begin i would st like to acknowledge mr monk who is on the line today mr dolphin is beginning the th year waiting on the v a to decide his claim that is too long under any legal standard martin dolphin and mr dolphin did receive a board decision earlier this year at the beginning of the year correct mr dolphin received a partial decision on some of his appeal benefits but i will direct this court to make clear that issue a decision on the merits of some of the issues before is that fair to say mr dolphin received a resolution on some of the claims that were before the board but it still amounted to ultimately sixty thousand dollars that he has now been waiting more than six years to receive the he was entitled to a proper and full decision on his benefits when he appealed them in two thousand and fourteen when he know the effective date issue for the t d i you claim is the is mr is still before the board for mr dolphin but i would like to demonstrate that even if all of mr dolphins claims were resolved  we don't have a final judgment why do we have jurisdiction what we are appealing here is we're talking about the c d c s interpretation of track to mr dolphins total delay so a delay claim becomes right and we have that kind of final decision final agency action when it simply becomes too long otherwise you couldn't possibly challenge delay in court so what we're saying here is the c b c did not properly interpret track in order to assess that board but even if all of the appellant claims were resolved re stand on our arguments in our briefing that the exceptions to move apply and that this court would be empowered to review the c b c s interpretation of track we would like to because the government has conceded movements in mr dolphins case we would like to focus on that aspect of the case you said the government has conceded movements in have at certain points been offered the opportunity to opt into the a m a there is no obligation for a veteran to give up their place in line and engage in an untested system in order to have their appeals adjudicated a timely fashion the secretary has to decide these claims in a timely fashion and the c d c have the burden to compel action of the secretary unreasonably delayed what we present to you here is a case in which the c misinterpreted the tractor and we have at least we will give you mr dolphin case that is something you can decide here today i would like to reserve the rest of my time for a bottle thank you  a benefit claim a late hypertension and so directed the regional office to take up those issues and provide a very specific directions on what needed to be done and what sort of findings needed to be mad received what she was looking for which was dependent benefits she's now pursuing other on related benefits within the system so in and for each of those three accounts they received what they're complaining about what the what they want the court to order to do which is a decision of the board to do they've got a decision the fact that some of them are remain and i don't think the analogy remote works at all agreement to develop the issues that the board of knowledge were brought up there and that's one of the things running through this this case here and that i don't think appellants ever deal with well in their brief is that we're dealing with an open system here the us courts jurisprudence documents very well both the problems with the legacy system which are well known and have been discussed in many contexts and are talked up and down the ladder as evidence brings up new issues that need to be reviewed more medical exams need to be taken and when you look at mr dolphins case in particular you can see that writ large seventeen individual that the claim has moved up and down through the various mechanisms that are to the veterans benefit within the legacy system to make sure that everything's adjudicated that where medical exams need to be done they are at his record indicates numerous one point i think was ten medical exams scheduled in a certain time period and the result of that is if you move through the timeline they speak in their reply brief they always try to there's activity throughout those years and that's and that's not just activity sort of ministerial activity moving the thing along it's activity that's resulting in benefits right along the way mr dolphin i other individual benefits he gets t d i you granted in twenty eight dollars teams and so what's going on now in his is claim is he's there are other disabilities that he's raised those are being developed it's not he's already on one hundred percent what that's on the cd but he wants higher individual ratings for certain disabilities and the effective date of the t d i you and the fellows council described that so i think you know on this question of two points mr dolphin of the only claimant who claims is not because of the way harper treats t and we do concede that but when you then move to the analysis of the extraordinary relief of mandamus and you look at the facts of mr dolphins claim and run t was exemplary it looked at it balanced it looked at the issues from mr dolphins perspective delay it used its expertise me in the courts expertise with the veteran system to describe and apply to this balancing review and specific components of the veteran system important within that system and i think it comes up at the court starts to consider the effect of remand on some of these other iteration now the legace they're not still within the legacy system that brought about they're there to lay claim as they describe because once reminded under the regulations they effectively move up in line there are specific things this case law in the circuit about the legal standards here are properly stated this isn't like martin where there was a dispute between can stand and whether or not it should be applied a movement standard is well known this case as we say in our brief where if you just look at how the the court of appeals read it claims apply the facts of the movement standards that's not something that falls within this court and but jurisdictionally speaking so we think the court should take a hard look at whether or not there are in fact not frivolous legal issues raised  mandamus i was going to address what the court should do if it thinks that he has met the track factors and then what what manner of relief should it fashion if that i may have misheard the be circumspect and and free man things the court appeals for veterans claims with instruction to decide what the appropriate relief is and when you look at the the general mandamus factors under cheney you know the court has to convince itself that it's appropriate to look at what's the appropriate belief and then martin this court emphasize that the expertise of the court of appeals of veterans cleanings on the court i guess eleven question is what is the current status of that pending matter in front of the board right now do you your representing the v a can you give us any information about what letters all parties missed this this harper issue that was there so i think there's not a documents within the record and talking to v a that there's nothing specific that we know is going on with the t d i you effective date it's part of what is proceeding but in terms of a specific action to it and you know what being able to speculate as a timetable i simply i can't do that sitting here right now it is your best guess that this was just there were a number of issues in front of the board and is it your best guess that this particular one was just overlooked by the board you know judge chen i in all honesty i think that might be the case i think been granted i think that it's very possible that the board did not catch this issue that the effective date would stay with the claim and so there could also be an order from the court mandamus hasn't made a but effort should be made or or steps should be taken to ensure that the board is aware of this separate effective date issue if it's not already something along those lines but i still don't think that the school correct in what way and when you look at the statistics that are being reported it includes not only the a m a cases but also breaks out the legacy cases and how those are be worked through how the time of decision working remaining because those numbers are going down fairly quickly and in terms of the numbers that are remaining in  integral part of his petition on appeal so this is part and parcel of mr dolphins appeal starting back with the end of d which was filed literally six years ago october thirty one of two thousand and fourteen now if i may i'll just outline the overview and then we can dip into this overview is that mr dolphin has a live case and the other three protection or o b mr monk and mr hudson have received decisions and have made claims arguments that are still part of this briefing that they fit the exceptions to mcness and our legal argument is that the that arinze court misconstrued the track factors for mr dolphin that's the legal issue that needs to be decided they fail to decide his constitutional claim over which he would have complete the novo review on law and facts and they misconstrued the movement if exceptions for the three other petitioners as to which you also have the legal capacity to review we ourselves are focused on mr dolphin because the veterans organization  concedes that his petition is not moot and judge laurie that is what my co counsel was saying the veterans administration concedes that mr dolphin ha petition which means we should be looking at the mandamus factors and the track factors and how they interact and under the mandamus factors the three cheney factors we believe that there is no other release but to come to this court at this point and ask you to order that the decision be rendered for him in a timely manner as you have all just discovered with your colloquy with mr pelkey and i commend him for his candor there is no idea as to when mr dolphin is going to get an actual decision on the remaining benefits question and after six years that's a shame and beyond that it's unconstitutional and statutorily unreasonable that we now hear that they may have overlooked the issue well they need to fix that process that should be a man da fix mr dolphin t d i you benefit within the next thirty days they've already conceded his effective date is november th two thousand and nine so we've already established through the veterans organization that the man is entitled to these benefits going back to november two thousand and nine but yet he sitting here in november having received a decision in february that was totally mystifying as to whether all of his different claims were being considered and it took sleuthing work by yale law school to figure out that the man was shortchanged by sixty thousand dollars if he didn't have counsel this never would have come to light and it's wrong for the veteran administration not to say you know what since martin there's only been one mandamus petition granted that was ghodsee and it was a sub unit of the appeals process as you know through a class action but anyone in the whole system has a bonafide right to a mandamus petition at this point in time it is mr dolphin and they should truly just say we have failed him the mr dolphin still has not received the full decision meaning the grant or denial of benefits we know it's a grant of benefits i urge you i urge you to issue the decision saying that mr dolphin is entitled to