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U.S. SUPREME COURT HEARS ORAL ARGUMENTS
IN VA
BENEFITS CLAIM CASE -- Peake v. Sanders will
decide
whether VA bears burden of proof that it informed
vet of information needed to process claim.
We have two stories. First is a brief look
at what happened in the Court. Second is a more in-depth look at the
case.
First story here...
http://jurist.law.pitt.e
du/paperchase/2008/12/supreme-court-
hears-veterans-benefits.php
Story below:
Your comments accepted at bottom of
page.
-------------------------
Supreme Court hears veterans benefits case
Jaclyn Belczyk
[JURIST] The US Supreme Court heard oral arguments Monday in two cases. In
Peake v. Sanders, the Court considered whether the US
 Department
of Veterans Affairs (VA) bears the burden of proof that it adequately
informed a veteran of the information needed to process a benefits claim
under the Veterans Claims Assistance Act (VCAA).
The case involves two veterans whose benefits
claims were denied. The US Court of Appeals for the Federal Circuit held
that the burden was on the VA to prove that notice was not prejudicial.
Counsel for petitioner the VA argued that "the uniform practice in the
courts of appeals [at the time the VCAA was enacted] was to place upon
challengers to agency action the burden of showing prejudice from the
error. And the Congress was well aware of that." Counsel for one of the
respondents, Patricia Simmons, argued that "it would be difficult for the
veteran and comparatively easy for the government to carry a burden."
-------------------------
Second story here...
http://www.scotusbl
og.com/wp/scotuswiki-preview-peake-v-sanders/
Story below:
-------------------------
SCOTUSwiki Preview: Peake v. Sanders
In advance of today’s argument in Peake v. Sanders (07-10374), Stanford
student Lisa Ehrlich prepared this write-up of the case for SCOTUSwiki.
Argument Preview
The Veterans Claims Assistance Act (VCAA) requires the Secretary of
Veterans Affairs to provide veterans who seek disability benefits with
notice of any additional information or evidence required to prove their
claims. On Monday, December 8, in No. 07-1209, Peake v. Sanders, the Court
will consider which party - the Department of Veterans Affairs or,
alternatively, the claimant - bears the burden of showing prejudice when
the VA fails to provide the notice required by the VCAA.
Background
This case stems from two veterans’ attempts to receive disability benefits
from the Veterans Administration. One respondent, Woodrow Sanders, served
in the Army from 1942 to 1945. Mr. Sanders asserts that during his service
a bazooka exploded near him, burning the right side of his face and
injuring his right eye. In 1948, he submitted a disability claim to the VA
regional office, which denied the claim the following year. In 1991,
Sanders sought to reopen his claim, relying on statements from two
ophthalmologists. The VA reopened the claim and obtained additional
evidence, including a report from a VA optometrist, but again ultimately
denied the claim.
Mr. Sanders appealed the decision to the Veterans Court, arguing that -
contrary to 38 U.S.C. § 5103(a) of the VCAA - the VA failed to provide him
with notice regarding who was responsible for obtaining the evidence
necessary to substantiate his claim. The notice required by the VCAA can
be divided into four elements: (1) notice of what
 information
or evidence is necessary to substantiate the claim; (2) notice of what
subset of the necessary information or evidence, if any, that the claimant
is to provide; (3) notice of what subset of the necessary information or
evidence, if any, that the VA will attempt to obtain; and (4) a general
notification that the claimant may submit any other evidence that he has
that may be relevant to the claim. In Mayfield v. Nicholson (2005), the
Veterans Court held that although the first type of notice error was
presumed prejudicial, the claimant was responsible for proving prejudice
from the other types of notice errors. The Veterans Court held that
because Mr. Sanders had not alleged either a “first-element” notice error
nor any specific prejudice resulting from the VA’s alleged failure to
provide notice, he had not met his burden and affirmed the denial. Mr.
Sanders appealed to the U.S. Court of Appeals for the Federal Circuit.
On appeal, the Federal Circuit reversed. Reasoning that the VCAA was
intended to be particularly pro-claimant and therefore obligated the VA to
assist veterans claiming benefits, it held that all VCAA-notice errors
should be presumed prejudicial, requiring reversal unless the VA can show
that the error did not affect the essential fairness of the adjudication.
The VA can show this by demonstrating: (1) that any defect was cured by
actual knowledge; (2) that a reasonable person could be expected to
understand from the notice what was needed; or (3) that a benefit could
not have been awarded as a matter of law. The Federal Circuit disagreed
with the Veterans Court precedent deeming certain elements of the required
notice more substantial than others. The court reasoned that allowing the
VA to remedy the errors with post-decisional notices cannot satisfy the
specific notification duties imposed by Congress on the VA, and presuming
no prejudice does just that. Finding that the interpretation of the
Veterans Court conflicted with the uniquely pro-claimant system
constructed by Congress in the VCAA, the Federal Circuit held all types of
notice errors would be presumed prejudicial.
Respondent Patricia Simmons served in the Navy from 1978 to 1980. In 1980
she filed an application for disability benefits for hearing loss in her
left ear that was caused by her constant exposure to a noisy work
environment. The regional office denied her claim on the ground that her
disability was not sufficiently severe, and the Board affirmed. In 1998,
Simmons asked the regional office to amend her claim to include a claim
based on hearing loss in her right ear, which the regional office denied
as unconnected to her service. The regional office sent Simmons a notice
purporting to outline the evidence required, but the Veterans Court found
that the letter failed to comply with the notice requirements because it
did not inform Simmons of the evidence and information necessary to
support her claim, specifically (1) that an increase in severity of her
service-related condition (the left-ear hearing loss) was required to
maintain a secondary claim of right-ear hearing loss; and (2) what types
of evidence or information were needed, or could be submitted to establish
that claim. The VA appealed to the Federal Circuit, which issued its
decision on the same day as its decision in Sanders above, and affirmed,
holding that in light of Sanders, the Veterans Court properly placed the
burden on the Secretary to prove that the notice was not prejudicial.
The Veterans Administration filed a petition for certiorari to the United
States Supreme Court seeking review of both decisions. The petition was
granted on June 16, 2008.
Petition for Certiorari
The VA articulates three justifications for granting the petition. First,
the VA argues that the Federal Circuit’s decision conflicts with the
decisions of other circuits interpreting materially identical language in
the APA. 38 U.S.C. § 7621(b)(2) requires the Veterans Court to “take due
account of the rule of prejudicial error,” which the government argues
parallels and draws upon the Administrative Procedure Act’s (APA)
prejudicial-error provision. The VA argues that other courts of appeals
have interpreted this provision to require the party seeking to overturn
an administrative decision to establish that the error was prejudicial,
even when the error involves a failure to provide the required notice. To
support this argument, the VA points to Congress’s use of a phrase already
having an established meaning under the APA (passed in 1946), along with
the use of the definite article “the” and the legislative history, to
conclude that Congress in the VCAA intended to adopt the APA’s
interpretation of the burdens. Finally, because the Federal Circuit has
exclusive jurisdiction to review decisions of the Veterans Court, the VA
notes that a circuit split relating specifically to VCAA-notice errors
cannot develop.
Second, the VA argues that there is no basis for creating a unique rule of
prejudicial error applicable only to VA adjudications. The VA challenges
the Federal Circuit’s characterization of the VCAA as overhauling the VA
claims system to make it even more claimant-friendly; in any event, it
emphasizes, even if the VCAA seeks to help veterans in the non-adversarial
administrative process, that is irrelevant when determining where to place
the burden of demonstrating prejudice in the ensuing adversarial judicial
process. Finally, it disputes the Federal Circuit’s reliance on the
harmless error standard established by the Supreme Court in Kotteakos v.
United States and O’Neal v. McAninch, reasoning that those criminal cases
deal with a potential loss of liberty rather than an administrative
adjudication of entitlement to monetary benefits.
Third, the VA contends that the question presented is important and
warrants review because the Federal Circuit’s rule will greatly increase
the number of remands, with the resulting additional notice and
re-adjudications “divert[ing] resources from the adjudication of
meritorious claims” and placing further strain on the VA’s
“already-burdened claims-administration process.”
Opposing certiorari, the respondents advance five arguments. Respondent
Sanders argues that O’Neal’s harmless error standard applies equally to
criminal and civil contexts, and that the rule of prejudicial error cannot
be divorced from the VA’s uniquely pro-claimant system.
Respondent Simmons also reiterates the importance of the pro-claimant
system and makes three other arguments. First, she argues that the APA’s
prejudicial error rule is flexible and context-specific. Simmons
challenges the VA’s characterization of the APA rule as unanimously
placing the burden of proving prejudice on the party asserting the error,
pointing to the flexibility of the direction for courts to take “due
account” of the rule, and instances of courts being “cautious,” proceeding
“gingerly,” and shifting the burden in applying the rule. Second, Simmons
argues that the consequences of the Federal Circuit approach are not
problematic: of the more than eight hundred thousand benefits claims filed
each year, only 4644 are ultimately appealed every year, so the risk of
overwhelming the system is minimal. Third and finally, Simmons argues that
the cases are inappropriate vehicles for the question.
Merits Briefing
In its brief on the merits, the VA makes three main arguments. First, it
argues that Section 7216(b)(2) should be construed consistently with
Section 706 of the APA, which is materially identical and which has been
interpreted as placing the burden on the party raising the claim. Relying
on the principle that when judicial interpretations have settled the
meaning of an existing statutory provision, repetition of the same
language in a new statute indicates the intent to incorporate those
interpretations, the VA argues that the Court should not read the similar
language of Section 7261(b)(2) to establish a new rule. Indeed, the VA
continues, the legislative history also demonstrates Congress’s
understanding that Section 7216(b)(2) would incorporate the APA meaning.
Second, the VA argues that the Federal Circuit erred in creating what it
characterizes as a “unique rule of prejudicial error applicable only to VA
adjudications.” Contrary to the Federal Circuit’s belief, the enactment of
the VCAA did not substantially overhaul the administration of the VA
benefits system: instead, the VCAA was enacted to overturn an earlier
Veterans Court decision regarding claim processing and neither mentioned
nor changed the language of Section 7261(b)(2). Nor does the
non-adversarial nature of VA proceedings justify placing the burden on the
VA, as the proceedings become adversarial when they reach the Veterans
Court. The VA also again challenges the Federal Circuit’s reliance on
Kotteakos and O’Neal, deeming them inapplicable because they deal with the
loss of liberty rather than purely economical benefits.
Third, the VA argues that a presumption of prejudice from VCAA notice
errors is unwarranted for two reasons. As an initial matter, the
collaborative and repetitive nature of the VA claims system means that
VCAA notice errors do not automatically produce prejudice, as claimants
will have several opportunities to learn what evidence is required before
they reach the Veterans Court. Moreover, a claimant is in a better
position than the VA to establish prejudice from a notice error because
she will know whether there was actual notice or more information on her
condition is available.
Respondent Sanders makes three principal arguments in support of the
Federal Circuit’s decision. First, he argues that Section 7261(b)(2)’s
reference to “the rule of prejudicial error” should be interpreted in
light of the federal common law’s harmless error rule, which places the
burden of persuasion for non-technical errors on respondents. Second,
Sanders argues that the “due account” clause of Section 7261(B)(2) and the
VCAA’s pro-claimant nature militate in favor of interpreting the burden to
fall on the VA: if the record is undeveloped as a result of notice errors,
the veteran will be unable to introduce into evidence on appeal
information necessary to prove prejudice. Third, notice is a substantial
right, the violation of which gives rise to presumed prejudice, and the
burden on the government is neither unfair nor insurmountable. Indeed, he
emphasizes, the notice problem cannot be cured through subsequent
procedures, while a series of recent cases demonstrate that the VA can in
fact show that a notice error is not prejudicial. Finally, Sanders
reiterates, any doubts regarding how to interpret the VCAA should be
resolved in the veteran’s favor.
Respondent Simmons makes two main arguments in defense of the Federal
Circuit’s decision. First, she argues that the purpose and structure of
the statute point in favor of allocating the burden to the VA: the overall
structure of the benefits scheme consistently imposes obligations on the
VA rather than the claimant, notice plays an important role in the entire
system, and the VA is better equipped to bear the burden. Second, Simmons
challenges both the VA’s contention that Section 7261(b)(2) ratified a
uniform interpretation of the APA and the underlying presumption that the
APA prejudicial error rule has only one uniform interpretation. She
emphasizes that the VA cites only four pre-1988 cases that purport to
interpret the APA rule as the VA would, indicating a distinct lack of
uniformity for Congress to ratify. Instead, like Sanders, she argues that
Section 7261(b)(2) refers to the federal common law’s harmless error rule.
Moreover, the text of the APA does not support the cut-and-dry
interpretation advanced by the VA, and in any event the language need not
be interpreted identically when the overall statutory schemes are not
identical. Finally, the background presumption in favor of claimants in
the VA system counsels against placing the burden on the veterans.
-------------------------
posted by Larry Scott
Founder and Editor
VA Watchdog dot Org
-------------------------
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