thank you your honor i may please the court st i'd like to acknowledge that mr connelly monk has travelled to be with us in court today thank you welcome to the court house we are here on behalf of the four hundred and seventy thousand disabled isn't it where is the commonality among for certainly what your honor the commonality is that all of these veterans are mired in a system of systemic delay the wal mart case requires a class members to ask a common matter at a certain point delay becomes per se on reasonable under but the remedy has to relate to because as we know your honor there are cases that have held for instance in the due process context that at six months the detention of a non citizen becomes a person a violation of the due process clause regardless of the reasons that the government or justification that the government may offer for that delay and similarly untracked the reasons for the government's delay are not a analysis which is the most important states that there must be a rule of reason that governs the agency to late but that looks to the length of the delay and whether the length is reasonable given for instance the complexity of the agency action not any particular cause that might lead to the action and it is plaintiff's legal theory that at a certain point the delay becomes unreasonable and that's the common question that this court when you look at the region that delay are you required to this is harmful government conduct that affects every single factor in the class every single veteran when they file an appeal or when they file their notice of disagreement is essentially told to get in line and wait and this is something that the v report has stated that veterans have to learn to live with that waiting there's no way to to escape that delay and that's what we mean by systemic your question about whether the harm is individualized plaint at this point to find commonality you only need to find that point that the delay becomes a person and recently at a certain point regardless of any individual eyes differences that may exist a veteran regardless of the veterans individual circumstances i point at which the delay becomes unreasonable is we submit the merits question not the question of whether there is commonality and if i could reference something that the government has represented the secretary as represented below and we cited as a peach two of our  secretary stated that under certain circumstances even a one hundred year delay could be reasonable and that simply cannot be the case it cannot be the case in a system where these are disabled veterans where one in fourteen veterans die waiting for a decision on their appeal that was true in the year two thousand and sixteen when one in fourteen of the cases resolved by the board of a trans appeals was a result of the veteran passing away and so in a system like that you can't be the case that there's no to two marriage type finding issue it's just saying that in this case we don't get to that how do you answer to that that's correct your honor argument is that the plane to that excuse me the c b c imposed a high en commonality standard that contravene the walmart standard below they require plaintiffs in this case to identify for instance specific practices and policies to identify the causes for the delay and nowhere are nowhere is that another is because files on moved from one place to another effectively that can be the role model but in the absence of some specificity where is that really your honor the remedy that adjudicate all appeals within a certain period of time and that's a single injunction that would apply to every single class member and that's relief that every class member would benefit  you know your honor this court has an independent responsibility to state when there is a violation of law whether it's a statutory violation or a constitutional violation and remedy that harm and the fact that legislative action may occur in the future is not a reason to not act and if i could reference of a mop which is congress ostensible solution to the systemic delay issue that does does nothing for the veterans who are waiting in the legacy system veterans in the legacy system will still have to wait in the current system which means that they are still going to be subject to multi year delays and the v a cannot offer a timetable for when it will resolve the legacy appeals at all and so this is not  there's no legislative solution whatever to the veteran who will do her own volition d besides for example in the up in the in the process to pursue a different claim or different argument every single stage is due to v a in action and that's something that this court judge more of this court recognized in her concurrence in martin that many of the delays at various stages of the process are simply inexplicable it takes five hundred d veterans perspective veterans are made to wait six almost six years for a decision and that's the legal harm that veterans are experiencing be commonality for cases that challenges a specific stage of the delay but our argument is that at a certain property entitle minute issue for the due process violation for instance is a decision on the appeal it is that is the legal harm and so regardless of whether there is commonality for a specific stage of the process there is certainly commonality for veterans who seek to actually have a decision of my decision from the board on their appeal and that's the actual legal harm that veterans are experiencing the process satisfy the commonality yes and i think that's our argument argument is that here are just as cases have found challenging for instance government conduct in the prisons can in the prison conditions two classes that there is a single injunction that remedies the harm and the injunction the plant that plant that the class member seek is that the v a adjudicate these appeals within a certain period of time that period of time is a question for the argument is that at a certain point it becomes unreasonable as a matter of law for all plaintiffs and that is the common question of the common answer that this court needs to find to find commonality the question of the remedy is a question that the court would reach that the c b c would two years ago was designed to address this very issue to provide lanes so that folks entering the system could decide whether they wanted a quick review which would not involve any further development or entertaining any further evidence that that individual might provide as opposed to the regular a more regular channel which would provide folks who wanted to provide additional evidence or one of another medical examination things that normally take a lot of time and this court said and martin were the kinds of things which needed to be taken into account during the st track factor analysis and would explain why it would be perfectly reasonable in some of those cases for a delay following those a discriminant to exceed two years so congress is very much involved the secretary is very much involved we just issued rules implementing the new appeal modernization act which have been challenged in this court will will will hear those so frankly in the words of the supreme court hackler when they were dealing with similar delays in the social security process what this court needs to keep in mind when determining whether some sort of class action relief is appropriate is this isn't something out there that people have been ignoring and suddenly we have a class it's a look we've got a problem and we need to bring attention to it this is a problem that this court is knows that the v a has been struggling with dealing with we sat right in our briefs for for a long time and we're taking every step we can to make sure that may be doing wasn't provide the answer to whether they have a proper class action yes so as the questioning this morning was addressing i mean wal mart does affect change it used to be you could come in have a common question require common remedy wal mart requires a common one stroke solution and if you want to call that a remedy it could be a remedy that but when you talk about remedy and the government talks about limiting that popping up by going to remedy that specifically tailored to find the class that applies to everybody whatever happens you're in the air even if for example during the year there is a good deal of medical work and so on with perhaps the evidence is rather than when you have for when the and history questions maybe this is a totally different situation a different class significantly more limited but also about trying to bring these activities to judicial attention well but meanwhile this has been in congress for quite a while and is it not and we haven't seen the resolution i mean to be fair to congress that that's a pretty it could be the situation in martin as opposed to as you described judge newman the situation which i would suspect and i don't have any empirical evidence but having practiced before this court these kinds of issues for a long time i would not be surprised if over fifty percent of the four hundred and seventy thousand dollars potential claimants in this case would prefer that they do not have a situation in which the court issues an order saying process that's that's that's your decision you still have two hundred and twenty five out of the that are true or delayed by a systematic process when you are at this stage of the game your honor analyzing the question of commonality of a class then what do we accomplished why do we go to the courts in the st place we go to the courts for remedies to solutions that we have the the remedy in this case can't be what judge allen suggested in his dissent at the end of the day but it can be a single gaining from the process you can't come in this is what the supreme court said exactly in fact or it doesn't that the fact that congress is actively engaged in the sector is actively engaged in trying to address systemic the laser which isn't a single process it's all kinds of things it's twenty five years of of congress the veterans administration and this court providing process the veterans provide this court providing the process now we have all kinds of process for these veterans and we have a system that is clocked and we need to address that and we know that congress knows that we're working together but we want to do it in a way that doesn't deprive people of process so when i suggest to your honor that the majority of four hundred and seventy thousand people who may like judge newman's example responding to the n o d with new wood new would they read the five thousand one hundred and four decision that they get and they say wait a minute why didn't i get my benefits i know i have that evidence they didn't i didn't understand that they were asking so they respond and they give him that evidence then you're right into the track one rule of reason question because the writ development that takes place at that point isn't minist they they have to do in every case and that's one of the actual problems with this particular class where you start the process at the end oh defiling and emerging from my answer a little but i'm demonstrating to the court how complicated this is and you ended up possibility provided by regulation for a decision review officer review it would be like judge newman was the yarrow and she issued a decision and when anybody comes in they say can i get a d r i want to train a look at you haven't had any time in this case is your brand new to the case time gets added to the plot these are all track one factors that this court has already held martin could merit delay well beyond a year in the process related to developing claims ok all of these people are before congress is aware of that so i was has been away and congress has not come up with the solution congress has not imposed a statutory requirement to issue a board decision within one year so now we know that the that the a better sport has authority to aggregate cases that brings us to this particular which this court reviews for an abuse of discretion and the lower court the court that would actually have to entertain this case and come up with a one strike solution found that they could not given the complexity of issues you disagree with your with d your friends on the other side that we could not come up with  reviewing a class decision so no i would say that so if we disagree we would have to vacate and remit you would send it back for consideration given whatever direction you provide which i suppose would be that you found that they abused their discretion and finding that the class was to one will be to result in one stroke relief as per the walmart decision we would submit that would be error because we think it's a straightforward application of wal mart in this case in fact i mean wal mart has the same kind of thing you could have labeled as the dissenters did employment hiring and discrimination practices but what what undergirded doc claim was a whole slew of role as class representatives you know what i'm asked wars is that i don't think so i think that i think that it's a class and then they can change representatives i mean if i'm wrong about that brief but the bottom line from our perspective is that because this court is reviewing the decision below from abuse of discretion the question really for this court is was a reasonable for that court to say that there were too balls in the air for this to satisfy the commonalities stand so you're sitting in review of that court which is already hell that there were too many balls in the air i think what we've done here this morning is to further demonstrate that there are a lot of balls in the air and many of those balls are of the kind that in martin would on their face not result in a finding of one reasonable ness within a year the nine hundred and twenty six dollars thing at a minimum well i think the problem here there's that they're just not being told well so the end of the day you have to determine whether this is the best mechanism and what are you going to get at the end of the day what is the one strong solution and if if your one solution is simply a pronouncement by the veterans court along the lines of judge allen's dissent which sat there is delays v a go do something about it then i don't think that that's anything that any of these class members really want i think what they want as they've demonstrated in and they've demonstrated an ability to do it in their godsey case is to focus on particularized practices that might be susceptible to some sort of relief like like you know for example because a perfect example of a class action would be the blue water folks and they're arguing about there's lots of them you know and they're arguing about where does the line get drawn and that's the kind of thing that that would be appropriate for class action but when you're talking about trying to satisfy all the track factors and you're talking about a class in which everyone is allowed to supplement the record and to react in there and no deed to why they think they were denied the claim and that very reaction precipitates further development by various bodies that's not the kind of thing that can satisfy with this complaint seeks which is a one year finding for unreasonable delay so just for clarification or i think you said that when we move in and if we were to remove re court needs to follow because this court has found land and beazley that i can address those basic factors that are articulated by a standard like commonality or what but when in trying to address those factors the court has to delve in to particular questions that are best left to the v a process like would be the normal things you would encounter in this sort of be a review the opposition will be a lot of the facts of the case that's where that the line stops and the court needs to accept what has already been sucked forth because it can't be overturned or really review those kinds of out cases a lot of back so it's a complicated maneuver but the court has provided guidelines in laghman beazley in how to do it aiding review of exactly how you found in your original month decision in two thousand and seventeen the core question that we are here on is did the veterans court make a legal er construing the commonality requirement under rule twenty three that's it that's the question we say they erred why because judge laurie they said the petitioners have to identify a specific practice or procedure we think judge allen was correct judge show and the three judges who agreed with her misconstrued our petition our petition sa and you're worse off you presented some examples of delay which cannot be justified but we also know that there are many thousands of cases less ambitious yes and less prone to just been around workable that perhaps there is room for some sort of legal judicial pressure specifically they felt it was unworkable your honor you are voicing misgivings about the merits of our claim you and perhaps others do not like the one year eat it we understand that we asked for we have construed this as a period of delay that is unreasonable person that if one year is too short surely four years is too long and the writ is to tell the secretary what you're asking for you haven't built into your clothes you need to group the school year and respectfully i disagree if you go back to our corrected amended petition i don't want us to blur the class definition and our request on the merits our class definition said each member must have waited more than twelve months from the end of the to the board decision if you look at the merits of our constitutional due process playing and our own reasonable delay we actually say four nine years is excessive and unreasonably too long under the constitution and under the statute we were there but that is what you asked for your your honor we asked in our prayer for relief for a remedy to tell the secretary to a judge issued decisions within one year from the end of a date you are one hundred percent right on that that was the scope of our  we are here right now on commonality did we raise a question that can be answered yes or no in one stroke you all may say you've raised a common question is one year unconstitutionally and statut too long and the answer counselors is no it's not you don't like our question we fail in unison that's what and jan said is there a question that you rise you prevail or fail in unison i would respectfully submit that we hit our hurt at this point we have satisfied the commonality requirement by posing that categorical question again you might not like our merits categorical question but we thought that there had to be a particular practice or procedure within the overall appellate process the federal circuit has told us that that was over reading wal mart for the veterans context we now have their guidance there has to be together with the veterans court here the c a b c for the for time ever announced the standard that it would utilize it said we will employ rule twenty three dollars but then unfortunately from our perspective they went to drift they said we're also going to borrow the walmart standard for veterans cases asserting systemic delay and that's where we differ because they had title seven with an animist so i enter a requirement we do not under either the due process or under the track factor have to show at a intentional culpable mental mens rea on behalf of the v a so where is difference for us to decide complaint as i articulated in the merit section talks about the overall period of at that point four point nine years to when your complaint talks about one year and then we say the remedy should be one year i'm not saying that you should give us seventeen bites at the apple what i am saying is that the single issue we are here on now is did the veterans court accurately legally construe the commonality requirement and unfortunately they did not that's the legal error that needs to be corrected because otherwise every other forthcoming petition is going to be decided under that plurality requirement of identifying a particular policy now experience of waiting seven hundred and thirty three dollars days for certification that was deemed per se unreasonable so they chose a subsegment and you have each focused on difference sub segments of the appellate process what we have said is if you bring your lens up higher you can look at the entire five to six year process and say that five to six year process is unreasonable per said i think we