WOLFE v. MCDONOUGH — Oral Argument — Supreme Court Petition Tracker

0:00 Judge Prost 2-3-1-7, Wolf versus McDonough, Mr. Hoffman, whenever you're ready.

0:10 Appellant Attorney (Harold Hamilton Hoffman, Iii) May it please the court.

0:12 The veteran, Ronnie Wolf, was fraudulently induced into a divorce from a person he was never married to.

0:19 He died a few months later.

0:21 That divorce prevented his wife of 10 years, Luann Wolf, from being recognized as his eligible spouse.

0:28 The fraud was proven in an Oklahoma court, but a few months after the board's decision.

0:33 The VA and the Veterans Court know that Mrs. Wolf was entitled to benefits five years before VA started paying them.

0:40 But because of the fraud, Mrs. Wolf lost $60,000 in benefits she is entitled to.

0:46 Judge Prost Just to be going forward, though, after that period, she is collecting her benefits now, right?

0:53 Appellant Attorney (Harold Hamilton Hoffman, Iii) Yes, Your Honor.

0:54 We're talking about a gap of five years, but once the fraud was proven, she did move to reopen her claim.

1:00 And the date that she moved to reopen her claim, she did start receiving benefits.

1:05 Judge Reyna Did Rhonda Matthews receive a payment social?

1:11 Appellant Attorney (Harold Hamilton Hoffman, Iii) Not that I've ever seen, Your Honor.

1:13 And I do have Mr. James Ronnie Wolf's full record, and I've never seen any evidence that she's been paid any VA benefits.

1:22 Judge Reyna Okay.

1:25 Appellant Attorney (Harold Hamilton Hoffman, Iii) The VA and the Veterans Court know the board's denial was based on fraud.

1:29 And this is about whether a fraud against a veteran and his wife should allow the VA to continue denying benefits

1:36 that the claimant is entitled to.

1:37 The VA and the Veterans Court both misinterpreted the board's rules on reconsideration

1:44 so that the board can only reconsider grants based on fraud, but not denials.

1:50 And that is arbitrary and capricious.

1:52 The VA made two choices.

1:54 First...

1:55 Judge Stoll Counsel, this is a question I stole.

1:56 As I understand it, I think at least one of your main arguments is that the agency's implementation of the statute

2:07 and its regulation is not a violation of the VA's rules.

2:08 The VA's regulation is arbitrary because it allows for correction of fraud

2:13 where the veteran, where the board relied on fraudulent material submitted by the veteran

2:22 in order to grant benefits.

2:24 Is that right?

2:25 And you say that there should be a likewise provision for the denial of benefits.

2:30 Otherwise, the agency's regulation is arbitrary.

2:34 Is that your main position?

2:37 Appellant Attorney (Harold Hamilton Hoffman, Iii) Yes, Your Honor.

2:38 And the reason it's arbitrary is because of the two choices.

2:42 First choice was that the board or the VA, excuse me,

2:46 decided they're going to reconsider some decisions that are based on fraud.

2:52 But then they made a second choice.

2:53 And that second choice was that, and this is what they can't provide a rational explanation for,

2:59 is that they chose to reconsider only grants, but not denials.

3:03 And they can't provide a rational explanation for that

3:05 because the only explanation for making that choice,

3:09 was the win against otherwise entitled veterans

3:11 that Congress intended to be paid benefits.

3:14 Judge Prost Well, Mr. Hoffman, let me...

3:17 Go ahead.

3:18 Sorry.

3:19 Go ahead.

3:20 Oh, no, no, you go ahead.

3:21 Fine.

3:22 Okay.

3:23 I guess, even if there were arguably a need for symmetry here,

3:30 if that's the appropriate word,

3:34 she gets caught if the government, you get reconsideration,

3:39 if there's...

3:40 If there's been fraud on her part against the government,

3:42 and your argument for symmetry should be,

3:45 wouldn't that be that if the government commits fraud against her,

3:50 then she would be entitled to benefits?

3:52 And while that's not provided for in the regulation,

3:56 that would be covered arguably under due process or Cushman

4:01 or that sort of thing, too.

4:03 So it seems to me there is some symmetry in the system.

4:06 It's just not the kind of symmetry you would want,

4:09 which starts implicating fraud by third party.

4:14 So am I understanding it correctly?

4:17 Appellant Attorney (Harold Hamilton Hoffman, Iii) Yes, Your Honor.

4:18 I would go a little further and say it's not symmetry that's so important.

4:23 It's that Congress wants the VA to fix any of its decisions based on fraud,

4:29 third party or not.

4:30 And you can see that there's a lot of statutes that Congress says,

4:34 fix fraud, fix, grant the fraud.

4:37 And you're right, it would be under due process.

4:40 And...

4:40 And if it was a VA employee that committed fraud against Mrs. Wolfe

4:44 that caused her board denial,

4:45 she would have been able to get under Rule 904,

4:48 which is now Rule 1000.

4:50 They would have vacated her board decision for VA fraud.

4:52 Judge Prost Right, right.

4:53 So the circumstance we're talking about here for the, you know,

4:58 your argument that there is, it's arbitrary,

5:01 involves the government then having to go out

5:06 and investigate allegations of fraud,

5:10 by the claimant involving the third party.

5:14 And that, in my experience,

5:17 significantly expands the scope of where the government would need to go

5:23 in terms of adjudicating these benefits.

5:27 Right?

5:28 I mean, you see my concern here.

5:30 Appellant Attorney (Harold Hamilton Hoffman, Iii) I see your concern, Your Honor.

5:32 And actually, the government doesn't have to do anything more than it already does.

5:36 38 U.S.C. 5107 says it is the claimant's responsibility,

5:40 to present and substantiate their claim.

5:42 If a claimant's going to allege fraud,

5:44 the claimant better be ready to prove that to the board.

5:48 And also, the VA is already dealing...

5:51 Judge Prost In this case, it seems more straightforward than most.

5:55 But you're right, she has the...

5:57 But in your view, in this pro-claimant system,

6:02 wouldn't the government have to...

6:04 I don't know how it would adjudicate claims of fraud,

6:08 dealing with third parties that it has no jurisdiction,

6:11 no jurisdiction over, or no authority over.

6:13 This case happens, I think to me,

6:15 maybe an unusual case where you've got a paper record.

6:22 Appellant Attorney (Harold Hamilton Hoffman, Iii) Yes, Your Honor.

6:23 Now, in this case, it's a little different

6:25 because the VA has already recognized that it was fraud

6:28 and granted her benefits once they saw the fraudulent evidence,

6:31 just not the five years that she's missing.

6:33 The VA already has a system in which it deals with entities

6:38 outside of itself and outside of the claimant.

6:41 There's a whole system for claims...

6:43 There's a whole system for claims that are contested.

6:45 For instance, it's not terribly uncommon where a veteran passes away

6:50 and we find out that he or she has three or four spouses.

6:55 It's not uncommon that someone has to prove

6:59 that they are the child of a veteran.

7:00 The VA is equipped to do this, and while there's no doubt

7:04 it can be a little bit more difficult than you're straight up,

7:08 hey, this person is married, no fraud involved.

7:12 You know, Congress...

7:13 Congress didn't limit the VA's inquiries into things

7:17 by just how hard it is.

7:19 There are, of course, limitations based on efficiency,

7:22 but here, they're not going to have to do too much.

7:26 They don't even have to go get private records

7:28 that would prove the fraud unless the claimant told the VA,

7:31 this is where you can get the records.

7:33 Even the duty to assist is only going to apply

7:35 if the claimant does their part to present and substantiate

7:40 their claim under 38 U.S.C. 5107.

7:45 Furthermore, the VA is not going to be able to do that.

7:46 The VA has also had situations...

7:49 Congress has already had the VA...

7:51 Judge Prost At that point, I actually hadn't even considered it.

7:53 So if we said you were correct and fraud by third party

8:00 was something the government had to recognize,

8:02 then in connection with the petitioner pursuing that claim,

8:08 an argument, an allegation that someone committed fraud

8:11 that precluded he or she from getting the benefits,

8:14 the government would have to assist the claimant in that pursuit?

8:18 Appellant Attorney (Harold Hamilton Hoffman, Iii) I think if the...

8:22 I do think that if they made it during the original claim,

8:26 I'm not so sure if that would happen,

8:29 if the duty to assist would attach,

8:31 for instance, in a motion for reconsideration,

8:33 which is...

8:36 You can recognize a motion for reconsideration

8:38 as something that it's really on the claimant

8:40 to prove to the court or to the board

8:42 why they need to reconsider.

8:43 Judge Reyna What if the motion could be granted under one subsection,

8:47 but not on the subsection that the motion claims as the basis?

8:56 Appellant Attorney (Harold Hamilton Hoffman, Iii) Are you referring to the dissent, Your Honor?

9:01 Judge Reyna Yes.

9:03 Appellant Attorney (Harold Hamilton Hoffman, Iii) The...

9:03 So I think if...

9:06 Because veterans are not required to plead too specifically,

9:10 and that would be...

9:11 I mean, Mrs. Wolf isn't going to know the difference

9:13 between Section 904 and Section 1000.

9:15 There's no way.

9:17 There is...

9:18 I think that the board should go with whatever section.

9:21 Section 904 is the most favorable for the veteran.

9:23 However, in this case,

9:24 and I love what the dissent said.

9:26 The dissent recognizes it's reprehensible.

9:27 The dissent says that the VA has to fix this somehow.

9:31 However, Section 904,

9:33 its fraud provision is also only for grants of benefits.

9:36 And due process,

9:37 we have a problem because it's a third party.

9:40 The third party can't really violate

9:42 Mrs. Wolf's due process rights.

9:45 Judge Prost Well, I agree with that, Mr. Kevill.

9:48 But I think,

9:49 and this may be part of what Judge Reyna's inquiry was about,

9:54 Subsection talks about

9:56 upon allegation of obvious error of fact or law.

10:00 I mean, I know this wasn't pressed as a basis,

10:04 but it seems like maybe it should have been.

10:09 I mean, that this provision is the one

10:11 that might take care of the egregious cases

10:14 where at some point...

10:17 This doesn't have a time limit.

10:18 So if it becomes...

10:20 If it becomes clear

10:21 in enough time to file for reconsideration

10:24 that there has been an obvious error or fact in law,

10:29 it seems like Subsection would be the one to,

10:32 you know, run the truck through.

10:35 And I know that wasn't raised here,

10:38 but why am I wrong about that?

10:43 Appellant Attorney (Harold Hamilton Hoffman, Iii) Subsection , Your Honor, the way...

10:44 And it's hard to tell

10:45 because there's just very little case law on this.

10:48 But Subsection ,

10:49 the way VA interprets it,

10:50 is to be more like a Q claim.

10:52 Now, there are regulations that say

10:54 you can't treat a motion for reconsideration

10:55 like a Q claim,

10:57 but they're only talking about procedurally.

10:59 Ultimately, Subsection .

11:01 Judge Reyna But that is not a Q claim.

11:04 It just says upon the allegation

11:06 of obvious error in fact or law.

11:09 And the standard of proof on a Q claim

11:11 is much more rigorous.

11:13 I'm wondering if you file a motion under C,

11:16 and the VA is looking at this,

11:18 and they're looking at not an allowance,

11:21 but they go, there's a denial here.

11:22 And there's obviously, you know,

11:24 something very wrong has occurred here.

11:27 We have this state finding of fraud,

11:31 and we ourselves have already decided

11:33 that she was qualified all along.

11:35 Then why could not...

11:36 Why should not the VA say,

11:38 we're going to go ahead and review this under A?

11:43 Appellant Attorney (Harold Hamilton Hoffman, Iii) If they're going to interpret that regulation

11:45 how it's written, Your Honor,

11:46 I would agree with you.

11:48 I think that they should reconsider it under A also.

11:51 And I believe...

11:52 Judge Prost Well, that presents a problem, counsel, does it not,

11:55 that she was represented,

11:57 and this was never pressed or raised below.

12:01 So don't you think that under these...

12:05 I mean, you've pressed C valiantly.

12:07 You know, you've done a good job

12:09 making whatever argument you could come up with.

12:11 But is it up to the government?

12:14 I mean, you're the one that pressed the claim.

12:16 Even from, you know,

12:17 is it up to...

12:18 The government to come up with different provisions

12:21 in order you allow it

12:22 when you haven't made that argument?

12:24 Appellant Attorney (Harold Hamilton Hoffman, Iii) No, Your Honor.

12:25 She did not file under A, B, or C.

12:28 She just filed a motion for reconsideration.

12:31 The argument A,

12:33 the reason I've chosen not to present it under A

12:35 is because the VA does treat it like a Q claim,

12:39 and its authority for it is under Q.

12:41 Now, should it be treated like a Q claim?

12:43 We didn't argue that it shouldn't be.

12:46 But they are in their...

12:48 Because they've talked about not reviewing records

12:51 after the Board decision.

12:53 It's supposed to be not over plowed ground.

12:59 And that is why we chose...

13:01 Judge Prost How can it not involve records

13:02 where it says an allegation of an obvious error of fact?

13:08 How would that not implicate records?

13:12 So...

13:15 Appellant Attorney (Harold Hamilton Hoffman, Iii) Because, Your Honor,

13:17 it wouldn't be an obvious error of fact

13:19 if the record stops at the day they made the Board decision.

13:22 Judge Prost I know we're in reversal...

13:24 We're role reversal here, right?

13:26 You're making arguments about

13:27 how you pay for the government,

13:28 so maybe we...

13:29 You know, I ought to allow that.

13:31 But I just...

13:31 I do think that

13:33 I didn't see this argument raised.

13:36 It hasn't been teased out.

13:38 The government hasn't had a chance, I guess,

13:40 to give its position at all,

13:44 as far as I can tell.

13:45 Am I right about that?

13:48 Judge Reyna Yes, Your Honor.

13:49 Okay, so then my next question to you is,

13:52 would you say that this argument has been forfeited?

13:56 Can she go back down and just raise it on A?

14:01 Appellant Attorney (Harold Hamilton Hoffman, Iii) No, Your Honor.

14:02 She raised just the motion for reconsideration.

14:06 She...

14:06 I don't think it should be forfeited.

14:09 I'm going to point...

14:10 Justice Scalia at one point said

14:13 that an argument not made by an appellant

14:16 doesn't mean that the argument is necessarily waived.

14:18 That is the court's discretion.

14:21 Judge Reyna Okay, but there is a difference

14:22 between waiver and forfeiture.

14:25 And a waiver

14:27 is where you have an intentional abandonment,

14:31 or there's intent involved

14:32 to not move forward a claim.

14:38 Whereas with a forfeiture,

14:40 we don't have that.

14:42 But anyway, it just seems to me that

14:44 A would have been a way

14:48 to proceed on this particular claim

14:51 and maybe even succeed at it.

14:53 And I'm amazed that

14:55 A was not relied on

14:57 and that you don't make that argument.

15:01 And to be quite frank,

15:02 I'm trying to see here

15:06 if maybe A is still available

15:10 in order to correct what's clearly

15:13 an obvious error of fact or law.

15:15 I mean, those are the words.

15:16 It doesn't say Q.

15:18 We know...

15:20 I'm dubious whether A is premised

15:25 on a Q standard of proof,

15:29 which is pretty rigorous.

15:33 So...

15:34 Judge Prost Well, could I just follow up

15:36 on Judge Reyna's question?

15:37 I'm not sure you gave us

15:39 or him any clarification

15:41 as to why there...

15:43 Is there a mechanism

15:44 in which she could raise it at this point?

15:47 Can she amend her request

15:49 for reconsideration?

15:50 Or is this just,

15:51 you know, the horse left the barn

15:54 and there's nothing she can do

15:56 to clarify or to amend

15:59 the current filings

16:01 to include A and compel

16:03 at least an adjudication of that?

16:06 Obviously, it would have to go back

16:08 to the board and the CAVC

16:09 for them to resolve that.

16:11 But are you clear?

16:13 You know, you presumably know

16:14 the procedures better than I.

16:16 Are you clear that there's no way

16:18 that she can amend or change

16:19 the pending motion to bring that in?

16:25 Appellant Attorney (Harold Hamilton Hoffman, Iii) Her motion, Your Honor,

16:26 never specified A, B, or C.

16:29 And I'm going to...

16:29 I will...

16:30 Just real quick,

16:31 I'm going to read from the appendix,

16:32 page 32,

16:33 about what the board said about A.

16:35 You have alleged, in essence,

16:37 that the board decision

16:37 contains an obvious error of factor law.

16:40 Obvious, parentheses,

16:41 or clear and mistakable error

16:42 is a very specific

16:43 and rare kind of error.

16:45 That's how the VA treats A,

16:47 as if it's Q.

16:49 They go forward and talk about C,

16:51 and they ended up denying...

16:53 Judge Prost I'm sorry.

16:53 I just want to follow

16:53 what you're saying.

16:54 And I just found appendix 32.

16:57 So can you tell us

16:58 where on the page

16:59 you're reading from?

17:00 Appellant Attorney (Harold Hamilton Hoffman, Iii) Yes.

17:01 Third paragraph down.

17:02 So last paragraph on page 32.

17:04 Uh-huh.

17:07 And they go on,

17:08 and I'm starting with...

17:09 I'm just going to start

17:10 at the beginning.

17:10 The chairman will order reconsideration

17:13 upon the ground of obvious error

17:15 of factor law,

17:16 only when it's shown

17:17 that the board committed an error

17:18 in its decision,

17:18 which, if corrected,

17:19 would change the outcome of the appeal.

17:20 Obvious, and then in parentheses,

17:22 or clear and mistakable error

17:23 is a very specific...

17:24 And from that point,

17:25 they talk about clear

17:26 and mistakable error

17:26 and the rules behind

17:27 clear and mistakable error.

17:28 Judge Prost But I don't understand.

17:30 I mean, even if that...

17:32 Even assuming that,

17:33 why this wouldn't satisfy

17:36 clear and unmistakable error?

17:39 A lot of allegations of fraud

17:41 by third parties might not,

17:43 but here you've got,

17:44 you know, legal documentation.

17:46 So where it says

17:48 the alleged errors

17:49 must be described

17:50 with specificity

17:51 and persuasive reasons

17:53 must be given

17:54 as to why they were

17:55 and why the result

17:56 would have been

17:57 manifestly different

17:57 for the alleged error.

17:59 I don't see why that's

18:00 such a huge hurdle

18:00 for you, necessarily.

18:02 I'm not doing fact-finding

18:03 here on appeal.

18:04 I'm just making the observation.

18:06 Appellant Attorney (Harold Hamilton Hoffman, Iii) Yeah, because the records

18:08 of the fraud came

18:09 after the board's decision,

18:11 and so they wouldn't be considered

18:12 when they were deciding

18:13 if there was an obvious error.

18:16 That's her problem.

18:17 If her records

18:19 were in the record

18:21 at the time the board

18:22 made the decision,

18:23 if the proof of fraud was there,

18:24 then I think we would

18:26 be arguing this

18:27 under Rule 1000A

18:28 and Rule 1000C.

18:30 But since the records

18:31 Judge Reyna weren't there...

18:32 If that's the case,

18:33 if that's the case,

18:34 then why can't you

18:35 refile for reconsideration

18:37 on the basis

18:38 of newly found evidence?

18:40 Appellant Attorney (Harold Hamilton Hoffman, Iii) Because newly found evidence

18:42 has to be

18:42 service department records,

18:44 Your Honor, under B,

18:46 and Q doesn't allow

18:48 newly found service

18:49 or newly found records whatsoever,

18:51 so 1000A wouldn't work

18:52 in that regard,

18:53 and 1000B can't work

18:55 because these aren't

18:55 service records.

18:56 This is an Oklahoma State

18:57 Divorce Decree

18:58 and Marriage License.

19:01 Judge Stoll Counsel,

19:02 there's a separate regulation

19:06 related to Q, right?

19:10 Appellant Attorney (Harold Hamilton Hoffman, Iii) Yes, there is.

19:11 There's several.

19:13 Judge Stoll Okay, right.

19:14 And so your view

19:16 is that the Statute 7103,

19:19 the title of it

19:20 is Reconsideration,

19:22 correction of obvious errors,

19:24 and your position

19:25 is that the agency,

19:27 when it talks about

19:28 obvious errors,

19:29 and the regulation,

19:30 they have equated

19:30 that to Q.

19:31 What other cases

19:33 do you have

19:33 to support that?

19:34 Any?

19:35 Or is it just

19:36 what they said

19:36 in this particular decision?

19:40 Appellant Attorney (Harold Hamilton Hoffman, Iii) Let me look real quick,

19:41 Your Honor.

19:46 I think the case

19:48 would be Cerullo v. Derwinski,

19:51 one VET app 195.

19:55 Actually, it might be

19:56 a lot of these,

19:57 and it might just be

19:58 that they were discussing it,

19:59 and I'd have to go

20:00 through the cases,

20:01 and I'd be happy

20:01 to look at them

20:02 and submit an answer later

20:04 if you'd like,

20:05 rather than start

20:06 piling through these.

20:08 Judge Stoll I'm just trying

20:09 to understand the position.

20:12 So you're saying

20:13 that before the Veterans Court

20:17 section and before the Board

20:20 that Section A was argued,

20:23 but that it wasn't argued

20:25 on appeal

20:26 because of your understanding

20:28 that it only allowed

20:31 for Q,

20:32 and you didn't think

20:33 Q was satisfied here.

20:34 Do I understand that correctly?

20:37 Appellant Attorney (Harold Hamilton Hoffman, Iii) Yes, Your Honor.

20:37 There's that,

20:38 and I also believe

20:40 that the 7103 has to,

20:45 and Rule 1000

20:45 has to consider

20:46 all types of fraud.

20:48 I don't think

20:48 that there's a rational explanation

20:50 for it to consider

20:51 one type of fraud

20:52 but not the other

20:53 when you're giving up nothing

20:54 by considering denials

20:56 due to fraud.

20:56 The VA would still protect

20:58 the public this.

20:59 Better present a picture

21:01 of it.

21:01 Judge Prost Mr. Hoffman,

21:02 this is Judge Probst.

21:03 Just going back

21:05 to the point

21:06 about the reasons

21:07 that it wasn't raised

21:08 and what it was,

21:10 I mean,

21:10 you could have challenged,

21:12 you should have challenged

21:13 the VA's interpretation

21:15 of A rather than here.

21:18 You are challenging.

21:19 You're challenging

21:20 the regs here.

21:21 So it wasn't like

21:23 you were shy,

21:24 as you should not be

21:25 as the good advocate you are,

21:27 to challenge

21:28 what the VA did.

21:30 So why didn't we

21:31 do that?

21:31 the same would have applied

21:32 for the opportunity

21:34 if you just agree,

21:35 if you're correct,

21:36 there's a Q standard

21:39 and it's too high,

21:40 it should,

21:41 it's too high a standard.

21:42 That could have been challenged

21:44 just as you're making

21:45 the challenge under C,

21:46 right?

21:49 Appellant Attorney (Harold Hamilton Hoffman, Iii) Yes, Your Honor.

21:50 But I will say,

21:52 like,

21:53 A makes a lot of sense

21:55 drafted and interpreted

21:57 as Q,

21:58 as Q,

21:59 in part because

22:00 there are times

22:01 Congress told the VA

22:02 that it wants

22:03 to consider

22:03 and reconsider its decisions

22:05 and it talks about

22:06 relief from VA

22:07 administrative errors

22:08 under 38 U.S.C. 503.

22:10 It talks about Q

22:11 in 78 U.S.C.,

22:13 7111, 5109A.

22:15 It talks about reconsideration

22:16 in 7103.

22:18 And then there's

22:19 the new material

22:20 service records.

22:21 And that's a lot

22:22 of what Rule 1000 does.

22:24 Rule 1000 compiles

22:25 what Congress

22:25 has already made clear.

22:26 And Congress

22:27 has never really asked

22:29 for the VA

22:29 to just look

22:30 at new records

22:31 that aren't from the service

22:32 that may...

22:33 Judge Reyna The question was this.

22:34 You were reading,

22:35 Counselor,

22:37 different parts

22:38 of the regulation

22:39 and all

22:40 where Q is referenced.

22:43 But I don't see

22:44 Q referenced here

22:45 under A.

22:46 It doesn't say that.

22:48 It doesn't even say proof.

22:50 It says,

22:50 upon allegation

22:52 of obvious error

22:53 of fact in law.

22:54 And throughout VA law,

22:56 Q is one of the most

22:57 rigorous

23:00 standards

23:01 that we deal with.

23:03 So,

23:06 Appellant Attorney (Harold Hamilton Hoffman, Iii) I agree,

23:08 Your Honor.

23:08 And I don't know

23:09 if you heard

23:10 what I was pointing out

23:11 was these provisions

23:14 in Rule 1000,

23:15 they're not just

23:16 made up

23:17 by the VA.

23:18 They come from

23:19 what they have gleaned

23:20 as Congress's intent.

23:22 And the obvious error,

23:24 if you look at it

23:25 as Q,

23:25 they're...

23:26 Judge Reyna Okay.

23:26 I understand

23:28 all that.

23:29 Let me ask you

23:29 a question.

23:32 In your view,

23:33 what's the track

23:35 that...

23:36 What's the path

23:37 available

23:37 to the VA

23:37 or available

23:37 to your client

23:38 to get consideration

23:41 under 20.1001A?

23:46 Appellant Attorney (Harold Hamilton Hoffman, Iii) I think that

23:51 the Veterans Court

23:53 would have to hold

23:55 that the Board

23:57 has misinterpreted

23:59 Rule 1000

24:01 so that

24:02 A,

24:04 is not about Q claims,

24:06 but a Veteran

24:07 can just submit

24:08 whatever evidence

24:10 that doesn't fit

24:10 under B and C,

24:11 and the Board

24:12 has to reconsider.

24:18 I don't know

24:19 how else it would be.

24:20 It would have to be

24:20 all evidence,

24:21 and if we do that,

24:22 then I don't know

24:22 what the point

24:23 of a new and material

24:24 evidence claim would be.

24:26 There is a point

24:27 where the claimant's

24:28 responsibility

24:30 has to come in,

24:32 and part of that point

24:33 is going to be

24:35 Q claims.

24:35 There's a reason

24:36 why you can't just

24:37 submit new evidence

24:37 that gets...

24:38 No, it's favorable.

24:39 You submit new evidence

24:39 that no one's seen.

24:40 You get to reopen

24:41 your claim,

24:42 and that's great,

24:43 but you don't get

24:44 the benefit

24:44 of an early effective date.

24:46 Judge Reyna I understand that.

24:47 Counselor,

24:48 arguing in favor

24:49 of application of Q,

24:51 I don't think

24:51 that helps you.

24:54 It doesn't,

24:55 Your Honor.

24:56 No.

24:56 No, it doesn't.

24:57 So I'm seeking a way out.

24:59 I'm seeking a...

25:00 And why am I doing this?

25:02 I mean,

25:02 because I see

25:03 basically here

25:04 an injustice

25:05 that's contrary

25:06 to VA law

25:08 as a whole.

25:10 I mean,

25:10 she was entitled

25:12 to these benefits.

25:12 There's been

25:13 a fraud perpetrator.

25:15 There's an obvious

25:17 area of fact here,

25:20 and it's obvious

25:21 because a court of law

25:22 has rendered an opinion

25:24 that sets off the fraud.

25:29 How do you get back in?

25:33 Appellant Attorney (Harold Hamilton Hoffman, Iii) And by back in,

25:35 do you mean arguing

25:36 1,000-A?

25:38 Judge Reyna How do you get...

25:38 Appellant Attorney (Harold Hamilton Hoffman, Iii) Yes.

25:40 The veteran system

25:42 is so friendly

25:42 that it will...

25:44 You can just submit evidence

25:45 after your board decision,

25:47 and then the board

25:47 will reconsider it.

25:50 I mean,

25:52 maybe there's

25:53 some level of evidence,

25:54 but those levels

25:54 of evidence,

25:55 I think,

25:55 are found in B and C,

25:57 but your interpretation

25:59 of A would be

26:00 any evidence

26:02 that proves

26:03 an obvious error

26:04 in fact or law,

26:05 which is

26:07 what new

26:08 and material claims

26:08 do also.

26:12 If we could go back

26:13 on earlier effective dates

26:14 with new and material claims,

26:15 I'd be quite happy also.

26:18 And I mean,

26:19 that would have to be

26:20 what it is.

26:21 All evidence that proves

26:23 that the board's decision

26:24 was wrong,

26:24 obviously,

26:25 can be used

26:27 to get an earlier

26:28 effective date

26:28 and have the board

26:29 reconsider its claim

26:30 or its decision.

26:32 But I don't think

26:33 we need to go there

26:33 because we have

26:35 fraudulent evidence

26:36 that influences

26:37 its decision.

26:38 Judge Prost And we're back

26:39 full circle

26:40 to your argument,

26:41 and actually,

26:42 you've been pretty persuasive,

26:44 at least speaking for myself,

26:45 on the problems

26:47 with subsection A.

26:48 So we're left with C,

26:50 and again,

26:52 I just think

26:53 it would be

26:55 a pretty onerous burden

26:58 on the government.

26:59 I don't,

27:00 I'm still not seeing

27:01 the symmetry.

27:01 So if you want to say

27:02 one thing about that,

27:03 if the government

27:05 had committed fraud

27:06 on her,

27:06 which just allows

27:07 the benefits,

27:08 she'd clearly have

27:09 a right to have that

27:11 re-adjudicated

27:11 and adjudicated,

27:13 right?

27:14 So you're just

27:15 in a circumstance

27:16 where there's

27:17 some allegation

27:18 of third parties

27:21 fraud,

27:22 like,

27:23 you know,

27:23 my neighbor

27:25 stole my records

27:26 and this was,

27:28 this record

27:28 was included in that,

27:30 or something like that,

27:31 right?

27:31 I mean,

27:32 the government

27:32 would have to

27:33 get involved

27:34 in a much larger universe

27:37 than it does presently

27:39 or under any

27:39 other circumstance.

27:41 Appellant Attorney (Harold Hamilton Hoffman, Iii) I don't,

27:43 I don't think

27:44 it would have to get

27:45 to a much larger universe.

27:46 I think it's already

27:47 in that universe

27:47 when it's dealing

27:48 with contested claims.

27:50 It's already

27:50 in the universe of dealing

27:52 with third party,

27:52 not always malfeasance,

27:54 but when it,

27:55 when it will reconsider

27:56 based on new

27:57 DOD records,

27:58 and I want,

27:59 I want to turn

27:59 real quick,

28:00 and I am way over time,

28:02 but just real quick,

28:03 there,

28:03 this court had a decision

28:04 come out last week

28:05 about a third party

28:06 that caused someone

28:08 to lose decades

28:09 of benefits,

28:10 and that was

28:11 in Taylor,

28:11 and Taylor was just,

28:13 it was just published,

28:14 I think,

28:15 Tuesday or Wednesday

28:16 last week,

28:17 and we just read it

28:18 two days ago.

28:20 Congress in Taylor,

28:21 the court held,

28:22 that when Congress

28:22 authorized payment

28:23 to a veteran,

28:23 and the claimant is only

28:25 asking for what Congress

28:26 authorized,

28:27 this is Mrs. Wolf

28:28 in both instances,

28:29 and the claimant could not

28:30 get those authorized funds

28:31 because of a third party,

28:33 also Mrs. Wolf,

28:33 and the impediment

28:34 to receiving the funds

28:35 was not the VA,

28:36 also Mrs. Wolf,

28:37 then the Veterans Court

28:38 should equitably

28:39 have stopped the VA

28:39 from denying a veteran

28:40 an early effective date.

28:41 Now,

28:41 we're not necessarily

28:43 asking for equitable stoppel,

28:44 however,

28:45 I would say that

28:45 if the court doesn't agree

28:46 with our arguments

28:47 about statutory interpretation

28:49 or regulatory interpretation,

28:52 the case should still

28:52 be remanded

28:53 to the Veterans Court

28:53 to determine whether

28:54 equitable stoppel

28:55 under Taylor

28:56 is warranted,

28:57 but the Taylor court's reasoning

28:59 is exactly the same

29:00 as Mrs. Wolf's reasoning.

29:01 This is someone Congress

29:02 wants to communicate.

29:04 Judge Prost Yeah,

29:04 we are very familiar

29:05 with the Taylor case,

29:06 so I appreciate that,

29:08 but we're way beyond

29:08 our time,

29:09 so why don't we turn

29:10 to Ms. Akers

29:11 and we'll research

29:12 some of your rebuttals.

29:13 All right,

29:14 thank you.

29:17 Appellee Attorney (Ashley Akers) Thank you,

29:17 Your Honor,

29:18 and may it please the court.

29:19 I'll start with

29:20 the court's inquiry

29:22 as to subsection

29:24 A,

29:24 and I do agree

29:25 with Mr. Hoffman

29:26 that that's not

29:27 applicable here.

29:28 As an initial matter,

29:29 we believe that

29:30 Ms. Wolf

29:31 has waived,

29:32 intentionally abandoned

29:34 this claim,

29:35 and I would point,

29:35 Your Honors,

29:36 to page 14

29:37 of the reply brief

29:38 which says that.

29:40 Second,

29:40 I think to remedy

29:41 the court's concerns,

29:43 the board did address

29:44 subsection A,

29:46 and...

29:47 Had the filing,

29:47 Judge Reyna Counselor,

29:48 had the filing

29:49 originally been made

29:50 under section A,

29:51 would this

29:53 have gone

29:54 forward,

29:54 or are you saying

29:55 that A does not apply

29:56 because it was waived

29:57 or forfeited,

29:58 rather?

30:00 Appellee Attorney (Ashley Akers) The waiver argument,

30:01 Your Honor,

30:02 is to

30:03 this court's review

30:04 of whether

30:05 the board

30:06 or the Veterans Court

30:07 erred

30:08 by not allowing

30:09 reconsideration

30:10 under A,

30:10 and to Your Honor's

30:11 other point,

30:13 our argument here

30:14 is that subsection A

30:15 does not apply

30:16 to Ms. Wolf's

30:17 circumstances,

30:18 and the reason

30:20 for that

30:20 is because

30:21 the challenge

30:22 here

30:23 by Ms. Wolf

30:24 is to the

30:25 May 2014

30:26 determination.

30:28 There was

30:28 no error

30:30 of fact

30:30 or law

30:31 in that determination.

30:33 As Mr. Hoffman

30:34 noted,

30:35 the vacature

30:37 of the divorce

30:38 decree

30:38 came after

30:39 that decision.

30:40 And so,

30:41 that were

30:43 before the board

30:44 at the time,

30:45 the probative

30:46 evidence

30:46 showed

30:47 that the Veteran

30:48 was in fact

30:49 not,

30:49 the Veteran

30:50 was married

30:52 to Mrs. Matthews,

30:53 and so there was

30:54 no error

30:55 to be remedied

30:56 in that decision.

30:57 Judge Reyna On the basis

30:58 of the

30:59 subsequent evidence,

31:00 could

31:01 the,

31:02 could she go back

31:03 and refile

31:04 for reconsideration

31:05 and say

31:07 this evidence

31:08 has come,

31:08 this evidence

31:09 of obvious error

31:10 of fact

31:10 has come out

31:12 since

31:13 we were last here?

31:15 Appellee Attorney (Ashley Akers) Yes,

31:16 Your Honor.

31:16 Ms. Wolf

31:17 can file

31:18 another request

31:19 for reconsideration.

31:20 She can also

31:21 file

31:22 a motion

31:23 to vacate

31:24 or for

31:25 cue.

31:25 Those remedies

31:26 are still

31:27 available

31:27 to her today.

31:29 Unknown Okay.

31:30 Judge Stoll Wait,

31:31 I have a question

31:31 for you,

31:32 counsel.

31:32 I think,

31:33 I think my question

31:35 probably,

31:36 probably piggybacks

31:37 on Judge Reina's

31:38 question,

31:38 which is,

31:39 I understood

31:40 you to be saying

31:41 that 20.1001A

31:44 is limited

31:45 to

31:46 an obvious

31:47 error

31:47 of fact

31:48 based on

31:49 what evidence

31:49 was in the record

31:50 at the time

31:51 of the Board's

31:52 original decision,

31:53 and that it can't

31:54 be based on

31:55 new evidence.

31:56 That's what I hear

31:57 you to be saying.

31:58 Am I understanding

31:59 you correctly?

32:00 Appellee Attorney (Ashley Akers) That's correct,

32:01 Your Honor.

32:03 Judge Stoll And what is

32:03 your basis

32:04 for saying that?

32:06 Appellee Attorney (Ashley Akers) This dates

32:07 back

32:07 to a case

32:09 called

32:09 Hazan v.

32:10 Gober.

32:11 It's 10VetApp

32:13 511

32:14 from 1997.

32:16 There,

32:17 there could be

32:17 previous cases.

32:18 That's the

32:19 oldest one

32:20 that I'm aware

32:20 of,

32:21 which links

32:22 the obvious

32:23 error standard

32:24 to the Q standard

32:26 and says

32:26 that there's

32:28 no obvious

32:29 error

32:29 on the part

32:30 of the Board

32:30 unless the evidence

32:32 at the time

32:34 considered

32:35 by the Board

32:35 shows an obvious

32:36 error.

32:37 So,

32:37 we are limited

32:38 to the evidence

32:39 that existed

32:39 at the time.

32:40 And I would just

32:41 point out,

32:42 as a practical

32:43 matter,

32:43 Your Honors,

32:44 if the obvious

32:45 error standard

32:46 were to allow

32:47 new evidence,

32:48 then

32:49 duration

32:50 would be no

32:51 different than

32:52 the reopening

32:53 of the case,

32:54 right?

32:54 The time

32:58 that the Board

32:59 determination

33:00 and whether

33:01 that determination

33:02 had an obvious error

33:03 factor law

33:04 based on the time.

33:05 And I would note

33:06 also,

33:07 Your Honors,

33:07 that Ms.

33:08 Wolf did

33:09 file a motion

33:10 and reopen

33:11 her case.

33:13 The Veteran

33:14 or the VA

33:15 granted her

33:16 benefits

33:17 once she

33:17 demonstrated

33:18 her eligibility

33:19 to them

33:20 after she filed

33:21 a motion to reopen.

33:22 And the most

33:22 important part

33:23 goes to Judge

33:26 Prost's last

33:27 question

33:27 to Mr.

33:28 Hoffman

33:28 is that

33:29 we understand

33:31 the panel's

33:32 interest

33:32 in finding

33:33 where the remedy

33:34 lies for Ms.

33:35 Wolf,

33:35 but the appeal

33:37 is not an appeal

33:38 about the effective

33:40 date.

33:40 Ms.

33:41 Wolf did

33:41 not appeal

33:42 the VA's determination

33:43 on her proper

33:45 effective date.

33:45 This appeal

33:46 is merely

33:47 whether

33:48 VA's reconsideration

33:50 regulations

33:51 are unlawful.

33:52 And so,

33:53 Mr.

33:54 Hoffman

33:54 and Ms.

33:55 Wolf

33:55 have argued

33:56 that Congress

33:57 intended

33:58 for the

33:59 reconsideration

34:00 regulations

34:01 to have included

34:02 her circumstance,

34:04 the denial

34:04 of fraud.

34:06 Statute 7103

34:08 does not dictate

34:09 when

34:10 or how

34:11 or under

34:12 what circumstances

34:12 the chairman

34:13 may order

34:14 reconsideration.

34:15 It's silent.

34:16 The statute

34:17 leaves the discretion

34:18 to the VA

34:19 to enact

34:20 reasonable regulations.

34:21 And that's

34:22 what the VA

34:23 did here.

34:24 The VA's

34:25 reconsideration

34:26 regulations

34:26 are consistent

34:27 with what

34:29 Congress

34:29 had previously

34:30 enumerated

34:31 as grounds

34:32 for reconsideration.

34:33 And the VA's

34:34 addition

34:34 of subsection

34:35 C is consistent

34:37 with the numerous

34:41 regulations

34:41 that address

34:41 fraud

34:42 in the grant

34:43 of benefits.

34:44 Ms.

34:44 Wolf has not cited

34:45 any statute

34:47 or any congressional

34:48 intent

34:49 or indication

34:50 that the VA

34:51 should have

34:51 also

34:53 promulgated

34:54 a regulation

34:54 going to

34:55 the denial

34:56 of benefits

34:57 based in

34:58 .

34:58 Isn't that

34:59 Judge Reyna the purpose

35:01 of A?

35:06 Appellee Attorney (Ashley Akers) Of subsection

35:07 A in the

35:08 regulations,

35:09 Your Honor?

35:09 Judge Reyna Yes,

35:10 uh-huh.

35:20 That's

35:20 were saying.

35:21 If you look

35:21 at C,

35:22 it only deals

35:23 with an

35:24 allegation

35:24 that turns

35:25 over an

35:25 allowance

35:25 of benefits,

35:26 but not

35:27 where there's

35:27 been a

35:28 determination

35:29 of denial.

35:30 Why wouldn't

35:31 A cover

35:32 that?

35:33 Appellee Attorney (Ashley Akers) A could

35:34 cover that,

35:35 Your Honor.

35:37 I could

35:38 imagine a

35:38 situation

35:39 in which

35:39 it does.

35:39 It doesn't

35:40 here because

35:40 the fraud

35:42 was not known

35:42 at the time.

35:45 Judge Prost But it is

35:45 where you

35:47 started.

35:48 I think

35:49 you were,

35:49 I thought

35:50 you were suggesting,

35:51 but I wasn't clear

35:51 at the outset

35:52 that she has

35:54 alternatives

35:55 that she might

35:56 pursue

35:57 in order to

35:58 recover

35:58 this

36:00 $60,000

36:01 interim

36:02 benefit.

36:03 Is that

36:03 what you were

36:03 saying?

36:04 And if so,

36:06 can you

36:07 clarify

36:07 that for

36:08 me?

36:09 Unknown Sure,

36:10 Appellee Attorney (Ashley Akers) Your Honor.

36:10 I'm not

36:11 representing that

36:12 Ms. Wolf

36:13 would,

36:14 in fact,

36:14 be entitled

36:15 to the

36:16 amount that

36:17 she's seeking.

36:17 I'm merely

36:18 pointing out

36:18 that she does

36:19 have available

36:20 remedies still.

36:21 She can file

36:22 another motion

36:23 for reconsideration.

36:24 She can file

36:26 a motion

36:26 to vacate.

36:27 And she can

36:27 assert Q.

36:29 And so

36:31 whether

36:31 Ms. Wolf

36:32 can establish

36:33 entitlement

36:34 under all

36:34 of those

36:35 is for the

36:35 VA to determine

36:36 in the first

36:37 instance.

36:38 But for the

36:39 court's

36:39 purpose in

36:40 this case,

36:41 Ms. Wolf

36:41 has not

36:42 shown that

36:43 the regulations

36:43 are inconsistent

36:45 with the

36:46 statute,

36:46 or she

36:47 has not

36:48 shown that

36:49 Congress

36:49 intended

36:50 or required

36:52 or mandated

36:52 the VA

36:53 to promulgate

36:55 a regulation

37:02 Judge Stoll or file

37:02 a motion

37:02 for reconsideration.

37:04 You're talking

37:05 about this

37:05 same statutory

37:07 provision,

37:07 regulatory

37:08 provision

37:08 that we're

37:09 talking about

37:10 today,

37:10 right?

37:11 Or is there

37:11 something

37:12 different?

37:13 Appellee Attorney (Ashley Akers) The same

37:14 one,

37:14 Your Honor.

37:15 Judge Stoll Okay.

37:16 And then

37:16 when you

37:16 talk

37:17 vacate,

37:18 you're

37:18 talking

37:18 about

37:19 the

37:19 provision

37:19 that was

37:20 identified

37:20 by Chief

37:21 Judge

37:21 Bartley

37:22 in her

37:22 dissent,

37:22 right?

37:23 Unknown That's

37:24 Appellee Attorney (Ashley Akers) correct,

37:24 Your Honor.

37:25 Judge Stoll Okay.

37:26 And what

37:26 about,

37:27 I just

37:27 want to

37:27 ask you

37:28 more broadly,

37:29 you know,

37:30 in looking

37:30 at Congress

37:31 enacted

37:32 US 38

37:34 USC 7103

37:36 and the

37:36 title of

37:37 it is

37:37 correction

37:37 of obvious

37:38 errors.

37:40 Is that

37:41 kind of like

37:42 analogous to

37:43 Rule 60

37:43 and a

37:44 district court

37:44 case,

37:45 would you

37:46 say,

37:46 under,

37:46 you know,

37:47 federal rules

37:48 of civil

37:48 procedure?

37:49 Appellee Attorney (Ashley Akers) I don't,

37:52 I think,

37:56 Your Honor,

37:56 perhaps it's

37:58 somewhat

37:58 analogous,

37:59 but certainly

38:00 the federal

38:00 rules of

38:01 civil

38:01 procedure

38:01 don't apply

38:02 to the

38:02 board

38:03 proceeding.

38:04 And I

38:05 think that

38:05 the important

38:07 point here

38:08 is that

38:08 although the

38:09 title states

38:10 obvious errors,

38:11 Congress did

38:12 leave the

38:13 discretion

38:13 to the

38:14 VA

38:14 to determine

38:16 when and

38:16 how and

38:17 under what

38:17 circumstances

38:18 to allow

38:19 reconsideration.

38:21 And so

38:21 although we

38:22 can look

38:23 at the

38:23 statute,

38:24 I think

38:24 Ms.

38:24 Wolf's

38:25 challenge here

38:26 to the

38:27 regulations

38:28 that the

38:29 regulations

38:29 don't specifically

38:30 cover her

38:31 instance

38:31 is not

38:32 solved

38:34 by the

38:34 title of

38:35 7103.

38:37 As we've

38:38 explained

38:38 earlier,

38:39 under subsection

38:40 A,

38:41 the obvious

38:41 error

38:42 provision

38:43 for

38:43 regulation,

38:44 Ms.

38:44 Wolf simply

38:45 doesn't meet

38:46 and so

38:49 she's not

38:50 entitled

38:50 or eligible

38:51 for reconsideration

38:52 under subsection A

38:53 as an obvious

38:54 error.

38:55 Judge Stoll I understand

38:56 what you're

38:57 saying.

38:57 I'm just

38:58 trying to

38:59 understand

38:59 what Congress

39:00 had in

39:00 mind.

39:01 I understand

39:02 your position

39:02 that Congress

39:03 was allowing

39:05 the agency

39:05 to implement

39:06 it.

39:07 But even

39:07 under Rule 63,

39:09 which talks

39:09 about fraud,

39:11 it says it's

39:12 fraud,

39:12 misrepresentation,

39:13 misconduct by an

39:20 attorney.

39:20 If there is a

39:22 corollary

39:22 here that was

39:23 missing in

39:24 Part C,

39:25 it would have

39:25 to be,

39:26 I guess,

39:27 fraud by

39:28 the agency

39:29 or the

39:30 government

39:30 as opposed

39:31 to fraud

39:32 by some

39:33 third party

39:33 if there

39:34 was going

39:35 to be a

39:35 provision

39:36 that was

39:37 analogous

39:38 to a

39:40 denial

39:40 of

39:42 or a

39:43 grant

39:44 of

39:45 benefits

39:52 Appellee Attorney (Ashley Akers) to the

39:52 I think

39:53 it would

39:53 certainly be

39:54 difficult,

39:55 I believe

39:56 this was

39:56 raised earlier,

39:57 for the

39:57 VA to

39:58 enforce

39:58 any fraud

40:00 or investigate

40:01 any fraud

40:02 by third

40:02 parties in

40:03 this instance.

40:04 And it's

40:04 certainly

40:05 the claimant's

40:07 responsibility

40:07 to put

40:08 forth evidence

40:09 that the

40:09 Board erred

40:10 when it's

40:10 arguing that

40:11 reconsideration

40:12 should be

40:13 granted.

40:13 I'm not

40:14 sure what,

40:15 I guess I would

40:18 just say that

40:19 Congress left

40:20 to the

40:21 VA the

40:22 discretion.

40:23 And so,

40:23 whether the

40:24 VA believes

40:25 a certain

40:25 symmetry

40:26 is required

40:27 or maybe

40:29 they've

40:29 thought about

40:30 it in a

40:30 different way,

40:31 that's for

40:31 the VA to

40:34 promulgate

40:34 in its

40:35 regulation.

40:35 Judge Prost Are you familiar

40:36 with a

40:36 case called

40:37 Cushman,

40:38 where we

40:39 thought the

40:39 process

40:40 right?

40:41 Weren't the

40:43 facts in

40:43 Cushman kind

40:44 of close

40:44 to this

40:45 one?

40:45 In other words,

40:46 where someone

40:47 in the

40:47 VA in

40:48 terms of

40:49 record keeping

40:49 or whatever

40:50 does something

40:51 intentionally

40:52 to mess

40:53 things up

40:53 for the

40:54 complainant,

40:55 that constitutes

40:56 a due

40:57 process

40:57 problem,

40:58 and therefore

40:59 that person

41:07 is not

41:08 VA has

41:09 committed

41:09 fraud,

41:10 which

41:11 precludes

41:12 the claimant

41:12 from getting

41:13 her benefits,

41:14 do you

41:15 not agree

41:15 that there

41:16 is recourse

41:17 that can

41:18 be had?

41:21 Appellee Attorney (Ashley Akers) Yes,

41:21 Your Honor.

41:22 Of course,

41:22 there'd be

41:23 recourse if

41:24 the VA were

41:25 the one to

41:25 have committed

41:26 the fraud.

41:27 That would

41:27 certainly be

41:27 a due process

41:29 question.

41:30 I think that

41:31 the difference

41:31 between Cushman

41:33 in this case

41:33 is in Cushman

41:34 there was a

41:35 presentation of

41:37 altered material

41:38 evidence.

41:39 I believe it was

41:39 a medical record.

41:40 Judge Prost I think you're

41:41 misunderstanding

41:41 at least what

41:42 I'm saying.

41:43 I'm not suggesting

41:44 that Cushman

41:45 allows for

41:46 due process

41:47 violations

41:47 committed by

41:48 third parties,

41:49 and I think

41:50 even Mr.

41:50 Hoffman

41:51 points that

41:52 out correctly.

41:53 So,

41:53 I didn't

41:55 suggest that

41:56 that's what

41:56 allows fraud

41:57 for third

41:58 parties.

41:58 I was suggesting

41:59 that if the

42:00 government is

42:01 the perpetrator

42:01 of that fraud

42:02 rather than

42:03 a third

42:03 party,

42:04 there would

42:04 be relief

42:05 to be had

42:06 by the

42:06 complainant.

42:08 Appellee Attorney (Ashley Akers) I agree

42:09 with that,

42:09 Your Honor.

42:10 I believe

42:10 that that

42:11 would be

42:12 a due process

42:13 question,

42:14 and I believe

42:14 that VA's

42:15 regulations

42:16 would cover

42:16 that,

42:17 and it's

42:18 38 CFR

42:20 what's now

42:20 20.1000

42:22 for a

42:23 vacature

42:23 of a

42:24 decision

42:24 which

42:25 allows

42:26 or speaks

42:27 to the

42:27 denial of

42:28 due process

42:28 if there's

42:29 an action

42:30 by the

42:31 VA.

42:31 And so,

42:32 yes,

42:32 I do believe

42:33 that there

42:33 would be

42:48 relief

42:48 to Ms.

42:50 Wolf's

42:52 supplemental

42:52 authority

42:53 that she filed

42:54 with the

42:54 Taylor case.

42:55 I would just

42:56 note that Taylor

42:57 is not relevant

42:58 to the

42:58 resolution

42:59 of this

42:59 appeal.

43:00 There's obviously

43:01 the material

43:02 factual

43:02 distinction

43:03 between

43:03 this case

43:04 and Taylor

43:05 is that in

43:06 Taylor,

43:06 it was the

43:07 government

43:07 like we

43:08 just were

43:08 talking

43:08 about who

43:11 was the

43:11 party that

43:12 caused the

43:13 claimant to

43:14 lose decades

43:14 worth of

43:15 benefits.

43:16 Here again,

43:16 it was the

43:17 third party.

43:18 And also,

43:19 equitable

43:20 estoppel

43:21 is against

43:22 the adversary

43:23 of one.

43:25 Here again,

43:26 we're talking

43:26 about a

43:27 third party.

43:27 So Mr.

43:28 Hoffman's

43:29 argument,

43:29 it would not

43:30 be appropriate

43:30 to remand

43:31 to see if

43:32 equitable estoppel

43:32 were warranted

43:33 here,

43:33 because there's

43:34 been no

43:34 allegation

43:35 that the

43:35 VA was

43:36 involved in

43:37 the fraud

43:37 that was

43:38 found here.

43:39 If there are

43:40 no further

43:40 questions,

43:41 we ask that

43:41 the court

43:42 sustain the

43:43 Veterans Court's

43:43 decision.

43:44 Thank you.

43:45 Judge Prost Thank you.

43:46 Mr.

43:46 Appellee Attorney (Ashley Akers) Hoffman,

43:47 rebuttal,

43:47 please.

43:52 Judge Prost Mr.

43:53 Hoffman,

43:56 are you

43:57 on mood?

44:10 Appellant Attorney (Harold Hamilton Hoffman, Iii) Mr.

44:37 Hoffman,

44:37 we are

44:39 on mood.

44:39 mood.

44:40 Mr.

44:40 She's already filed for reconsideration, so what good is it going to do to file a second one?

44:45 She filed it generally before she was represented, not under 1000A, B, or C, just 1000.

44:52 Vacate at the board won't work because there is no due process violation, and vacate brings us right back here.

44:58 The only time they vacate a decision because of fraud is when it's a grant.

45:01 Cue can't work because there's no Oklahoma court order involved in a cue review.

45:08 Judge Reyna Counselor, although fraud is the underlying issue here, why couldn't you proceed just on the basis of error of fact, that the fact was wrong, the facts that were considered by the board?

45:23 Appellant Attorney (Harold Hamilton Hoffman, Iii) Because I can't prove those facts are wrong, Your Honor, without the evidence of the Oklahoma court order.

45:30 But you have that.

45:32 I have that, but when they say they will review...

45:37 Review that.

45:38 Sorry, Your Honor.

45:40 Judge Reyna Yeah, no, but I think you're stuck on the basis of a future filing for reconsideration to be based on the fraud.

45:53 But just leaving fraud aside, why can't you just do it on an obvious error of fact?

45:57 Appellant Attorney (Harold Hamilton Hoffman, Iii) I could, Your Honor.

46:04 I just don't see how I'm going to succeed on it.

46:07 I don't know how the board is going to just deal with...

46:11 Because all of a sudden, you can...

46:13 If you do that with every single board denial, you could submit evidence that, hey, your denial that you have from 23 years ago was wrong.

46:22 It's obvious wrong.

46:23 Look at this record I have that was generated yesterday.

46:27 There is no time limit to file a motion for reconsideration.

46:30 We would...

46:31 I mean, the board's in trouble now with how long it takes.

46:34 I can't imagine what would happen if you could just submit whatever evidence and get the earliest possible effective date.

46:40 It would also get around...

46:43 New and material evidence reopening claims.

46:46 There would be no point in that statute anymore.

46:48 Judge Prost Mr. Hoffman, can I just move...

46:51 Does she have any claim against the third party here who committed the fraud?

46:57 Because I was...

46:58 While we've been discussing this, I've just been thinking about other circumstances that arise with tax problems with the IRS.

47:06 Often there's an argument, at least, your situation is the result of what some third party did.

47:13 And I...

47:14 I am thinking those issues are relieved by filing a state law claim or some claim against the person who perpetrated the fraud that caused you to lose this money.

47:26 Is there any claim that's pending by your client against this other person?

47:34 Appellant Attorney (Harold Hamilton Hoffman, Iii) I don't think so, Your Honor.

47:36 I don't even know if my client knows where the other person is anymore.

47:40 I...

47:41 Even if...

47:42 Judge Prost But would you agree that a normal...

47:43 You know, in other areas of law...

47:45 Yeah.

47:45 In other arenas, normally that would be the appropriate recourse against the person who perpetrated the fraud as opposed to the government as a different party?

47:56 Appellant Attorney (Harold Hamilton Hoffman, Iii) I think that could be the case in a typical civil suit.

48:01 However, here, Congress never said that, look, if you have recourse against a third party, that means you have no recourse against us.

48:10 The...

48:11 For instance, let's say VA orders someone to...

48:15 To a medical exam, and there's...

48:18 At the medical exam, there's medical malpractice and the person gets hurt.

48:21 Not only would they be able to make a Section 1151 claim, that would not be barred, even if they were suing that medical examiner in a state court.

48:31 There's nothing...

48:32 Congress, when they don't want a veteran to receive duplicate benefits, has always mandated it in a statute.

48:38 For instance, DOD benefits when you're less than 50% service-connected.

48:43 And...

48:44 VA benefits.

48:46 So it just doesn't matter.

48:47 She's entitled to the benefits by statute that Congress wanted her to have.

48:50 Judge Prost Okay.

48:51 I take your point.

48:53 Judge Reyna Also, I think you told me at the beginning that Rhonda Matthews never did receive any payments, right?

48:59 Appellant Attorney (Harold Hamilton Hoffman, Iii) As far as we know, Your Honor, I just don't know...

49:02 I don't know why she committed the fraud.

49:04 I don't know what she got out of it.

49:09 Judge Prost Anything further?

49:10 Appellant Attorney (Harold Hamilton Hoffman, Iii) If I can respond to one more thing about the 7103 being left open, right?

49:15 And it's...

49:18 7103 could be interpreted.

49:19 The VA was left...

49:20 The VA was left to figure out when to reconsider.

49:21 And it...

49:22 The VA did at least look at statutes and determine some of which it should reconsider.

49:28 But what it didn't do, and it figured when it saw that Congress wanted it to reconsider some fraudulent decisions,

49:36 its second decision is not rational.

49:39 The government still, to this day, can't provide a rational explanation of why, when it decided to reconsider fraud,

49:45 it would only reconsider fraud that cost it money.

49:49 And that's why it's arbitrary.

49:51 It's very incomprehensible.

49:52 The court should hold that all decisions influenced by fraud requires reconsideration in order to uphold the confidence that the public has in VA decisions,

50:00 protect the Treasury, and to ensure all claimants, who it knows, are entitled to benefits if we see them.

50:05 Judge Prost Colleagues have nothing further?

50:12 Hearing nothing, thank both counsel and the cases submitted.

50:17 Appellant Attorney (Harold Hamilton Hoffman, Iii) Thank you, Your Honor.