non veteran who served his country in the air force it's been nearly ten years since mr moat st disability benefits from the v a and mrs notice carrying on his struggle two years ago in the this court should make clear that it meant what it said in part and reverse the judgment of can i just interrupt you to ask you because what's a little confusing around maybe unusual maybe not unusual is the fact that we've only almost got kind of parallel proceedings and that's certainly understandable that you or your co counsel are representing  moat and there are proceedings sort of ongoing now before the so i guess i'd just like you to comment on that i mean that makes it a little difficult you're asking us or you're asking under the mandamus petition to have the board issue an opinion within a period of time does that preclude or is that any way affected by the fact that counsel before the an explicit request for further development to do more directly address your question about whether the parallel proceedings and the activities going on at the all real level are relevant i agree that those are factors that could be considered in the martin analysis but the fundamental point of martin and the reason this court in martin rejected the case stands a standard that the cia had been using was that at some point enough is enough and even if the secretary is talking about nearly seven years since the beginning of this appeal and although i will grant that the secretary has taken some steps to resolve the case we believe she's at the point where she is entitled to relief on her mandamus petition and that is either let me ask you let me ask you about that really i'm sorry to interrupt but maybe we're going there but does that relief necessarily preclude that we mandate all screw simply a decision a decision within a specific period of for some kind of judicial oversight the request in the petition was for a status report from the v a every thirty days until a reasoned decision issued and we know from the course of this litigation that that sort of judicial oversight can be critical in prompting action from the v a the only reason in this case that mrs note after three years of waiting was scheduled for a travel board hearing is because the ca v c asked the secretary to provide an update on this is case the status of the case on the same day that that status update was provided the v a scheduled the hearing so that relief is really critical to getting machismo to the conclusion of her case after so many years the ask you bring you back to the more i think you are going to start which webb was whether or not to see a b c conduct inappropriate inquiry with respect to the track that and i can ask the government about this because i'm a little unclear on their position which is they didn't have to because the c a v he found this because of the hearing and premature because of the other stuff or whether they did provide significant stansell analysis of the track  scheduling of the hearing they have now changed their position to the holding of the hearing moots misses most claim but they are also are doing the analysis that the ca v c performed was sufficient on its own even in light of martin and i would respectfully submit that the granting or denying her benefits claim she also requested judicial oversight in the form of a court order compelling secretary to provide updates on the status of the case every thirty days until the reasoned decision issue which is most did not receive any of those things all that she got was an order from the e p a reminding for additional proceedings to collect additional evidence that we would submit that those remaining proceedings really were not necessary because the evidence in the record is more than sufficient to grant service connection but setting that aside the fact that this is most got that remained order does not change the fact that she did not receive a reasoned decision and in fact the secretary concedes in footnote five of his brief remand order like the one this is most got it's not even of sufficient moment to qualify as a decision that would be reviewable by the c d c or this court so the suggestion that after seven years of of waiting this is no is somehow got mrs note has to wait until the secretary is done with everything relating to the hearing and then at that point she could file a separate writ and start all proceedings read all over again and i don't think that's correct if you look at the delay that mrs his experience even at the point where we were before the c d c that delay is significantly longer than delays other courts and found to be unreasonable similar circumstances and so i think the court can look at the entire the way that mrs motors experienced in applying the martin analysis conclude that the delay has been unreasonable and she's entitled to maintain your honor i'm happy to go through each of the martin factors one by want to quickly interested i do think that the majority of the dispute between the parties on martin is over the application of the st martin factor which asks whether the time that it takes to make a i understand that the secretary has suggested there are resource limitations that prevent holding hearings before the travel board as expeditiously as the secretary might want but you even granting that again there's no explanation in the record for why it took three council can you hear me this is judge i just i wanted to know if you could answer just questions related to what you just said which is do you have a sense for what typical and not a time is that an veteran who chooses a travel hearing would have to wait and see are there are statistics like that available that you're aware of your honor the statistics that i'm aware of are not specific to the travel board there they relate to  on average i think it's more than a year miss acres maybe better position to answer exactly what the current statistics look like there is also the fact that once the hearing occurs many of those hearings result in remains as was the case and misses most cases and those remands themselves add significant time secretaries and statistics suggest that a remained after hearing adds on average four hundred and sixty seven dollars days to the appeal process and that's not delays and as i said before some of the plays that this is not his experience have nothing to do with the hearing quest the points of the statement of the case and in this case took three years and three months which is more than double the amount of time that it normally takes the secretary to complete that step of the process so from the very outset this is most appeal has been delayed and i heard the buzzer go off the court doesn't have any further questions or reserve the balance of my time hearing decision to not and mrs moats petition for a mandamus and this appeal has received the relief that she saw in her petition which was a board decision and that fact is the end of the life controversy and this case and therefore the case is moot now mrs meller argues that the board decision that she received which was a real man isn't the type of your decision she wanted she either wanted a rich to issue a decision concerning her claims is premature is the c a b c saying not that the nd level proceeding is going on they don't have the it will not be right until conceivably two or three or four years from now we ultimately get a decision coming out of this case what  i mean i think we have deals with her past delay use and the need to put some timetable on going forward and what i read understand the government to be saying is we know mandamus which was seeking an immediate four decision and in conflict with her request for that extraordinary remedy was her simultaneous request for a travel board hearing that was pending so taking into account mrs moat stated interest that on one hand she said there was more evidence to be a listed before she wanted a decision that's why she wanted to travel  hearing on the other hand she wanted an immediate decision and so i believe that this the a b c it was saying that her request for an immediate decision is premature because there was a predecessor step in the well wait a minute given the current status we're going to have a thirty day monitoring thirty days apiece and we're going to put a timeframe sixty days for the remain and sixty days for the board after the remaining just concluded i mean they weren't necessarily reasonable timetable given the request for a travel here and right i agree with that your honor with the caviar that although this the a b c could have fashioned a remedy that was not requested by the parties it's certainly not an abuse of discretion for the c b c not to do something that was never requested by mrs moat now she's asking for an immediate decision and of this case perhaps your honor the request for a progress report was not premature but we believe that that is sort of ancillary relief that she was seeking an attempt to get the real relief that she wanted which was a board decision and that we are what's your answer to my earlier question i'm sorry to interrupt but the time is constrained the both the c a b c would clearly have authority would they not to not accept the precise relief that she was requesting in terms of when the board decision would issue but to extend it or to modify based on this circumstance on the ground that clearly would been within their authority correct i believe your honor that the court has ordered you to skosh an appropriate remedy however i am not one hundred percent sure on the case law as it relates to the veterans court for that and i would just again remind your honor that even if a court can do something under an abuse of discretion standard the fact that the court doesn't do it  having taken place and it's almost as though we didn't write more so i feel like that i'll be honest with you i feel like that is itself an abuse of discretion not to have performed precisely and exactly the analysis that we said needed to be performed when we remembered this case last time understood your honor the court remey ended for the veterans court to consider the traditional mandamus requirement which are the cheney factors as determined that cheney factor three whether under the circumstances was appropriate was not met there was really no need for the court to go on and provide further analysis another factor when in fact all three factors must be met so i understand your concerns that little inclosed talking about the track factors but the cheney factors still governs about trance court analysis that i'm sorry go ahead sorry no problem you can certainly gather from the court's analysis that they were grappling with what the track factors are aims to look at for example the truck factors take note of the veterans interest and that's certainly what the a d c was looking out when it was analyzing this request for mandamus so i agree that the court didn't go factor by saying they didn't have to get to the track factors because track the track factors are one of the three cheney factors and if the other two cheney factors aren't match then they never had to review the track factors and that's what i understand your argument to be what is the cheney factor  under the circumstances this is appropriate and to your point judge more about the court perhaps abusing its discretion by simply not applying the track factors i would just note that in the tract case itself that forced these factors for the st time the court didn't go through one by one to analyze the track factors it said the circumstances are such that we don't need to do the test here even though if it correct all right i got correct and just the point there is that it's not an abuse of discretion for the court not to go to line by line through all of the factors if the cheney test is not met which also applies of course the track factors are in or excuse me the cheney test is informed by the track factors but all three cheney requirements must be met and the court here found that mandamus was appropriate under the circumstances there was no abuse of discretion we would assert to though that the court doesn't even need to get to the merits of this case because of the movement and the important point on the moon is here and what's notably missing from this case is what remedy mrs moat now seeks given as we explained in our july st response to this court's request regarding an update of the case there has been a lot of action that has moche choice to have traveled or hearing what is the typical or average time and show a travel board hearing when a veteran chooses a travel board hearing your honor i don't have the answer off the top of my head but i do have some information that might be helpful for you the travel board is of course the judges going around the country so they have to get on the flight and all of that there are about ninety judges and they conduct  i i'm just wondering is there a resource on where that you could point me to i could find that information and submit a letter to the court i just don't have it in front of me so i'm not sure where to point  you but the travel board's hearing if there are more requests than capacity is just a st come st serve basis and so it's not as though mrs moat is waiting far longer than any other veteran or a veteran family member if there are more requests than capacity she has to wait in line like everyone else and like council i think that goes to sort of the heart of what we expressed concern about in martin which was just the exorbitant amount of time to perform even ministerial tasks and i'm not suggesting a hearing itself is ministerial but but there were a team martin there were so many examples of things that took years and years it could have been done in a matter of minutes and i understand that you're saying oh well but it takes years and years for everyone and i just don't see how that's an excuse i don't see how that's a response to a request which is the agency isn't doing its job and giving me a decision in a reasonable amount of time i understand your concern judge moore i would note that although the travel board's hearing does take a significant amount of time to get scheduled there are other resources for the veteran or their family member for example there is an option for video conference rather than having the judge get on a plane and fly to the claimant that was offered to mrs on four separate occasions but she wanted the in person hearing which is of course her right but it's not as though there was no way to speed this up and the v a has taken steps to increase its video conferencing capabilities in the past and so the delay here i'll just finish my sentence and then be done the delay here was not some sort of ministerial or clerical act that the v a was just refusing to move on there are real resource personnel limitations that the v a has sought to remedy through video conferencing but mrs moat didn't want to take advantage of that which of course is her right but then there are consequences resulting in this the lay thank that the c b c never bothered to analyze martin in the st place as judge moore goaded it seems almost like the c b c ignored the existence of martin and sadly that is a very common outcome in these sorts of cases i am aware is one option available to the court the other option that is available to the court on the mandamus issue is i believe to actually explain how the market analysis would apply in those circumstances t sectors isn't there so there's so much involved in terms of factual analysis or understanding of the the circumstances that it just seems very inconsistent with what we appellate courts actually perform the analysis required by martin would be would be another option one of the things i don't understand about this case is is why the lower court decided to deny mandamus to the extent that unlikely remedy but the oversight given that this case has taken over nine years look we all know when someone is looking over your shoulder you're going to eat your cookies so you know you're going to be better behaved  is an equitable remedy it's inherently flexible the c b c could have taken consideration what the appropriate relief would be in these circumstances and fail to do that so for those reasons we hear a disagreement just a let me follow up on that i'm sorry because the government i don't know if she was absolutely definitive but was suggesting that if the c a b c didn't think this final decision by the board in thirty days that you were requesting was feasible then they couldn't fashion another remedy i'm hearing you say that of course they could in the circumstances that the ground exactly runners of course the court has wide discretion to fashion a remedy that happens in many many cases where the court thinks didn't you also give the the c d c alternatives which was please order them to issue a board decision either thumbs up or thumbs down within thirty days or in the alternative please exercise oversight  form of you know status updates every thirty days to make sure things are proceeding wasn't that part of your argument to the c b c that's absolutely correct your honor that was explicitly her petition it was briefed to the c b c and the court never even considered that option  so it's not a matter of even asking them to fashion an alternative you actually gave them to discrete alternatives they addressed one and ignored entirely the other that's  did you i just want to ask one other quick question and i'm sorry if you could be brief but did you have any response to the government's analysis of didn't really have to do the track factors because the cine and they reach that st and therefore the track factors all the court could always simply say i for whatever reason in my discretion decide made a mess is not appropriate so the reason that the track analysis exists to channel the discretion and decide when it is appropriate or word mandamus relief and those