had a duty as a matter of law to comply with the remained and by willfully denying and unreasonably delaying compliance with the remained and that the proposed sanctions for his contempt of court were appropriate even though those concessions would resolve this case we submit to the court that the constitutional questions about mr hall's due process rights specifically the right as a matter of law for the secretary to comply with the remained being a due process rights should be addressed by the court and that the issue of whether there was an unreasonable delay should be addressed by the court ok i mean i kind of lost you in your argument you've got a decision from the board right and that was the basis for your writ of mandamus not two years is too long that's a denial of due process when it's two years versus a year and a half there's no black letter law about that your honor but the reality is that the decision that's just been issued is also in violation of the two thousand sixteen court order the court said at that point in time that if there was going to be a recalibration that the government had requested that recalibration should be done and mr hall should then have the opportunity to submit both argument and evidence well you recognize obviously that it's not within our jurisdiction to adjudicate the correctness or lack of correctness of an opinion that was issued a couple a month ago right they opinion is that was  issued a couple of weeks ago your honor ok but your you have chappy you understand that we're not in a position to evaluate any challenges you may have to that opinion i think correct or i understand that but our position is that that opinion at best stop the clock from running there was a noncompliance clock that began when the court issued its mandate and that clock never stopped running until this october nd decision was put on the table but in the interim for one thousand two hundred and seventeen dollars ways at least a portion of that time maybe a short portion but a portion that time after you file a writ my understanding was that you were  participate in the proceeding at which delayed it for at least seven months in my room about that your honor and that the reason for that is we weren't refusing to participate just for the matter of the lay we were number one refusing to participate because my client was hospitalized for a period of time but we kept saying if you're going to do a hearing you have to have the recalibration the recalibration had not been done during that period of time all we kept saying was prior to the responsibility to do the recalibration in any specific time they basically said the court ordered a recalibration based on their request but we have no responsibility to in fact do the recalibration at any point in time now the difficulty with that is that number one it takes the idea of a concession and throws it out the window because as we pointed out you know i'm a little confused so help me out here is your view now  government refused to it's not before us so i understand that but it is far is what's before us so that two and a half years that the case was it was remained it and then it was two and a half years that approximately it was a it was more than two years your honor and then we've done another year so we are between the time of the mandate of the two thousand and sixteen decision and the october nd decision by the board was one thousand two hundred and seventeen days and our contention is that irrespective of the fact that there was in fact a recalibration assuming that that was done in the b b a decision there was a one thousand two hundred and seventeen dollars day period of time where mr hall's due process the remedy that you are requesting yes and we have suggested your honor that sanctions are appropriate against the government for their contempt of court they are requesting not an personal sanction your questioning would of the relief that was originally requested were requesting an award of relief it wasn't what was originally requested your honor but our position is that if you take a look at the decision this court's decision and you  seventy two we picked that date for reasons based in the record that the original decision was simply wrong and ignored factual evidence that was in the record but we've suggested that there is in fact an appropriate sanction that should it implied up clyde against the secretary in this particular case for his unwillingness to it here to the court's order the court ordered in his decision two weeks which is not a decision that's before us it's been a p i'm sorry i'm not sure how much and when you're saying the sanction is because the board feel to do something now we're saying that the sanction is that the secretary of the veterans affairs ask for in two thousand and sixteen that the veterans court require a recalibration the court said we grant your request i then asked twenty five times in the next two years for the secretary to carry out the recalibration the recalibration was not done our position was that this is a rule of law question the court issued a decision that said you have to do something  secretary ignored it and basically has said in all of his papers today to date that he had no obligation at any specific time to comply with the requirement he could do it at some indefinite time that he chose but it was going to be done and his choice whenever he decided to do it and therefore there was no requirement that anything can be done to force him to do it otherwise and i'd like to point out that in marbury vs madison chief justice marshall gave an example of a disabled veteran and if the disabled veterans were put on a pension list by the by the congress that pension list was something that was supposed to be a duty that the secretary of war simply had to apply so marshall said in marbury that the duty that was him papa imply from the act of congress was something that the secretary really didn't have any discretion about he had to do it now that act of congress is much like the decision of the two thousand and sixteen veterans court the court said you have to do or we may end the secretary of veteran affairs had no discretion especially since he'd asked for the reason and for the purpose of the recalibration to begin with he had no duty to say i'm not going to do it he had a responsibility to comply with the court's order and by not doing that he was in contempt of court now what happened at the veterans court and the men damus proceedings was that the court was basically presented a set of smoke and mirrors there was supposedly lots of process that was going on none of which had anything to do with the specific requirement to do the recalibration it was all other process relating to hearings i'm not really going so your charge here with respect to violation  due process and the need for sanctions is not when the board was going to issue its opinion and resolve this it was on when they did that we can ration yes ma'am they were required to do the recalibration on the basis of a specific request by the secretary so your position basically is some short period after the rematch the recalibration should have been done with input from the veteran and that after that short period everything else was in violation of well in the martin case this court determined that two years might or might not be an reasonable and might or might not be a denial of due process under the circumstances and our position was that after asking twenty five  this recalibration to be done and it wasn't done at the end of that two year period of time it was really inappropriate to say that the secretary should continue to delay and delay and so we took the position that that was appropriate for manda to the actual issuing of that decision there should be some recompense some solution that should be given to mr hall for the fact that his due process rights were violated during that period of time i guess i'm unclear if they had done t calibration on week to go it would have been whatever they did would have no force in effect until the board actually decided the case as they did two weeks ago right i'm having a hard time differentiating between your arguments with respect to the recalibration and just the fact that the board was sitting on the case and initial decision but the court itself issued i'm sorry the board did the recalibration in october of this year ok they were not authorized to do that recalibration my only comment up to this point was with respect to the writ the writ was asking for specific performance relief in that particular case it was asking for a board decision that this court entertain that and tonight and that's what's on appeal here and i will know it's far as we can tell as it was included in there was to not to be confused with the motion for an oral argument which is filed subsequent that there was wrapped up in the treated as a separate motion for sanctions as they have in the past the harvey decision being a particular example of that and went ahead and dealt with that separately and the secretary briefed it separately too in contrast to the suggestion and in the blueberries the secretary did respond at appendix three hundred and thirty one the three hundred and thirty four to the to the motion of for sanctions indicating that that and he's preserved that so that's an interesting question the argument for in the blue brief argues that the secretary's failure to basically defend the stiegel violation as far as i can tell amount to a concession that sanctions were appropriate and that the factions court erred by not issuing sanctions given that sec concessions our response to that in the red brief is i don't we don't understand how that failure to produce an issue could be a concession on a on an issue like this which is within the discretion of the texas court to make that moreover as i just indicated reference to appendix three hundred and thirty one of three hundred and thirty four the government did respond to the argument for sanctions it's just that it appears mr halls and wasn't satisfied with the government's response mr hall believes as an now that he was entitle to a recalibration by the regional office i think that seems to be what's undergirding a lot of this but there's nothing in the decision from the duchesse court that initially remanded the case that suggests that the board and my question that regard is would take arguably have been entitled to either sanctions or a directive that he win the case in its entirety or something else that just because the board issue and it's just issued the decision while it was pending before us how does that necessarily automatically result it's moved when there are other issues that we have to look at as judge newman indicated with respect to the r decision to actually contains it recalibration analysis and he is now in a position to the extent he disagrees with how the board did it or even whether it was appropriate for the board and not the regional office to do it he has a basis to deal with that and that's the appeal of that decision ordered that original that's his court reman order which is appendix twelve offers and orders the v a to consent to allow mr hall to submit additional evidence an the court more recently when it does tonight the mandamus groves and harvey where the dream and was to the board to take a specific action as the court can appreciate and has recognized recognized in the martin case recently when a remount involves additional development time periods the two years two and a half think you have taken a kind of like track factor three i think you take into account the nature of what needs to be done and remember so st of all when the veterans court tells the secretary on that on the hearing issue in two thousand and sixteen that mr hall is entitled to add additional record providence what the board did with that was to say ok we will send it back to the r o in december th seen to allow so now the board has all kinds of issues involving mr hall different claims what it decides to do in december of two thousand and sixteen is because as to comply with the notice the same notice allowing more evidence on the hearing issue takes all of sixteen to the regional office and says fix this which the regional office does most of the delay occurring throughout two thousand and seventeen has to do with trying to get mr hall in to get his medical exams on the other he submitted evidence addressing that i think you submitted evidence suggesting a lot of things i would have included the calibration issue at that point it's possible that someone could have separated the claims again but we would submit it wasn't inappropriate and the veterans court doesn't appear to think it was to not separate the claims because it was operating generally under sort of the principle that when they get a bunch of claims together they try to address them all before issuing a final decision and it's generally consistent also denies the q claims now mr hall would take issue with that because that would be that decision that one would expect of fulsome analysis of the of the hearing recalibration issue but know for sure it's possible that the regional office did some sort of recalibration but didn't bother to stick it in their decision or it's possible they just i thought they were developing the case and didn't understand that they mean that they could do a sort of live claims with respect to the renal and until the lung so they're all sort of packaged together they come up then and then there's the hearing delays st with respect to the moment administrative judge not understanding you supposed to have a hearing on that particular question and then getting rescheduled for that and then mr hall's desire to have the petition that he had then pending before the veterans court addressed before he agreed to go and have another hearing which it turned out there was another gr april earlier this year that they did have the hearing the issues that are the board issues it's a system a couple of weeks ago and it does not only addresses the recalibration issue but it also addresses the other two issues that had been remanded by the bo earlier your year and half earlier so what are we supposed to do with these cases also here's here's how i see it there were two basic motions if you will pending before the victim score and that are those that were denied addressed and denied by the texas co basically takes the remedy off the table so therefore moves the case because he was seeking as part of the rip process issuance of a board decision that dealt with the recalibration you know as that we can take that to the  unsatisfied with it in any number of ways like i said substantively or procedurally those avenues are available to him to take that the other issue that vexes court addressed in his decision up the next five was the motion for sanctions civil sanction motions where they felt that one party of the other was basically acting contrary to the interests of the courts in some ways it's similar the way it's been looked at by the  involves a different type of remedy the problem i see with respect to that remedy is i don't see a challenge to the victim's court's finding on the merits on the sanctions in the blue brief instead i've see this argument that's been fashioned based upon the secretary's briefing of that issue and i've addressed a response to that already which i think a and i'll just skip to number one on the merits we do respond we did respond to the motion on the briefing but even arguably if we hadn't responded since it's an exercise of the court's discussion to try to enforce what it perceives to be gross negligence with respect to its own new orders the court could issue a decision as it didn't this case denying the relief saying that they thought that the actions of the there was no decision at that time we can't defend the merits of a decision that didn't exist but what we can do is address the real issue that was before the court which was the delay and we did address that line explain what we were doing at every step of the process  argument and ruled consistent with our argument that any delays were understandable and that would you know that would be a marriage type issue before the court but i don't see it in the blue brief but even if it is someone somewhere in there we would submit th as the procedural history of this case indicates the secretary took steps all along the way and if the court were to engage in the now assess with respect to the merits of that one of the big factors i would say looking at is the nature of the regime and when when the remained here from the bench and scored its own reman which it's now going to be at the time looking at whether the sector was in compliance offered and offered the appellant the optimism and additional evidence as opposed to those cases where all of those factors were examined by the trial court consistent provided action score consistent with this court's decision in martin we submit that there was no error that you know abuse of discretion on the part of the veteran score and then reaching its decision which in this case was that i'd like to clarify a couple things st of all you're out of touch with respect to the question of whether mr hall had an opportunity to respond and submit evidence about this recalibration that absolutely not is seventeen which is the question did said that evidence and you know and mr the government is confused about that the reason why they're confused there's a site in their brief where they say well mr allen submitted the m twenty one dollars which is this supposed regulation that governs the hearing we didn't submit that and say this is what you have to do we said this is what you gave to the veterans court we're simply asking you to comply with the remain and that you asked the veterans court to do we'll never provide happened in february of twenty seven anything or nothing with your city is referred to an event in twenty seven february i think it was a march of two thousand and seventeen and what what is that i felt i'd have to go back and look your honor but we did not ever have an opportunity submit evidence about the recalibration because we didn't know what it was going to be we had no idea what the result was going to be we simply said twenty five dollars times to the day you have an obligation to do what you said you were going to do in the respond to it we've never had a chance to do that because they never did the recalibration until that decision came out not to a group of this year now your honor i want to point out too that we are not in any way arguing about that decision i'm not trying to suggest that that decision is before you i am trying to say that from the time of the mandate in two thousand and sixteen from the veterans court to the time that decision was issued that period of delay  hundred and seventeen days you want to mr hockey wants to argue whether some of that was attributable to to the mr hall we would contend no because we've never seen that the recalibration at all but that one thousand two hundred and seventeen dollars day period of time is an unreasonable delay and we've taken the position also that there was no argument that could be made that they responded to the sanctions argument if you look at every document that was submitted by the government to the court below mean they created this smoke and mirrors defense saying we're doing something essentially what they were doing was process but the process had nothing to do with the recalibration you will not see them once respond in any way to the idea that the recalibration was either required or was being done you will not see them respond to the specific sanctions for the fact that the recalibration was not done they basically were saying because we gave him process we are therefore not subject to sanctions and our position is the process had nothing to do with the recalibration it was a process that was smoke and mirrors will schedule it here i'm just so i understand so your view is the entitlement to sanctions is based on the delay in not doing movie calibration in part but is also based on their concession your honor because they never responded to the arguments about due process or the right to compliance with their remained as a matter of law or the sanctions for the specific act of not doing the recalibration those specific issues they never responded to in any way under any circumstances in the case below and our position would be that under the law of both of the court of veterans appeals court of appeals for veterans claims and this court those are absolute concessions because they never responded to him if you look at the paperwork you will not see a response that references the recalibration itself it's all of this other process so they were basically to cooking a kettle and smoke was coming up and they're blowing it to the court and saying we're doing what you said that we were supposed to do when in reality there was nothing like that and i'd like to end with this if i may your honor justice marshall in talking about the veteran's example that he gave in marbury vs madison said the following when the veterans name was were included on the report the congress that had it ordered if the secretary should refuse to do so would the wounded veteran be without remedy is it to be contended that where the law in precise terms in our particular case the remainder order excuse me directs the performance of an act in which an individual is interested the law is incapable of securing obedience to its mandate is it on account of the character of the person against whom the complaint is made is it to be contended that the heads of departments are not amenable to the laws of their country this is absolutely a rule of law question the court of appeals for veterans claims issued a decision it was not complied with by the secretary they are in contempt of court we respectfully request that you reverse the decision that you grant the sanctions approved and that you find that mr