we have the fortuita or whatever you call it of the time of death and its effect on the check that presumably wouldn't be drawn that afternoon. So where is the policy? It seems to me that well, straightforward policy would be just you're supposed to pay it, pay it

. So when there is no- That doesn't include taking care of a needy cousin. Of no, your honor. Instead, as I pointed out earlier, Congress spoke to this situation. We have doing unpaid accrued benefits and therefore this is a section 51-21 case. And Miss Youngman has really presented no argument to the contrary that would make this anything other than an accrued benefits case. But these are not the issues before us. Sorry, they don't. We have quite a fundamental policy issue as to what happens when the veteran dies and their unpaid funds. Whatever the source of the unpaid funds, we have a certain body of precedent which has dealt with it. This is another particular circumstance of funds that should have been paid retroactively over all this period. So we know there's a certain entitlement. I think these are the question of national policies, the best use of these funds. I haven't heard anyone argue that the best use is the remote relatives who were not dependent of the of the veteran. But rather a matter of straightforward administration of these complex statutes. Where are there so many hundreds of thousands or more of beneficiaries involved? Just have a straightforward rule. This again, the veteran lived it up a day or two. But I would totally different policy questions, I would think. So here we have the fortuita or whatever you call it of the time of death and its effect on the check that presumably wouldn't be drawn that afternoon. So where is the policy? It seems to me that well, straightforward policy would be just you're supposed to pay it, pay it. But there are other issues that I suppose come to the fore when the funds are large enough. But has the secretary taken a policy position or are you arguing whatever it is the answer is no? I believe the policy has been set by Congress, your honor, that if these benefits are paid, they become and the property of the estate, they have gone on to the veteran however if they are not paid, they are then governed by section 5121 and its definition of the truth benefits. That they are benefit, that veteran is entitled to at the time of their death under the existing ratings and decisions but that are due and unpaid. And instead those would go through section 5121. However, if the benefits had been paid, Congress has said those may continue on through to the estate. So it isn't the policy decision of the secretary, it's the clear language of the statute that governs here and the policy is set by Congress. If there are no further questions for these reasons and the reasons that are forth and are... You don't disagree that the Board of Veterans feels erudent saying they had no jurisdiction over Mr. Carpenter's argument based on the regulation. The government agreed below that the board had jurisdiction. However, the veterans court phrased its decision as even assuming that the parties are correct. It never actually made a decision on that particular error. Instead, the veterans court decided on grounds of prejudicial error and that Ms. Youngman was not entitled under these regulations that she had pointed to to these funds. And of course, the prejudicial error determination cannot be used for this court. And Mr. Carpenter didn't preserve the challenge on that

. But there are other issues that I suppose come to the fore when the funds are large enough. But has the secretary taken a policy position or are you arguing whatever it is the answer is no? I believe the policy has been set by Congress, your honor, that if these benefits are paid, they become and the property of the estate, they have gone on to the veteran however if they are not paid, they are then governed by section 5121 and its definition of the truth benefits. That they are benefit, that veteran is entitled to at the time of their death under the existing ratings and decisions but that are due and unpaid. And instead those would go through section 5121. However, if the benefits had been paid, Congress has said those may continue on through to the estate. So it isn't the policy decision of the secretary, it's the clear language of the statute that governs here and the policy is set by Congress. If there are no further questions for these reasons and the reasons that are forth and are... You don't disagree that the Board of Veterans feels erudent saying they had no jurisdiction over Mr. Carpenter's argument based on the regulation. The government agreed below that the board had jurisdiction. However, the veterans court phrased its decision as even assuming that the parties are correct. It never actually made a decision on that particular error. Instead, the veterans court decided on grounds of prejudicial error and that Ms. Youngman was not entitled under these regulations that she had pointed to to these funds. And of course, the prejudicial error determination cannot be used for this court. And Mr. Carpenter didn't preserve the challenge on that. I do not believe so. We challenged the interpretation of the regulations. The implied interpretation yet. Any more questions? Thank you. Thank you, Anna. Please, the court. If we could go back to JA67. This is the document that Judge Clevver and I will discuss in one of the two, one at 60 and one at 67. The date of this document is July 27th, the date of four. 57? 67. This is the date before the death of Mr. Richardson. And under the remarks, it clearly indicates that the bond was received from the curator and all withheld benefits can be released to the curator. This was a disposition that was, as was in response to the hypothetical, had Mr. Richardson died several weeks later. I just, as I just here unfortunately, died very next day. The very next day, that's correct, Your Honor. And the question here becomes whether the VA gets to keep these funds because of the provisions of 51-21 or whether the VA is obligated under their appointment of Ms. Youngman and her qualification and her providing the bond and the VA having received the bond

. I do not believe so. We challenged the interpretation of the regulations. The implied interpretation yet. Any more questions? Thank you. Thank you, Anna. Please, the court. If we could go back to JA67. This is the document that Judge Clevver and I will discuss in one of the two, one at 60 and one at 67. The date of this document is July 27th, the date of four. 57? 67. This is the date before the death of Mr. Richardson. And under the remarks, it clearly indicates that the bond was received from the curator and all withheld benefits can be released to the curator. This was a disposition that was, as was in response to the hypothetical, had Mr. Richardson died several weeks later. I just, as I just here unfortunately, died very next day. The very next day, that's correct, Your Honor. And the question here becomes whether the VA gets to keep these funds because of the provisions of 51-21 or whether the VA is obligated under their appointment of Ms. Youngman and her qualification and her providing the bond and the VA having received the bond. Whether not the correct policy here is, is that you distribute that money as the regulations contemplate to the appointed fiduciary. And that was simply not done here and it was not done here because it was retroactively decided that based upon the death, this would be treated as an accrued benefit matter. This is not an accrued benefit matter. The VA directed what the outcome was supposed to be the day before he died. They simply can't unring that bell. And to try to convert this into a 51-21 action is simply unconscionable when compared to the fact that we're dealing with $350,000 worth of benefits that Mr. Richardson never received during his lot. And with all due respect, this is not about the disinheritance of the Second Cousins. This is about fundamental fairness to Mr. Richardson. Mr. Richardson had the rise to see. He was not deceased on July the 27th, your honor. He was alive and well on July the 27th and on July the 27th, the VA received the bond and directed that all funds were to be released. And then they changed their lives. For some period of time after that he would receive the bond. So the person, it's just clever to say, the person in Mr. Richardson's position, it seems to be, is never going to be prejudiced by the rule that the government is arguing for. It's the areas that are potentially subject to losing out

. Whether not the correct policy here is, is that you distribute that money as the regulations contemplate to the appointed fiduciary. And that was simply not done here and it was not done here because it was retroactively decided that based upon the death, this would be treated as an accrued benefit matter. This is not an accrued benefit matter. The VA directed what the outcome was supposed to be the day before he died. They simply can't unring that bell. And to try to convert this into a 51-21 action is simply unconscionable when compared to the fact that we're dealing with $350,000 worth of benefits that Mr. Richardson never received during his lot. And with all due respect, this is not about the disinheritance of the Second Cousins. This is about fundamental fairness to Mr. Richardson. Mr. Richardson had the rise to see. He was not deceased on July the 27th, your honor. He was alive and well on July the 27th and on July the 27th, the VA received the bond and directed that all funds were to be released. And then they changed their lives. For some period of time after that he would receive the bond. So the person, it's just clever to say, the person in Mr. Richardson's position, it seems to be, is never going to be prejudiced by the rule that the government is arguing for. It's the areas that are potentially subject to losing out. Well, yes, you're going to accept that that seems to me to beg the fundamental question that is at the heart of this action. The VA has conceded that the board was wrong. The board did not give Ms. President. Can you address the policy argument that you're ever sharing that? So this benefit system is set up to benefit the benefit of beneficiary and his dependence, dependence as they're defined. Cousins never get any money out of the system. So the question here is to say when they've been dealing with the past due payment, they said the Congress has decided that if you were in the qualifying line of takers, then even though the veteran himself wouldn't yet have the life the children over the dependent parents would get. But, Your Honor, that requires a claim. That refot requires affirmative action by the filing of a VA form to make a claim for accrued benefits. No such process was required because of the affirmative action of the VA the day before Mr. Richardson's death. And based upon that action, that action distributed required the distribution to the VA and court appointed fiduciary. When that was not done, that was done to the harm of the veteran who at the time was still alive. Do you happen to know if the if the if this young man has any up to 10? No, she does not. No, she's been paid for the bond and everything. As the VA suggested, there were a past due benefit in the regular monthly benefits that that did with health and the transition and those were made available and the expenses have been paid down. I asked a point of history to pick a Kansas history. Yes. Once about time there was a law firm of young men and carpenter

. Well, yes, you're going to accept that that seems to me to beg the fundamental question that is at the heart of this action. The VA has conceded that the board was wrong. The board did not give Ms. President. Can you address the policy argument that you're ever sharing that? So this benefit system is set up to benefit the benefit of beneficiary and his dependence, dependence as they're defined. Cousins never get any money out of the system. So the question here is to say when they've been dealing with the past due payment, they said the Congress has decided that if you were in the qualifying line of takers, then even though the veteran himself wouldn't yet have the life the children over the dependent parents would get. But, Your Honor, that requires a claim. That refot requires affirmative action by the filing of a VA form to make a claim for accrued benefits. No such process was required because of the affirmative action of the VA the day before Mr. Richardson's death. And based upon that action, that action distributed required the distribution to the VA and court appointed fiduciary. When that was not done, that was done to the harm of the veteran who at the time was still alive. Do you happen to know if the if the if this young man has any up to 10? No, she does not. No, she's been paid for the bond and everything. As the VA suggested, there were a past due benefit in the regular monthly benefits that that did with health and the transition and those were made available and the expenses have been paid down. I asked a point of history to pick a Kansas history. Yes. Once about time there was a law firm of young men and carpenter. Yes, there was. The peak is still exists. No, it's down just young. But they still exist. And that was Derek Carpenter? That's correct. Is that a relative? No, but he did practice with me for a time. Thank you very much. It's just a matter of history. Thank you very much. We're from the peak again. Yes. Okay. Thank you very much. Mr. Carpenter, we're fine. In the case he's taken into submission.

139 young men against you, Mr. Carpenter, when you're ready. May I please court? Thank you very much, Your Honor. Can a Carpenter appearing on behalf of Sharon Youngman? As youngman is an attorney who was appointed by the VA as a fiduciary. A fiduciary is defined both by statute and by VA regulation. The fiduciary's function by both statute and regulation is to receive benefits that are due and payable to a veteran during that veteran's life. The benefits at issue in this case were such benefits. Those benefits were not paid to the fiduciary. And you and the youngman would be a successor by the judiciary, a pointy correct? That would be correct. A previous one for the past due, $350,000 was created on the account of the previous curator, but then he paid off the file and correct reports and had to be replaced. Well, actually, I think chronologically there were problems with the other fiduciary, but because of the delay in getting the actual document published, which created the past due benefits, that happened in the transition between the two fiduciary. But the record shows that they 58 that there was estimated the a retro check of 350 served just there around the time of the previous person. And they said, don't issue that check until the successor's appointed. That's correct. And the reason that I say that is, is that there was a delay in publishing the actual rating decision that created that payment. But the bottom line was, yes, those payments were deemed to be payable to Mr. Richardson under. As it were, I understand the Kansas statute annotated on compensation, the curator. No compensation would be allowed to miss youngman on the corpus of the estate that was created on the account of the preceding curie. I'm reading you from. Yeah, that would probably be correct. So whatever, Ms. Youngman would be able to do, she would not be able to get any compensation associated with that $350,000. Not as it would have existed had it been paid. I think it would be a question for the district court to decide based upon the significant delay. And there's no, according to our previous opinion, what I understand, in case the veteran died without any spouse, children, or dependent parents. No qualifying survivors under $50. No, we, the veteran may have had some creditors. Actually has some errors, you're on her. He does have some errors, but they're not qualifying errors under $51.21. But so the money would not F.E. To the state. No, it would not. Because of the errors. Because of the estate. There is in a state that was opened in Wine.County by the errors of Mr. Richardson and the monies. It goes on to the federal rules if there were no possible errors under state law. And the F.E. would go to the state. Then if the money had been paid over in the young one, she'd be obligated to pay it back. Pay it right back. That would be correct. And and that is not what is Ms. Youngman going to do with this money, this 350 if she gets it. To pay it to the estate. To pay it to the estate. Correct. As she would have had the VA distributed the money as they indicated originally that they were intending to do. And as they caused her to get a $450,000 bond in order to receive that money. And all of those actions were taken and accomplished prior to Mr. Richardson's death. The question becomes here whether or not the board's dismissal of this appeal and the affirmance by the veterans court misinterprets the VA statute and regulations that apply to fiduciaries. Fiduciaries are assigned with the specific responsibility to receive. Well, I'm trying to get me because I couldn't tell from your brief what's going to happen in the money. You're now telling me that it's not a record that there are some errors here. No, you're I mean it is not a record, but yes, they're all. I mean, it's it's it's looked to me like it's the only hinge you had for your case. I understand your argument based on the regulations. And I'm you did present that argument below and the BVA should have ruled on that and in my judgment, they were wrong to say that they had no jurisdiction. But the CABC gave an implied interpretation of those regulations as your brief says. And they said, well, I'm sorry, those regulations can't mean what Mr. Carpenter says they mean because when the veteran dies, he dies and whoever standing in the shoes of the veteran has no better claim than the veteran. And this young one would be standing in the shoes. So that's the implied interpretation. That's correct. And what I think you're trying to tell me is the person that's getting jipped here are the errors. That's correct. This is not it's it's not a child is not a wife and it's not a dependent parent, but it's cousins or something like that. That's right. And if they're saying there's no way to get that money out of the federal government and into a probate court in Kansas, unless it passes through Mrs. Young. Mrs. Young. That's correct. Would have been helpful if you told me that in a brief. Well, unfortunately, that was the part of this case that was cut off by the B.A. Because they refused to entertain. But you could certainly have let us know that. I mean, on the face of the briefs, so I was asking what's Miss Young going to do with the money because she has to certify that she has applied the benefits for the best interest of the beneficiaries. She had duty to make that declaration. Right. And so I got to do something with that money other than just enjoy it. Well, that was my mistake, Your Honor. I the VA was informed. They have had contact with the estate and they refused the estate as they refused. So where's the hook? Where's the statute? Any authority to the VA to transfer money to Miss Youngland or and on behalf of the errors of the proceeding? There is no such hook, Your Honor, but I don't think such a hook is required. What is required? Maybe it is. Well, well, the plain reading of the fiduciary statute is to have someone to receive the VA benefits when the VA makes a determination and they had already made the determination that Mr. Richardson was not competent to send those monies to on his behalf. And they certified that Miss Youngland was that qualified person prior to his death. It was never between the past benefits and the accruing benefits because as of the day he died. Right. Miss Youngland could not receive a monthly benefit for him. That's correct. That's correct. That's correct. That's correct. That died with him. That's right. And what the VAVC is saying, they interpret the lump sum passed through the retro to be exactly the same. It dies too. That's right. And I believe Congress provided that the retro could go to three different places. It could go to children. It could go to a spouse or a dependent parents. That's correct. It didn't say anything about other errors. That's right. Right. And so in the silence of no other errors, why should the VA give the money to Miss Youngland to give to the probate court in Kansas for the errors? The federal law is supreme. And federal law has, as I understand it, what you're telling me now, excluded the errors. That's right. But the fact in this case were that these monies should have been transferred by the VA prior to his death by the internal directions of the VA, which they changed retroactively. The order of the inquisined on Miss Youngland's commission, why for any afternoon, I'm sorry. No, Your Honor, if you'll look at the record at page 60 on May 19, 2005, the VA Service Center Manager issued a certificate of legal capacity to receive and disperse benefits, designating Miss Youngman as Mr. Richardson's legal custodian. That's in the record at VA 60 for monthly. For the monthly. Right. But if you- Absolutely withhold all retro pay. So no authority to transfer the retro pay. That's page 60. Retro pay was on hold. Says right here. Yes, but I'm sorry, thank you. Okay, page 67. Okay. That's the one that's July 25, July 27, 05. Mr. Mr. the veteran died the next day. That's on page 67 and that's where the lump comes out. The retro comes out right there because the bond was pre- it was received. That's correct, Your Honor. So it's somewhere in, you know, as the close of business on the 27th and the veteran died the next day. I don't know what time- do we know the hour of death? I'm sorry, I do not recall. But my recollection- We're talking we're less than 24 hours. Yes, yes, yes, Your Honor. Your argument is by force of law the money went after the document at J.A. 67 was created. Yes, Your Honor, but the appointment of Ms. Youngman as the fiduciary entitled her to receive those benefits and the only thing that the VA was waiting on was what's reflected in the documents at- Sorry, the month. The month. That's right. Because she's, she's a new impact and she's got no authority to receive until the bonds in place. She has a title that she has no right to receive. That's correct, Your Honor. So nothing's happened until the late in the day, apparently, on the 27th of July. Well, why, why, it looks to me as if, and I haven't been able to sort this out entirely, maybe you've been over this, but it looks to me as if other provisions of 5502 other than A seem to address this collection of problems that arise when there's a lump sum of money and there's a fiduciary in the picture. For example, 502E deals with the problem. What you do if the money was achieved to the state, which is that the statute says, no, no, no, it's achieved, we get it. We'll keep it. Okay, thank you. I'm looking at D, which looks like it addresses perhaps a case such as this. I had not, like Judge Cudendor, I had not realized that your claim ultimately was for the benefit of the estate, but it looks as if that authorizes the secretary to withhold the payment and then to make such portion of the payment is necessary to take care of the dependence and those others that would be eligible under 5121, but otherwise not to pay out money, which would ultimately go to the estate. Is that not your reading of 5502D? Yes, Your Honor, but I believe that that is read in concert with 5121A when there are qualifying survivors under 5121A. In other words, it is where those two actually merge. In this case, it is my view that those do not merge. In fact, the veterans court noted that at no time as Ms. Youngman ever asserted that she qualifies under 5121A. Yes, but if 5502D deals with the problem, what do you do if you do have some 5121 qualifying beneficiaries, but then you have money left over or whatever, but this at all goes back to the Treasury. It would seem odd to say that that doesn't happen if you don't have any qualifying beneficiaries. Well, except that to me is the disconnect because if you have qualifying, they get the whole thing. That is where I was having a trial. For example, there is a burial expenses issue. In that setting, at least, it would sound like you would pay the burial expenses, the secretary that authorized a release for a thousand dollars and whatever, and then keep the rest. That would be correct. But if there don't happen to be burial expenses, then the secretary does not have the option of keeping it all. Well, I do not believe that they do, Your Honor, and that is why Ms. Youngman brought this appeal. She is in a position of having been appointed as a fiduciary and given this responsibility. Then the VA says that she should act in accordance with that responsibility. When she makes demand for that distribution, she was simply taking the appeal through the appellate process, got to the board and the board said, no appeal, appeal, this way. Yes, but I guess the question in my mind, it comes down to this. If you take all the statutes and regulations together, do they amount to telling us that the way that Congress wants these funds to be distributed is to the qualifying beneficiaries under 51-21 and if not back to the Treasury. And if that's the overall structure, then you lose, right? If that were the interpreted intent, that would be correct. The problem here is that there has been no such interpretation made by any court on that issue. Judge Castle below said, no, I'm not going to hear this and did not address that question. He said that this case was controlled by the disposition in Richardson because she could not qualify under 51-21A. I don't know. I mean, he says that the youngman fails to present any cognizable argument that these regulations entitled her to receive benefits when, as here, there is no longer an eligible beneficiary for who she might act. Let's take this up with the VA and we'll say we're about to have to answer these questions because we're repeating our concerns. Thank you. Brian, you see the problem with troubling us. What's the position of the VA? The position of the VA, your honor, is actually what Judge Bryson articulated earlier. That Congress has spoken to the situation and what occurs when there are accrued benefits that are doing unpaid at the time of the veteran's death is governed by Section 51-21. And under that statute, the benefits are paid to the eligible listed beneficiaries and then under Section A6 of Section 51-21, in all other cases, the VA may only pay as is necessary to reimburse the expenses of the last sickness and burial. Well, so that if this veteran had died one day later, then the money would have flowed to the remote areas without any debate. I don't know that it would take necessarily a day for the payment to process. I think that it was after the payment was processed and it was promptly processed. If the money that the benefits had been paid, then those would have gone on through to the fiduciaries and then on. Okay, can we agree on what would have happened, say, for example, if the veteran had lived for a month after July 27th date. If the veteran had lived for a month later, then Ms. Youngman would have received the retro check that we can assume that. And then the VA would have realized that the veteran had passed away and the VA has regulations for saying, well, we'd like some of the money, we'd like the money back if it would have cheated. Yes, if it would have cheated. Now, if indeed there was a living error, then under Kansas law, the 350 would not have been cheated, correct? That is my understanding. So that's how the chances are that the error was legitimate and all the rest, the error after probating what not would have enjoyed substantially the proceeds of the retro check. Yes. Okay. Now, under your interpretation, based on the 51-21, the castle, the vice-drug crisis, that Congress has made a decision that cousins in Kansas get disinherited. That's under Section 51-21 now. That's right. Those cousins are disinherited, not as much as our federal law. That is correct. And I think that would reflect the policy decision by Congress that the enumerated individuals that may take under Section 51-21 are the dependents. And those people that would be relying upon a veteran and so that Congress has made the policy judgment along the way that heirs under the law of whatever states may be. The acting system with the overall scheme that the veterans benefits are payable to a veteran and his dependents, not to a veteran and his relatives. That is correct, Your Honor. But I think we, while you're completely correct, we actually don't even need to reach in these issues because the court has already decided these issues and Richard Zinby-Neckelson in 2007. And in that case, Ms. Youngman brought suit attempting to substitute. And this court decided that Mr. Richard Zin's death extinguished his claim to the benefits. And therefore, his fiduciaries entitlement to those benefits. So claim preclusion bars this second suit based on that exact same set of facts. Ms. Youngman's attempts to distinguish Richard Zin really fall flat here. In her reply at one, Ms. Youngman argues that Richard Zin addressed only the estate's ability, not the fiduciaries' ability to compel payment. This court's decision at page 885, though, framed Ms. Youngman's argument as the fact that the Department of Veteran Affairs' prior recognition of hers as a fiduciary allowed her to compel payment of the same benefits. And the court also noted that in Richard Zin, Ms. Youngman argues that no other relief was available to her or the airs that law accepts substitution in Richard Zin. Nevertheless, we're back again with a second suit on the same set of facts and seeking to compel payment of the same benefits just now pointing to different regulations. Even if those regulations were relevant to this case, which they're not. The name of the petition was in trap for the only worry. It's not that it was necessarily a trap for the unwery, but there is an absolute obligation of a party that if they are coming to court for relief, they need to raise all of their grounds to release a single suit to prevent the success of litigation. Again, even if the entire suit is not barred, the issues at heart here have already been decided that Ms. Youngman is not someone that can take these benefits. She can't pursue a claim that is lapsed with Mr. Chair of Richard Zin's debt. And I think that goes back to what your Honor said earlier that a fiduciary cannot have a better claim than that of the individual that they are acting on behalf of. Well, let me explore that precise question a bit for it, with the suppose that we leave the estate and the airs aside, and suppose that Ms. Youngman herself has expenses. So, she had to get a large bond presumably that involves the expenditure of funds. I don't know whether those funds already have in some way been covered by payments from the VA or otherwise, but assume that they haven't. What's her recourse? Statutoryly and under the regulations. Is she just out of lockers? They're recourse for her to go to the secretary and say, pay me for the services that I rendered during my period leading up to and upon my appointment. Uh, Garren, that's a very fair question. I actually don't know the answer. If there is a provision for that, it seems like something that might be possible or there would always be the estate to make claims against if she believes she has incurred expenses on behalf of Mr. Richardson. There would potentially be other than the VA benefit. Or she clearly, she had to post a bond, she had to pay for that. I mean, so I assume that Youngman has some expenses, out of pocket expenses. Yes, she very well made. And I'm assuming that I'm assuming that the veteran had no money at all. And the cousin isn't responsible for the veteran's legal expenses. I don't know that it would be the case that Mr. Richardson had no money at all. His monthly benefits were being paid by that point had been being paid. It was just a lump sum that was still withheld at the time of death. But going back to the particular regulations that Miss Youngman points to here, they speak only to the authority of the VA to appoint a fiduciary. And absolutely, when a fiduciary is appointed under the very definition of fiduciary section 506, that fiduciary is appointed to receive benefits for the use and benefit of the veteran or other beneficiaries. Nothing in any of the language Miss Youngman has pointed to that's a fiduciary with an entitlement in their own right. Instead, it's always on behalf of the individual. So when there is no longer a fiduciary. You have to apply the benefits for the best interest of the benefit of the year. That's correct. So when there is no- That doesn't include taking care of a needy cousin. Of no, your honor. Instead, as I pointed out earlier, Congress spoke to this situation. We have doing unpaid accrued benefits and therefore this is a section 51-21 case. And Miss Youngman has really presented no argument to the contrary that would make this anything other than an accrued benefits case. But these are not the issues before us. Sorry, they don't. We have quite a fundamental policy issue as to what happens when the veteran dies and their unpaid funds. Whatever the source of the unpaid funds, we have a certain body of precedent which has dealt with it. This is another particular circumstance of funds that should have been paid retroactively over all this period. So we know there's a certain entitlement. I think these are the question of national policies, the best use of these funds. I haven't heard anyone argue that the best use is the remote relatives who were not dependent of the of the veteran. But rather a matter of straightforward administration of these complex statutes. Where are there so many hundreds of thousands or more of beneficiaries involved? Just have a straightforward rule. This again, the veteran lived it up a day or two. But I would totally different policy questions, I would think. So here we have the fortuita or whatever you call it of the time of death and its effect on the check that presumably wouldn't be drawn that afternoon. So where is the policy? It seems to me that well, straightforward policy would be just you're supposed to pay it, pay it. But there are other issues that I suppose come to the fore when the funds are large enough. But has the secretary taken a policy position or are you arguing whatever it is the answer is no? I believe the policy has been set by Congress, your honor, that if these benefits are paid, they become and the property of the estate, they have gone on to the veteran however if they are not paid, they are then governed by section 5121 and its definition of the truth benefits. That they are benefit, that veteran is entitled to at the time of their death under the existing ratings and decisions but that are due and unpaid. And instead those would go through section 5121. However, if the benefits had been paid, Congress has said those may continue on through to the estate. So it isn't the policy decision of the secretary, it's the clear language of the statute that governs here and the policy is set by Congress. If there are no further questions for these reasons and the reasons that are forth and are... You don't disagree that the Board of Veterans feels erudent saying they had no jurisdiction over Mr. Carpenter's argument based on the regulation. The government agreed below that the board had jurisdiction. However, the veterans court phrased its decision as even assuming that the parties are correct. It never actually made a decision on that particular error. Instead, the veterans court decided on grounds of prejudicial error and that Ms. Youngman was not entitled under these regulations that she had pointed to to these funds. And of course, the prejudicial error determination cannot be used for this court. And Mr. Carpenter didn't preserve the challenge on that. I do not believe so. We challenged the interpretation of the regulations. The implied interpretation yet. Any more questions? Thank you. Thank you, Anna. Please, the court. If we could go back to JA67. This is the document that Judge Clevver and I will discuss in one of the two, one at 60 and one at 67. The date of this document is July 27th, the date of four. 57? 67. This is the date before the death of Mr. Richardson. And under the remarks, it clearly indicates that the bond was received from the curator and all withheld benefits can be released to the curator. This was a disposition that was, as was in response to the hypothetical, had Mr. Richardson died several weeks later. I just, as I just here unfortunately, died very next day. The very next day, that's correct, Your Honor. And the question here becomes whether the VA gets to keep these funds because of the provisions of 51-21 or whether the VA is obligated under their appointment of Ms. Youngman and her qualification and her providing the bond and the VA having received the bond. Whether not the correct policy here is, is that you distribute that money as the regulations contemplate to the appointed fiduciary. And that was simply not done here and it was not done here because it was retroactively decided that based upon the death, this would be treated as an accrued benefit matter. This is not an accrued benefit matter. The VA directed what the outcome was supposed to be the day before he died. They simply can't unring that bell. And to try to convert this into a 51-21 action is simply unconscionable when compared to the fact that we're dealing with $350,000 worth of benefits that Mr. Richardson never received during his lot. And with all due respect, this is not about the disinheritance of the Second Cousins. This is about fundamental fairness to Mr. Richardson. Mr. Richardson had the rise to see. He was not deceased on July the 27th, your honor. He was alive and well on July the 27th and on July the 27th, the VA received the bond and directed that all funds were to be released. And then they changed their lives. For some period of time after that he would receive the bond. So the person, it's just clever to say, the person in Mr. Richardson's position, it seems to be, is never going to be prejudiced by the rule that the government is arguing for. It's the areas that are potentially subject to losing out. Well, yes, you're going to accept that that seems to me to beg the fundamental question that is at the heart of this action. The VA has conceded that the board was wrong. The board did not give Ms. President. Can you address the policy argument that you're ever sharing that? So this benefit system is set up to benefit the benefit of beneficiary and his dependence, dependence as they're defined. Cousins never get any money out of the system. So the question here is to say when they've been dealing with the past due payment, they said the Congress has decided that if you were in the qualifying line of takers, then even though the veteran himself wouldn't yet have the life the children over the dependent parents would get. But, Your Honor, that requires a claim. That refot requires affirmative action by the filing of a VA form to make a claim for accrued benefits. No such process was required because of the affirmative action of the VA the day before Mr. Richardson's death. And based upon that action, that action distributed required the distribution to the VA and court appointed fiduciary. When that was not done, that was done to the harm of the veteran who at the time was still alive. Do you happen to know if the if the if this young man has any up to 10? No, she does not. No, she's been paid for the bond and everything. As the VA suggested, there were a past due benefit in the regular monthly benefits that that did with health and the transition and those were made available and the expenses have been paid down. I asked a point of history to pick a Kansas history. Yes. Once about time there was a law firm of young men and carpenter. Yes, there was. The peak is still exists. No, it's down just young. But they still exist. And that was Derek Carpenter? That's correct. Is that a relative? No, but he did practice with me for a time. Thank you very much. It's just a matter of history. Thank you very much. We're from the peak again. Yes. Okay. Thank you very much. Mr. Carpenter, we're fine. In the case he's taken into submission