and may it please the court the veterans we represent who were injured while serving our country have run into an insurmountable enemy they have already experienced two and a half to seven years in the appeals from their denials of the veterans benefits that's time already spent in the process this is the thirtieth anniversary of this court's jurisdiction over the veterans court well do you agree that if they've already achieved the relief they sought i understand that requested and therefore why are the people that they don't have they don't have spouses none of the rest of the veterans have gotten what they have or the closest  secretary said her back to the beginning of the line when she got those benefits she has now filed a notice of disagreement with respect to those and this seventy eight year old woman is facing seven more years they gave her one quarter of what she asked for seven more years to get the three quarters i understand in the windy city and my point that that's sort of different than what you're alleging i mean they have now process for cla thirteen and he got a statement of the case which is a resolution of his notice of agreement in december of two thousand and fifteen correct that's correct then he filed his form nine appeal now for now my understanding is this is just the form of the veteran file saying i want to appeal and i want to average it takes veterans thirty nine days to do that they have up to sixty days in order to file such a notice ok so the same month as he is the answer he says no i want to appeal here is my deal then it looks to me like he is appeal was certified to the board within three months of when it was filed and that seems quite a normal list because the statistics that you submitted suggest that the average time to certify is five hundred thirty seven days is that correct that's correct ok so you're not for example in mr martin's case we're not sitting at the v a failed to promptly certified because in his they certified it like this right yes  document that's already been generated the statement the case you take the document that has already been generated the notice of appeal by the veteran and you fill out a couple of pages which takes about two hours to fill out at maximum and that's all that's involved for certification is that correct that is correct ok so that occurred then it's my understanding that he felt a mandamus petition september twenty sixth of two thousand and sixteen which is seven months after it was certified but it looks to me like his appeal still has not even been docketed it's now here in our court docketing it takes a matter of minutes and so i don't know what docketing means for the board and i'm hoping you're going to explain it to me because here in our court we get a notice of appeal and that people's docket it on the very same day because all it really amounts to is entering it into the electronic system here is an appeal here is the documenting and then in short order some briefing schedule those already prepared to say today i mean this is a purple meeting possibly the most outrageous that it's something that should take two hours it's documents that already exist and one two page cover form that gets filled out and it takes on average five hundred thirty seven days now if you didn't take that for mr martin case so he can't personally complain about that but but i do want to know go back to my question of what does it mean to be docketed why has his appeal not been docketed so what does the board have to do to quote docketed it's certified to the board yes when the board gets around to it and the board is the final decision of the secretary it is part of the v a it is the second step of the process the board of veterans appeals has to say ok now we're ready to put it on our docket which will then start a process of three hundred twenty one days before we distribute it for decision to our judges there is nothing in this record nothing that explains why it takes the secretary that long on every i think i must still not understand because let's just take mr martin's case mr martin's case w certified to the board in february of two thousand and sixteen yes you're on the phone the mandamus petition saying wake up people nothing's happening with my case and september of two thousand and sixteen you would have thought that  even to understand your answer there must be something really complex and there in docketing there is not a complex because we are now if i understand it this is april thirtieth of twenty eighteen so we're looking at two years and two months between when the appeal w understanding of what's going on these two that is correct we're sworn minor point and that minor point is that the big v a is the secretary also of the board of veterans appeals makes the put your finger right on the point that we have made continually which is that this is a two year delay from the time this is a two step appeal process sometimes new evidence could be submitted sometimes there's a need for a medical examiner absolutely i can't wait i can't look at an average for development of a case and resolution of that case because let me tell you as a fellow judges we have some cases that take us no time at all on the side and other cases and we're not even building a record setting the record other cases that can take quite a long time for us to fully resolved so i am sympathetic to the idea that not your honor but first part on average takes five hundred days the rest of it which is a year and a quarter the rest of it according to the secretary now takes five and a half years  two of those years are made up of trying to get this form the stupid form let me let me move you along i'm sure it will yes you read the government spoke to one of the general issues presented in this case is whether the two standards the yes your track standard in the state yes yes so i understand your position is that there's something significant distinction between the two standards do we have any examples with respect to these  except from but i couldn't find any cases where the board really apply or this is the ca b c i'm sorry fly that factor in that i mean there's one case i know it's an older one of receipts because  different but is there any way that we satisfy ourselves that in this particular circumstance the c a v see applied the wrong standard because it's the difference that aspect which differentiates the tracks in the from the could stand t case move you for a little bit just to show that he's not refusing to act and they say that's the end of the story i don't care if you want to argue that this violates the due process that all the cases that say that to three four years is too long because stanza won't let you get there they use it to block consideration of the due process argument  because stanza takes into consideration only the interests of the secretary when you get into traffic two of the factors are is this health and welfare type issue for your veteran that's a good that's a good point for him or her is this what is was the nature of the claim so because stances just says to the secretary he must be to you must be busy doesn't pay any attention to what's going on with well that's having that factor certainly a nurse to the benefit of the veteran every single case so why can't we assume that that's just a background factor that exists in all these cases right because it's never suggested it veterans benefits are often medical related but other times they're disability payments which are basically what the veteran needs to survive to buy food you know put gas in the car yes this is correct it's my understanding that when a veteran dies if his or her spouse has pretty deceased her and if they have no minor children remaining that even if they have a completely legitimate claim that tended for seven years before final resolution they never get the relief any they get the medical if there is out of pocket medical that they will never get the disability payments which amount to basically their living their their their little funds necessary for a living is that correct that is correct if they die without a spouse or minor children it's gone not the medical if somebody had to put out the medical do they get the medical back if it's going to disability claims here don't for example suppose that i had a veteran in my family who had a claim for disability and they couldn't work they were totally disabled and in you know for the years the seven years while their claim was pending i'm paying the rent for them because otherwise they would be on the streets right now so i paying their rent for them and taking seven years to process the claim and in the end the government says well looks like you have a valid claim you were probably going to war yada yada yada and then that turn dies and i have to be twenty six years old but i've been paying for my veteran in my family for the last seven years while he or she has been waiting to receive the benefits owed to them because they were injured in the service of our country so that person is you i can't step in and say well wait a minute you know during the last seven years i had to pay twenty seven thousand dollars i went into debt paying my grandmother's ranter my grandad's rent or whatever that money she's gone you had a look so i take care of a question but just the other side of that coin which is just represents reality is that this seems to be and i hate this expression but a serial some day the v a has the same budget and we as a different branch of government don't have that there is one point which is there's a finite amount of resources so even if we were to say you have to do this more quickly maybe the money that has to come out of met medical care for veterans and the other point of this which has been made in another  good for the people involved but all that means that another veteran hasn't sought mandamus is going to be pushed to the back of the line or further behind in the line so what are we to do with all of that let me ask your circle answer your second question but the one that our veterans all got jumped in except for mr moore is a loan that should not exist under the due process clause this problem can be fixed there is of cases we see but they didn't congress to act and we've got a new statute now i don't know the details of that they're not part of our record but one would hope and surmise that people recognize the problem that you see a record it was filed just in case you want to find it but it does look these veterans are any good at all this is a program in which if they participated the secretary says well we'll get to your city your first level decision in one hundred twenty five days rather than by this great that's wonderful and then you've got a five and a half year delay to get to the board of veterans appeals it doesn't touch that in any way and our folks would be price that may be may be good for them so what should have been done and everybody else who's kinds are ready and you're suggesting the congress or the stepped in and said ok you have to divide devote all your resources to cleaning up your backlog i mean what are we supposed to do with that where article three the v a gets more money and more people any time asks what what congress should do if secretary there is a reason that congress put the veterans court and you hear it said that the veterans court disposed to see that there is no one reason the lady at the very start has no this because in an individual case like mr martin's there is a legitimate problem and we need to correct what's going on that individual case but it feels i just  grandstanding it feels like in your brief you're doing a little bit of the same thing do you operate under some sort of illusion that as a judiciary we can order the secretary to adopt raids and promise things no certain time scream that and they don't disagree with it for what is it you think we can do other than order each individual relief in the individual cases you have brought here so here is what we ask you to running out i was i was short cutting it i only mean these veterans but if you hold that these delays violate the due process clause it has an effect elsewhere it's but that's not what we're asked for that argue about the standards or versus versus trial and absolutely independent right is to say that procedural due process which you f when somebody applies for disability benefits procedural due process prevents the government from taking seven years to make a decision we are being deprived of our any statute regulation or practice that interferes with prompt and people's we're not asking for that at this point we thought that perhaps the secretary would come to us and say you know this regulation is in the way issue a final decision under norton that's what you can do that's what's required here's a scene here is a statutory requirement say thirty seconds you know don't worry about your way they can comply in their case load and given their resources is ok well just have to give short shrift to the merits of these cases we can't allow more medical opinions we're not going to give them the chance to respond to documents us that was in the first five hundred days or so we are now at the board of veterans appeals yes yes we've talked our veterans they may just say one judge said sixty days here it is in five days you lose if they there is a due process deprivation that's going along with it whether you decide it or not and if it goes back like that i would ask the court to hold  documents in a fashion that does not deprive the pattern of their due process rights that the jury what is the i don't understand what are necessary appellate documents was that the statement of the case we we should have been more specific and that's my fault that we work that is a final decision by the board of veterans appeals saying you win or you lose and and this is never been a question raised construe refusing to be an affirmative refusal i thought i can understand from your great friend you seem to be defending the standard but that kind of reinterpreting at and suggesting that maybe it's not really all that different from tracks one should tell us what you've sure your honor and the same sort of standard but it's asking about is not just whether or not there was an arbitrary refusal to act it's asking whether or not there is a delay that is so extraordinary taking into account the burdens on the secretary that it amounts to an arbitrary refusal to act and i think the point that we try to make in our brain is that that on its face that standard does not require any affirmative refusal to act in a given case what it does take and it's really hard you know to take a statement where the words are well i think it's not so much as what's wrong with track as they're not there isn't anything wrong in fact there's a lot right with what the christan standard does so what's the difference well i think the history of the standard the veterans court has adopted that formulation in the context of the  the veterans court is taking into account the circumstances facing the individuals that are in it's not just considered so that factors ok what other factors in track do you think is there a difference between that which i have a two part question one of what is the difference they do but i think if your question is what is the difference between the two standards all i can really point to is the fact that you've got a very long and complex it with the d c circuit acknowledges a basic standard in the track standard that is different on it face from a stance standard like a stance or standard does use this arbitrary refusal to act language i think our position maybe it's because you don't have a good answer you're evading the chief judge's question which is whatever size differences let me help you with number five under track is the court should also take into account the nature and extent of the interest prejudiced b already is there anything you believe in the arbitrary refusal to act language that would take into account if you understand it have an effect trans interests are being prejudiced like these veterans who died for example right during this and went two hundred sixty three district court and regional circuit opinions throughout the country have followed it and use these six factors it was just entirely superfluous because it really reflects nothing more than the mandamus standard it seems odd that all of those courts with think they should go through these six factors because it's not six hundred cases like the blueprint claims it's two hundred sixty three because i went through actually in my lock up there and through all of them so it's two hundred sixty three cases and in many different  veterans usually the supreme court has said i'll be honest i've never understood this someone of the scale thing i don't even know what that means i'm not i'm a plain language kind of gal i don't get what someone's ghibellines i know you know what i'm referring to right but the supreme court said you know we were always to be more favorable interpretations of the terms not less we have two different standards we have because since a standard articulated by the court of reference claims in one and a half pages of no analysis it comes up with this arbitrary refusal to act language which is then repeatedly applied we have a d c circuit opinion that articulate six factors several of which seem like they'd be more favorable to veterans under these mandamus circumstances do you think there's anything to that supreme court language that says some ne skill for veterans when you're choosing to interpret regulations you should choose the interpretations more favorable to the doctrine could that maybe the kind of thing that tells us in this case for goodness sakes you probably are on high the same standard that five regional circuits and ninety four case if you were to do a trach analysis if there's really been no showing that that you would come up with it so now you come up with any kind of hypothetical where that it would be it would be a difference a different result they start on the distinction i'm still i'm still can't get over not understanding what the government's position is to what the distinction is obviously track has a lot more words and briggs and other kinds of policy concepts but at bottom i'm trying to see if the government thinks that there's any circumstance in which applying to different standards would lead to a different result your honor i'm not sure i can come up with a situation that that that would lead to a different result offhand but that our position is really that you have settled case law that with which the stance of formulation is can system you have the fact it's been repeatedly has as reached the question that was presented before which is on a mandamus petition under the cheney standard as reflected in the supreme court's decision and kerr you need proof really two three things a clear and indisputable right to relieve a lot of flak  quick alternative means of obtaining it and that this record of the letters for this case has to be convinced that a mandamus petition should issue in the last one is significant to you because you are looking at this one abuse of discretion standard and asking whether or not the veterans court abused its discretion under that three prong formula i think and the other just because i want to segue into the movies question because there are a lot of his questions that many of the details here but frankly let's look at mr martin short because he's the only one at least as judge moore pointed out things well i think our our supplement characterized the status as it stands and i would just say in terms of yeah but you're really walking into it because this is what there's been no action and we'll get into it i'm sure between what judge understanding is that docketing is when the board is essentially receiving the cases ready to hear it it's it's different from simply sort of listing it on the electronic database or what have you but it's actually when the board is ready to hear it the number of days that it's taken between the sort of occasions stage and the other people get their cases ready if here in a matter of months and mr martin it's now oh well over two years and it hasn't been doctored in europe i don't know why it took mr martin situation longer i do know that would affect well what yeah i mean i have no idea i mean this is over it hasn't happened yet we don't know when it's going to happen well that's right we don't know but with respect to mr martin mr martin i believe this request and if you're in before the board and in some cases at least and i don't know the specifics with respect to his case it can there can be situations where after the so called form nine such an appeal is filed in the certification stage there can be new evidence submitted and mr martin is also requested the hearing which is can result in sort of a difference with other veterans if you request not help you give an information with respect to that i do want to be careful here in terms of that and describing the state of play in the appellate system there is a big difference between where we are today and or where we are if this story clean the record of this case versus under the new doesn't apply to mr martin and just like you'd like me to take into account which cases are mooted by subsequent action that has actually occurred and then post the petition i can't imagine what might happen to someone other than mr martin in the future i have limited much to his chagrin to decide whether in an individual case it individually warrants a petition for me in the game and i view my job is quite narrow fusion very much appreciate in this case it why shouldn't i say it's an abuse of discretion either because they can stand to stand or was wrong as a matter of law or because just under the facts of this case you've said nothing that convince me that it warrants two years to move from a certification to a document which is not even a resolution right which is passed in the case on the judges who are going to hear it it's not like there's a briefing in between that leads up to it no more evidence is being taken in mr martin's case why isn't that more thing mandamus forget about every other case this one why doesn't work well first of all it had a couple responses your honor one is that this new modernization act is not going to effect until february of ninety twenty one thousand however the v a as reflected in our supplemental appendix is in the process of issuing invitations to veterans who have the so called legacy appeals and that includes people like mr martin who would have the ability to opt  and the idea is that they have the ability if they want to take advantage of that program now to basically invoke the faster review process and so he could it with respect instead of waiting for a board decision he then go back for a higher higher level review for the regional office or if you want to sometimes have misunderstanding something this is the letter you sent to him and it says compensation related appeals certified to the board through formal placing on the board looking at it those people are not going to be able to participate or wraps to avoid the dips due to duplicate duplication so i'm not sure if that applies to mr maher now that you read that to me or not i do want to make a couple of other up servatius though it would because our focus our argument is not simply that ramp answer i'm not looking to change policy for the secretary or rewrite the laws no matter how much people like me to do that based on the briefing in this case i'm not going to figure out whether these individual veterans have suffered reasonable to laze and if i want to get back because there's this question about the certification and you were discussing that in response to questions from both the chief judge and judge moore as i understand it from what you're saying please correct me if i'm wrong if get certified to the board ok then it's sitting there before the board but the board does not officially docket it until it decides it has s it in line with all of the other cases already has is that what you're saying i think that is what i'm suggesting your honor i am i'm not sure exactly what transpires between the circuit certification and that sort of decision that is ready to be pointing out which is correct obviously the deal gets filed here it's docket either that day or the next day and then it gets on a track of scheduling orders issued but what i hear you saying and what i got a sense of from some of the affidavits that were mentioned are or declarations that were mentioned in the record that what happens is appeal goes certification gets filed with the board but the board doesn't take what we would think of as a common docketing action until it determines that it's in a position where it can start judy kate in the case in some way is that i think that's right your honor i think that's correct so there's kind of  framed we are not focusing on just the darkening versus the statement of the case versus the certification the and again going back to the requests for relief and how problematic it is asking the court to eliminate the place you did that the way the way the issue i'd be glad to provide a supplemental brief of the corps interested in terms of i believe that our regulations that clarify what that process is i do in the board statistics are number of important pieces of information that we think are in there we just filed in the supplemental appendix re lated to the board's processes that that do i do believe touch on this process of the docket but that really is it in terms of what your your characterization of sort of where the case stands now i would beg to differ without an aspect of that in that what the veterans court was considering was whether on the record before it at the time now that was late to twenty sixteen is whether mandamus would issue the fact that is was appropriate the fact that a number of these things have occurred since then in our view really reinforces the fact that but aside from that is it the government's position that even if we were to conclude that the wrong standard was supply the cases have been mooted out by subsequent action and therefore they were all done no your honor it's a new claim and i believe i counsel suggested that there were been for veterans who died a minor scenes i think there were two it's myers and in the other case myers and then i believe mr miller had to cease during the pendency of the claim but this is another claimant she had a board decision that was issued just a few days ago april seventeenth twenty eighteen in our view that renders that claim moot as well fact that these are there have been these subsequent steps that these were the these were the appellant that were seeking a statement of the case and subsequent to the filing of the mandamus a statement of the case was issued if i'm correct about that then the government is not arguing that that those appeals are therefore moved well your honor i'm not sure that with respect to mr gene i think all of these appellants are not necessarily focused on just the issuance of the statement of the case i think as i understand their argument and it is for of discretion you're looking at whether or not rhythm and amos was properly denied and on that basis whether or not you apply this truck standard or the stand the standard you're ultimately asking whether or not there was a clear and indisputable right to relief and whether they're all adequate alternatively don't you know the answer is we're not reversing i mean i didn't that suggest that we were going to reverse the result but you're right just because there's such a deferential standard how is it possible for us to know how the board would  simply would have applied a different test well your honor i know you're right we don't know how the court would have applied what i'm suggesting it ever and the other thing we're supposed to do under mandamus is defer to what the c a b c things so i guess i'm not understanding why the answer to that question is going to be mr daniels beforehand that the with respect to mr rose there were actually two appeals and the board had docketed one on may twenty fifth twenty seventeen the second had been certified so i think it's just mr daniels with respect to the rose case that and then mr miller unfortunately passed away but the other people so just you're saying just daniels and miller correct why w know how to process at play here like for example if we were to find that the lawyer for the client we're going to take it in for them to apply track are the ones that are still out there what do formulation or something else the fact that there has been activity on these appeals and this court held the lamp that the writ of mandamus should not be used as a substitute a substitute for the normal appellate procedures and as long as that's the case it would not be appropriate whether you view this or that due process type of issue or something else for the court to issue grandam mandamus in order hearings especially when you do you know you're not you're not the only meaning to for me and that's what i was kind of hoping to have you do because i'm not sure i'm honestly not sure of what to do with due process as separate and distinct from a petition for mandamus for a reasonable delay i'm just not well on your honor i think you don't need to necessarily start with a due process type of matthew's balancing analysis that's the that's final decision you said you're not arguing that they are moved but you submitted that there had been action taken and i guess i'm not clear and and therefore and therefore so and therefore on the basis of the court's abuse of discretion review that the fact that there has been action taken those appeals reinforces the conclusion that they have not met their burden on the mandamus standard that there is an adequate a the diversion  i mean we're supposed to be reviewing the court see a b c s decision on mandamus as you told us and whether or not the abused their discretion so how are we supposed to take into account subsequent action taken that wasn't before what i would i would agree with  honor you are limited to really the record before the veterans court to the extent that you do consider these sort of post petition developments the person i want to make the court aware of them to make sure because they are relevant but ultimately you are asking about whether on the record before the veterans court there was consider injunctions and then sort of saying it has two different branches one goes off and says let's look at cheney let's look at what is the right that is being sought and we have two separate men and women have a constitutional right not to be deprived of due process by this faking extraordinary number of years so those are the two different points there are some i think  know when and any of those opinions or most of them what the nature of the analysis of the application because there's nothing written there that's right and i thought that that made the point you make it occurs to me that if tracking konstanz are the same why in the veterans court you should use track factors x y but not all the rest another were in your view are we free to say to the veterans court if we go that route that pretty much embrace tract you can say no this is a little bit different animal so you're saying we could school or in your view if we agreed with you your position we could tailor track to the circumstances of the v a process as  long as it takes into consideration what's going on with the veteran and not just what's going on with the yes your honor my time is up there was a question about due process violating the separation of powers it's due process is considered by the court it is a court thing you can say that this violates the process