mr smith you may begin when you're ready of bad faith the secretary kerry's this burden of proof whether a party is able to carry that burden or whether the sufficiency of evidence is sufficient to meet that burden is a secondary and distinct legal question beyond that  that in light of raising a lot of the facts of this case there is a clear too clear distinguishing factor is a between some of the cases of the court has analyzed before and the cases that are how are we split with you would need us to conclude that this was clearly a legal issue of not assigning the appropriate word to the side to the appropriate party and it's kind of hard at least for me to see that ask you the it seems to me correct me if this is if you have a different view of the matter it seems to me that burden of proof allocation assuming you're dealing with just a preponderance test and you're not dealing with them some special burden of proof is a different kettle of fish but it really has effect in a litigator only in two respects one is in the  whether a particular case can be disposed of summarily such as in summary judgment the burden of proof very important because the party with the burden of proof is more of an obligation to come forward with enough to make a right if they should cases that are it's the same thing may be true in effect by the replication that summary adjudication process at the point at which the cases is subject to a motion to dismiss during that to the trial but setting that aside you've got a proceeding like this which is not summary and which is based on a full evidentiary record seems to me that in that setting the burden of proof has pertinence only in telling you who wins if the evidence is in the points or in the veterans situation we know that in a situation but but typically the burden of proof is as it's sometimes described just as being the risk of non persuasion that's all it does other than that  failure to be able to trade it is for you to make the payments focusing on you have to prove to us a change in circumstances essentially presuming that from the evidence that was before them because they were imposing in effect too much of a burden on him i e they were drawing inferences from his failure to make a more convincing account of the evidence in the case that seems like sufficient a different view what if the this this court says explicitly the allocation of burden of proof is on the secretary and a tribunal lower and it says in making bodies says well we are going to we want to say we're doing this but we're going to allocate it to the other party by stating that this is an admission of a lot of facts they could effectively ignore ordered should shift the burden of at this level i believe that that goes too far i believe that looking at the initial allocation of the burden of proof and looking at whether a court applied that properly is separate and distinct and  law is drawn i gree it is a difficult one to draw but i get looking at the decision looking at not just one or two that the big case as a whole i think is very clear that it focuses on what this is better and it is able to fair or on able to prove and i've had to believe that is the distinction that we would argue separates this case from the very various of the of the precedence that the federal different and that the interests are much different in a case of bad faith as i mentioned earlier that this is not just a purely financial matter this is not whether or not mr b sc a gets x amount of dollars and has a civility or is able to have a deadness waive the finding of bad faith is a personal affront to somebody and for a veteran of or somebody who tried as hard as they could to keep this house out of foreclosure to not only say we're not going please the court this court does not possess jurisdiction to entertain this appeal although petitioner purports to purports to challenge allege burden shifting on the part of the board of veterans appeals in reality what he's asking this court to do is t second guess the factual determinations made by the board as well as the board's applications of law to fact and this court just doesn't possess jurisdiction to do so now mr bruce kaye cites three examples of alleged burden shifting on the part of the board the first those relates the board's finding that he continued to collect and retain rent all the property is in foreclosure and mr bruce kaye alleges that the board shifted the burden of proof with respect to this issue by summarily dismissing his own sworn and instead crediting the statement of a tenant who said that she continued to pay rent to mr bruce kaye in april of one thousand nine hundred four when the property was in foreclosure so in other words what he objects to is the board's finding that his own testimony was incredible and the statement of his tenant was credible and as we point out in our brief this court doesn't possess jurisdiction to reconsider credibility determinations that were made by the board furthermore in the sailing the board's credibility determination kaye also challenges the board's weighing of the evidence and what he says is that here the evidence was an echo poisoned therefore the court should have given the benefit of the doubt to his own evidence but again this court as we pointed out in our brief does not possess jurisdiction to consider claims based upon the board and this weighing the evidence now tellingly mr bruce kaye didn't address either of these arguments in his reply and that's because he has no good response to them his second example of alleged burden shifting relates to the board finding that he had the apparent ability to make his mortgage payments yet elected not to do so and what mr bruce kaye claims is that the board simply assumed that he could make those payments and required him to show a change in circumstances again when you take a look at this claim it's clear that he's not raising a claim of legal error he doesn't cite any criminal aiding statement made by the board indicating that it was putting the burden of proof on him with respect to this issue in fact he conveniently omits the affirmative evidence in this regard that was presented by the secretary namely that for the five years leading up to june of one thousand nine hundred three mr bruce kaye was actually able to make his monthly mortgage payment instead mr bruce kaye challenges this by citing his taxable income from one thousand nine hundred three in one thousand nine hundred four and saying that these facts establish that he was on the able to make his monthly mortgage payment but again the board has already considered the competing evidence that was presented on this issue it weighed that evidence and determined that the affirmative evidence outweighed the evidence presented by mr bruce kaye this wasn't a shifting of a burden of proof and merely by presenting facts now that he says should have resulted in the board concluding otherwise but again this court doesn't possess jurisdiction to second guess that factual determination or really weigh the factual evidence at this point similarly with respect to mr busquets third allegation of alleged burden shifting this relates to the board's finding that he made only nominal efforts to sell his house to keep the property out of foreclosure but mr bruce kaye says is that the board simply assumed that he had the fire natural ability to sell his house and required him to disprove that conclusion well again he doesn't cite any incriminating statement that was made by the board indicating that it was placing the burden of proof with respect to this issue on him and again what he does is he cites a bunch of highly facts pacific evidence and says that based upon this is clear that he couldn't afford to sell his house well again the board is already weighed the competing evidence on this issue and this court can't really weigh that evidence or second guess the board's conclusion so therefore this court does not possess jurisdiction to entertain mr bruce case appeal and should dismiss it however suppose that the board outset of its opinion in britain exactly the same opinion but at the outset of the union it sent the burden of the issue of bad faith falls on mr  circumstances in this case why would it make a difference if the board having said the burden of proof is on mr skag then went through the analysis and came to the conclusion that by a preponderance of the evidence with respect to each of mr bruce case claims we'd be competing evidence both the affirmative evidence that was presented by the secretary and the evidence presented by mr bruce kaye and found that the affirmative evidence carried the day now had they made the statement that they were placing even if this court were to find that it does possess jurisdiction that attend this appeal again mr bruce k would still not be entitled to relief and again when you take a look at each of these claims with respect to each of these issues it's clear that the board actually read the evidence properly require the secretary to provide affirmative evidence that mr bruce kaye first of all collected in retained red secondly that mr bruce kaye had the apparent ability to make his monthly mortgage payment yet did not do so and with respect to the third issue that isn't even one of the three bases that the board cited for its conclusion that mr bruce kaye acted in bad faith that the third issue of course is mr kaye only made nominal efforts to sell this house or again that's not one of the three bases for the board's finding that he acted in bad faith those three bases where the mr bruce kaye failed to take advantage of opportunities provided by the note holder and payments yet not making them so even if this court did shift the burden of proof to respect the issue of whether mr bruce kaye only made nominal efforts to sell this house that would be at worst harmless error because it didn't factor into the board's finding a bad fa kaye also has a waiver problem with respect to the as a waiver problem with respect to the issue of whether he had the apparent ability to make his monthly mortgage payment and whether his his efforts to sell the house were only nominal because as we pointed out again in our briefs he did not raise this burden shifting the issue in front of the court of appeals for veterans claims and although mr mr bruce k actually concedes that he did not explicitly make it but he says that he did mention that  made arguments with respect to having to prove certain things and disprove others but again you need to do more than simply say the words prove and disprove in order to raise a burden shifting claim so for the foregoing bring itself into distressed action by eliminating bad points in its opinion that a fight is justice is not about having words saying that what you did or did not do in an opinion below it is about looking at the case th sell are not just factual determination but they are clear indications of the court looking at this case through the lens of what can mr bruce kaye show us not what  is praise the entire case which is why this is a legal issue the definition of burden of proof is a initial fundamental determination that the court makes it applies and shades the entirety of litigation and will eventually