Veteranclaims’s Blog

July 10, 2012

Acevedo v. Shinseki, No. 10-3402; Citation Solely for Persuassive Value

Excerpt from Decision below:
“In light of this Court’s unique ability to issue nonprecedential single judge memorandum decisions, a practice that results in over 1500 nonprecedential decisions each year, and each of these decisions is rendered as a single-judge disposition based on existing precedents (which can be cited), the Court declines to relax its historic practice of prohibiting the citation of such decisions.”

Excerpt from Dissent below:
“The majority grant the Secretary’s motion to strike the appellant’s
citation in his brief to a nonprecedential decision of the Court even though it was cited solely for its persuasive value because they believe such citation is prohibited by Rule 30 of our Court’s Rules of Practice and Procedure.”

“However, our Rule explicitly prohibits citing a single-judge decision as
precedent and contains no specific prohibition to citing such decision for its persuasive value. U.S. VET. APP. R. 30(a).”

“See FEDERAL RULE OF APPELLATE PROCEDURE (FRAP), Rule 32.1 (“A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been: (I) designated as ‘unpublished,’ ‘not for publication,’ ‘non-precedential,’ ‘not precedent,’ or the like . . . .”). Although we are not bound by the FRAP, it certainly seems quite bizarre – Alice in Wonderland like – that the Supreme Court sanctions the citing of our single-judge decisions in the other federal courts, but the majority deem such citation – even for persuasive value – prohibited in the very Court on which the single-judges sit. L. Carroll, Alice in Wonderland and Through the Looking Glass 198 (Messner 1982) (Alice stating: “It would be so nice if something would make sense for a change.”).”
==========================
—————————————————-

Designated for electronic publication only.
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-3402
BERNADINE ACEVEDO,
V.
APPELLANT,
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS,
APPELLEE.

Before KASOLD, Chief Judge, and MOORMAN and LANCE, Judges.
ORDER
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

On April 24, 2012, the appellant filed a letter concerning a non-
precedential decision from this Court. That same day, the Secretaryfiled a motion to strike the letter pursuant to Rule 30 of this Court’s Rules of Practice and Procedure. U.S. VET. APP. R. 30(a). The appellant opposed the
Secretary’s motion.
In the April 24, 2012, letter, the appellant cites to Page v. Shinseki, No.
11-684, slip op. at 3-4 (Vet. App. Apr. 23, 2012), and argues that “circumstances that arose in Page concerning the applicability of the recently-amended 38 C.F.R. § 3.304(f)(3) are present” in the case here on appeal.
She further states that this material is submitted not as precedential
authority, but for persuasive effect.
Citation of nonprecedential decisions is proscribed by Rule 30. MacKlem v.
Shinseki, 24 Vet.App. 63, 70 (2010). Although our dissenting colleague references the Federal Rules of Appellate Procedure, this Court is not bound by those rules but has the authority to set its own rules. 38 U.S.C. § 7264(a); see Bailey v. West, 160 F.3d 1360, 1367 (Fed. Cir. 1998) (en banc) (stating that the Federal Rules of Appellate Procedure are inapplicable to this Court); Bove v. Shinseki, 25 Vet.App. 136, 142 (2011). In light of this Court’s unique ability to issue nonprecedential single judge memorandum decisions, a practice that results in over 1500 nonprecedential decisions each year, and each of these decisions is rendered as a single-judge disposition based on existing precedents (which can be cited), the Court declines to relax its historic practice of prohibiting the citation of such decisions. Therefore, the Court will grant the Secretary’s motion to strike.
Upon consideration of the foregoing, it is

ORDERED that the Secretary’s April 24, 2012, motion to strike is GRANTED.
DATED: June 27, 2012

KASOLD, Chief Judge, dissenting.
The majority grant the Secretary’s motion to strike the appellant’s
citation in his brief to a nonprecedential decision of the Court even though it was cited solely for its persuasive value because they believe such citation is prohibited by Rule 30 of our Court’s Rules of Practice and Procedure.

However, our Rule explicitly prohibits citing a single-judge decision as
precedent and contains no specific prohibition to citing such decision for its persuasive value. U.S. VET. APP. R. 30(a).

Although the majority relyon MacKlem v. Shinseki, 24 Vet.App. 63, 70 (2010
), as authority for their view that the Court has had an “historic practice of prohibiting the citation of such decisions,” MacKlem was issued fairly recently in the history of the Court and only broadly states that “citation to nonprecedential opinions is not permitted by the Court’s Rules of Practice and Procedure,” without any specific explanation why the citation in that case was not permitted. This broad statement, however, is followed by the specific quote from Rule 30 that a party “may not cite
as precedent any action designated as nonprecedential by the Court” (
emphasis added), leading one to conclude that the nonprecedential opinion cited in MacKlem must have been cited for its precedential value. Moreover, it cannot be questioned that MacKlem is overly broad in its pronouncement that nonprecedential opinions may never be cited; indeed, Rule 30 explicitly allows citation of such opinions even for precedential value, when relevant to the application of the law of the case. U.S. VET. APP. R. 30(a).
I see no basis for reading into our Rule 30 a prohibition that otherwise
clearly does not exist, particularly when any and all of our Rules are subject to suspension at any time for good cause. U.S. VET. APP. R. 2. I also note that the majority’s reference to 1500 non-precedential, single-judge decisions being issued each year as the rationale for rejecting the appellant’s reference to a single-judge decision for its persuasive value is singularly unpersuasive, given that any and all of the thousands of non-precedential decisions issued by other courts, including our own, may be cited in briefing before the other federal appellate courts. See FEDERAL RULE OF APPELLATE PROCEDURE (FRAP), Rule 32.1 (“A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been: (I) designated as ‘unpublished,’ ‘not for publication,’ ‘non-precedential,’ ‘not precedent,’ or the like . . . .”). Although we are not bound by the FRAP, it certainly seems quite bizarre – Alice in Wonderland like – that the Supreme Court sanctions the citing of our single-judge decisions in the other federal courts, but the majority deem such citation – even for persuasive value – prohibited in the very Court on which the single-judges sit. L. Carroll, Alice in Wonderland and Through the Looking Glass 198 (Messner 1982) (Alice stating: “It would be so nice if something would make sense for a change.”).
PER CURIAM.
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