Veteranclaims’s Blog

November 21, 2012

Pitts v. Shinseki, No. 2011-7182, Decided: November 20, 2012; Constitutional Right to Representation at Veterans Court

Excerpt from decision below:
“We hold that the Constitution does not guarantee effective representation
of counsel in connection with veterans’ benefits appeals before the CAVC.”

“In sum, we hold that the right to the effective assistance of counsel does not apply to proceedings before the CAVC. In determining the scope of the constitutional right to the effective assistance of counsel in civil cases,
the courts have consistently held that where only property interests are at stake, there is no due process right to the effective assistance of counsel, regardless of how unique or important the property rights in question may
be. Proceedings in veterans’ benefits cases are of course important to the claimants, but they are directed at the adjudication of property claims, not liberty interests.
Based on that distinction, and the long line of precedents refusing to extend the constitutional right to counsel to benefits proceedings of that type, we reject Mr. Pitts’s contention that he is entitled to relief on appeal based on
what he characterizes as ineffective assistance by his lawyer while representing him before the CAVC.”
===========================

United States Court of Appeals for the Federal Circuit
__________________________
ERNEST PITTS, JR.,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7182
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 09-4560, Judge Alan G. Lance, Sr.
___________________________
Decided: November 20, 2012
___________________________
MIGUEL F. EATON, Jones Day, of Washington, DC, argued
for claimant-appellant. With him on the brief was
LUKE A. SOBOTA.
JESSICA TOPLIN, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondentappellee.
With her on the brief were STUART F. DELERY,
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and MARTIN F. HOCKEY, JR., Assistant Director.
PITTS v. SHINSEKI
2

Of counsel on the brief were DAVID J. BARRANS, Deputy
Assistant General Counsel, and BRIAN D. GRIFFIN, Attorney,
United States Department of Veterans Affairs, of
Washington, DC. Of counsel was Y. KEN LEE, Attorney.
__________________________
Before BRYSON, DYK, and PROST, Circuit Judges.
BRYSON, Circuit Judge.
Ernest Pitts, Jr., a veteran, claims entitlement to disability
benefits from the Department of Veterans Affairs
(“DVA”) based on post-traumatic stress syndrome
(“PTSD”), a psychiatric disorder other than PTSD, a sinus
disorder, and a skin disorder, all of which he contends are
service-connected conditions. He was represented by
counsel before the Court of Appeals for Veterans Claims
(“CAVC”), which upheld a ruling of the Board of Veterans’
Appeals rejecting his claims.
On appeal to this court, Mr. Pitts argues that his lawyer
provided him inadequate representation in the CAVC
and in so doing deprived him of his constitutional right to
effective assistance of counsel before that court. We hold
that the Constitution does not guarantee effective representation
of counsel in connection with veterans’ benefits
appeals before the CAVC.
I
Mr. Pitts was in active military service between 1971
and 1974. Following his honorable discharge he filed
claims seeking service connection for a psychiatric disorder
and a lower back injury. A DVA regional office denied
those claims in 1978, and the Board of Veterans’ Appeals
upheld that denial in 1983. In 1992, Mr. Pitts filed a
claim seeking service connection for PTSD, and during
PITTS v. SHINSEKI
3

the same year he sought to reopen his claim for a lower
back injury. The regional office denied both claims.
Those decisions became final when Mr. Pitts did not seek
review by the Board of Veterans’ Appeals.
In 1999, Mr. Pitts filed claims seeking service connection
for sinusitis and a skin disorder. He also sought to
reopen his earlier claims and submitted additional evidence
of service connection for those disabilities. The
regional office, however, determined that he had failed to
show service connection for his newly claimed disabilities
and that he had failed to submit new and material evidence
sufficient to warrant reopening his previously
denied claims.
The Board of Veterans’ Appeals in 2005 upheld the
regional office’s decision with respect to all of Mr. Pitts’s
claims. The Board found that the evidence did not show
that either his sinus condition or his skin condition was
related to his military service. As to his request to reopen
his earlier claims, the Board considered his newly submitted
evidence, which consisted of certain medical records
as well as his own statements and those of a family
member asserting that his disabilities were service related.
The Board found his submissions insufficient to
disturb its previous rulings that (1) his lower back condition
resulted not from service but from a post-service
work-related injury; (2) there was no evidence that his
psychiatric disorder other than PTSD was linked to his
service; and (3) his PTSD claim was not shown to be
service connected because there was no evidence of an inservice
stressor.
When Mr. Pitts appealed that decision to the CAVC,
the parties filed a joint motion to vacate and remand to
enable the DVA to retrieve pertinent records from the
PITTS v. SHINSEKI
4

Social Security Administration that the DVA had not
previously sought to obtain. The joint motion added that
Mr. Pitts would be free, on remand, to submit additional
evidence and argument in support of his claims.
On remand, the Board conducted another hearing in
September of 2006 and subsequently reopened Mr. Pitts’s
PTSD claim based on his assertions that he was shot at
during service and that someone he knew had been killed
in action. The Board also directed the regional office to
attempt to verify the claimed stressor for Mr. Pitts’s
PTSD claim, to obtain the Social Security Administration
records and any other relevant records, and to issue a
detailed notice to Mr. Pitts as to the information and
evidence that would be necessary to establish his entitlement
to benefits. The regional office sent Mr. Pitts a
notice explaining the type of evidence needed to reopen
his previously denied claims and to establish each of his
claims. In 2009, after the regional office obtained pertinent
records from the Social Security Administration and
elsewhere, the Board found that the DVA had complied
with its duties to notify and assist Mr. Pitts. On the
merits, the Board ruled that there was no new and material
evidence sufficient to warrant reopening Mr. Pitts’s
claims for service connection for his lower back injury and
his psychiatric disorder other than PTSD, because the
records had not established a nexus between those conditions
and his service. As to his sinus disorder and skin
condition claims, the Board found that the evidence did
not establish that those conditions were service connected.
And as to his reopened PTSD claim, the Board
concluded that the record did not show that he had a
current diagnosis of PTSD.
Mr. Pitts then appealed to the CAVC. He argued on
appeal that the hearing officer who conducted the Board’s
PITTS v. SHINSEKI
5

September 2006 hearing had not satisfied the requirements
of 38 C.F.R. § 3.103(c)(2) because he had not sufficiently
explained the evidentiary deficiencies in Mr.
Pitts’s case and had not suggested that Mr. Pitts submit
further evidence in support of his claims. The CAVC
agreed that the hearing officer had not satisfied the
regulatory requirement. The court explained that the
hearing officer had merely listed the claims on appeal,
rather than explaining why they had been denied, and
had failed to address the question whether there was
sufficient evidence to reopen Mr. Pitts’s claim of service
connection for a psychiatric disorder other than PTSD.
Having found the remand proceeding deficient, however,
the CAVC concluded that the error was harmless.
The court first held that Mr. Pitts had not met his burden
of showing that the error was prejudicial. The court noted
that Mr. Pitts, through his counsel, had “fail[ed] to assert
precisely how he was prejudiced by any purported hearing
officer error or indicate what additional evidence he
would have submitted if an error had not been committed.”
Pitts v. Shinseki, No. 09-4560, slip op. at 4 (Vet.
App. June 7, 2011). Instead, he merely asserted that it
would require “pure speculation” to conclude that the
error did not prejudice him. Id. Notwithstanding counsel’s
failure to make a specific argument as to prejudice,
the court reviewed the record and determined that the
Board’s error did not prejudice Mr. Pitts because he had
“actual knowledge of the issues and evidence material to
his claims.” Id. at 5. In light of the prior joint motion for
remand, the court concluded that Mr. Pitts “was aware of
the evidentiary and legal weaknesses of his claims prior
to them being returned to the Board,” and that he was
clearly aware of the problems with his claims, as those
same evidentiary deficiencies had been pointed out in the
prior appeal. Id.
PITTS v. SHINSEKI
6

Mr. Pitts subsequently obtained new counsel and
prosecuted an appeal to this court.

II
Mr. Pitts’s principal argument on appeal is that the
lawyer who represented him before the CAVC provided
ineffective assistance of counsel, which rendered the
proceedings before that court fundamentally unfair, thus
denying him his right to due process under the Fifth
Amendment. In particular, he contends that although his
counsel successfully argued that the remand proceedings
were defective, he did not make the further contention
that the error was prejudicial. The failure to specifically
assert and argue prejudice, he claims, amounted to constitutionally
ineffective assistance of counsel and requires
reversal of the CAVC’s judgment.1
1 The government has not challenged this court’s
jurisdiction over Mr. Pitts’s ineffective assistance of
counsel claim, and we conclude that we may exercise
jurisdiction over both the facts and law relevant to that
issue under our authority to “interpret constitutional . . .
provisions, to the extent presented and necessary to a
decision.” 38 U.S.C. § 7292(c); see also § 7292(d) (“The
Court of Appeals for the Federal Circuit shall decide all
relevant questions of law, including interpreting constitutional
and statutory provisions”; the court may not review
a challenge to a factual determination “[e]xcept to the
extent that an appeal under this chapter presents a
constitutional issue.”). We have held that sections 7292(c)
and (d) give us jurisdiction to review “free-standing”
constitutional issues such as Mr. Pitts’s claimed right to
the effective assistance of counsel. In re Bailey, 182 F.3d
860, 865-70 (Fed. Cir. 1999).
In criminal cases, ineffective assistance claims are ordinarily
required to be raised in collateral proceedings.
See Massaro v. United States, 538 U.S. 500 (2003). We
need not decide whether an ineffective assistance claim
PITTS v. SHINSEKI
7

It is well established that, as a general matter, the
constitutional right to counsel—and thus the constitutional
right to the effective assistance of counsel—does
not attach in civil cases that do not involve the potential
deprivation of a liberty interest.2 In Lariscey v. United
States, 861 F.2d 1267, 1270 (Fed. Cir. 1988), this court
stated that in civil proceedings, “the right to counsel is
highly circumscribed, and has been authorized in exceedingly
restricted circumstances.” The court explained that
in civil cases, a constitutional right to counsel exists, if at
all, only when an indigent party “may lose his/her personal
freedom if the action is lost.” Id.; see Lassiter v.
Dep’t of Soc. Servs., 452 U.S. 18, 26-27 (1981) (“[W]e . . .
draw from [the Court’s precedents] the presumption that
an indigent litigant has a right to appointed counsel only
when, if he loses, he may be deprived of his physical
liberty.”); see also Arnesen v. Principi, 300 F.3d 1353,
1360 (Fed. Cir. 2002) (generally there is no right to appointed
counsel for indigent civil litigants absent a potential
loss of personal freedom if the action is lost).
When the government is not constitutionally required
to furnish counsel in particular proceedings, errors by
private counsel are not imputed to the government. See
Coleman v. Thompson, 501 U.S. 722, 752-54 (1991). The
client “cannot claim constitutionally ineffective assistance
of counsel in such proceedings”; rather, because the
attorney performs in a private capacity as the client’s
could be raised on direct appeal from a decision of the
CAVC, given our holding that there is no due process
right to effective assistance in these circumstances.
2 The right to effective assistance of counsel has
long been recognized in criminal proceedings, where it is
grounded in the Sixth Amendment. See Strickland v.
Washington, 466 U.S. 668, 685-86 (1984).
PITTS v. SHINSEKI
8

agent, and not as a state actor, the client must “bear the
risk of attorney error.” Id. at 752-53 (citation and quotation
marks omitted). See also Wainwright v. Torna, 455
U.S. 586, 587-88 (1982) (“Since respondent had no constitutional
right to counsel, he could not be deprived of the
effective assistance of counsel . . . .”); Link v. Wabash R.R.
Co., 370 U.S. 626, 633-34 (1962) (When a party in a civil
case voluntarily chooses his attorney as his representative,
“he cannot . . . avoid the consequences of the acts or
omissions of this freely selected agent. Any other notion
would be wholly inconsistent with our system of representative
litigation, in which each party is deemed bound by
the acts of his lawyer-agent.”).
Although claimants seeking federal benefits normally
enjoy the right to retain counsel, whether by statute,
regulation, or practice, that right does not alter the general
rule that retained counsel’s error is imputed to the
client. This court addressed, and rejected, a claim of
ineffective assistance of counsel in an appeal from the
Merit Systems Protection Board in Bowen v. Department
of Transportation, Federal Aviation Administration, 769
F.2d 753, 755 (Fed. Cir. 1985). The appellants in that
case, federal employees who had been removed from their
jobs, argued that their counsel had been ineffective in
representing them before the Board, in violation of their
statutory rights under 5 U.S.C. § 7513(b)(3). This court
rejected their claim on the ground that “[t]here is no
statutory or regulatory requirement that representation
be ‘effective’” and that the appellants were chargeable
with the acts or omissions of their chosen counsel.
The same rule applies to other types of civil litigation,
in both private cases and suits against the government.
See Nelson v. Boeing Co., 446 F.3d 1118, 1119 (10th Cir.
2006) (“The general rule in civil cases is that the ineffecPITTS
v. SHINSEKI
9

tive assistance of counsel is not a basis for appeal or
retrial. . . . If a client’s chosen counsel performs below
professionally acceptable standards, with adverse effects
on the client’s case, the client’s remedy is not reversal, but
rather a legal malpractice lawsuit against the deficient
attorney.”); Slavin v. Comm’r, 932 F.2d 598, 601 (7th Cir.
1991) (“There is no principle of effective assistance of
counsel in civil cases. Shortcomings by counsel may be
addressed in malpractice actions; they do not authorize
the loser to litigate from scratch against the original
adversary.”); Nicholson v. Rushen, 767 F.2d 1426, 1427
(9th Cir. 1985) (“Generally, a plaintiff in a civil case has
no right to effective assistance of counsel. . . . This rule is
based on the presumption that, unless the indigent litigant
may lose his physical liberty if he loses the litigation,
there is generally no right to counsel in a civil case.”);
Watson v. Moss, 619 F.2d 775, 776 (8th Cir. 1980) (“There
is no constitutional or statutory right for an indigent to
have counsel appointed in a civil case. . . . It of course
follows there is no constitutional or statutory right to
effective assistance of counsel in a civil case.”).
Even in benefits proceedings in which courts have
recognized a due process right to have the assistance of
retained counsel during the proceedings, it does not
necessarily follow that the party has a constitutional right
to effective assistance on the part of that chosen counsel.
See Mekdeci v. Merrell Nat’l Labs., 711 F.2d 1510, 1522-
23 & n.19 (11th Cir. 1983) (right to retain counsel does
not “encompass any assurance that the counsel retained
will be effective”). In Goldberg v. Kelly, 397 U.S. 254
(1970), the Supreme Court held that a claimant who was
at risk of losing child welfare benefits must be allowed to
retain an attorney for the termination proceedings. The
Court was careful to add, however, that the claimant was
not entitled to have counsel appointed, id. at 270-71, and
PITTS v. SHINSEKI
10

it did not recognize a right to effective assistance in
proceedings for welfare benefits.
Mr. Pitts acknowledges that the doctrine of ineffective
assistance of counsel is generally not recognized in civil
cases. However, he relies on a line of immigration decisions
in which a number of courts of appeals have held
that the Due Process Clause provides some level of protection
against ineffective assistance of counsel in
removal (i.e., deportation) proceedings, even though the
alien is not constitutionally entitled to the appointment of
counsel in such proceedings. See, e.g., Contreras v. Att’y
Gen., 665 F.3d 578, 584 (3d Cir. 2012); Nehad v. Mukasey,
535 F.3d 962, 967 (9th Cir. 2008); Zeru v. Gonzalez, 503
F.3d 59, 72 (1st Cir. 2007); Tang v. Ashcroft, 354 F.3d
1192, 1196 (10th Cir. 2003); United States v. Perez, 330
F.3d 97, 101 (2d Cir. 2003); Huicochea-Gomez v. INS, 237
F.3d 696, 699 (6th Cir. 2001); Mejia Rodriguez v. Reno,
178 F.3d 1139, 1146 (11th Cir. 1999). Several courts of
appeals have taken a contrary view, holding that where
there is no constitutional right to the appointment of
counsel a party may not obtain relief because of inadequacies
in the performance of his chosen counsel, even in
immigration cases. See Rafiyev v. Mukasey, 536 F.3d 853,
861 (8th Cir. 2008); Afanwi v. Mukasey, 526 F.3d 788,
796-99 (4th Cir. 2008), vacated and remanded, 130 S. Ct.
350 (2009); Magala v. Gonzales, 434 F.3d 523, 525 (7th
Cir. 2005). However, even assuming the position taken by
the majority of circuits on that issue is correct, the
rationale of those cases does not extend to veterans’
benefits claims.
Removal proceedings implicate an individual’s liberty;
they are not confined to affecting only property interests.
The Supreme Court in Bridges v. Wixon, 326 U.S. 135,
154 (1945), explained that in deportation cases, “the
liberty of an individual is at stake” because deportation
PITTS v. SHINSEKI
11

“deprives him of the right to stay and live and work in
this land of freedom.” Following Bridges, courts that have
recognized a right to effective assistance of counsel in
removal proceedings have found that right to be grounded
in the substantial liberty interest that is at stake. See
Fadiga v. Att’y Gen., 488 F.3d 142, 157 & n.23 (3d Cir.
2007) (“the liberty of an individual is at stake in deportation
proceedings”); Saakian v. INS, 252 F.3d 21, 24 (1st
Cir. 2001) (quoting Bridges); Huicochea-Gomez v. INS,
237 F.3d at 699 (aliens claiming ineffective assistance of
counsel must “explain how their liberty interests have
been violated”); Iavorski v. INS, 232 F.3d 124, 128 (2d Cir.
2000) (quoting Bridges); Mejia Rodriguez v. Reno, 178
F.3d at 1146 (deportation proceeding implicates an alien’s
liberty interest); see also Nelson v. Boeing Co., 446 F.3d at
1120 (citing Mejia Rodriguez); Nicholson v. Rushen, 767
F.2d at 1427 (noting the presumption that absent a risk of
loss of liberty, due process does not give rise to a right to
the effective assistance of counsel). The line of cases
involving the removal of aliens is therefore readily distinguishable
from cases involving social security benefits,
welfare benefits, and federal employment, where no such
liberty interest is implicated and where the courts, accordingly,
have not recognized a constitutional right to
either the appointment of counsel or the effective assistance
of counsel.3
3 The Supreme Court has not resolved the conflict
over whether there is a right to the effective assistance of
retained counsel in immigration removal cases, and it is
open to question whether the right to effective assistance
of counsel attaches in civil cases whenever a liberty
interest is at stake. See Stroe v. INS, 256 F.3d 498, 500
(7th Cir. 2001) (as a general rule there is no right to
effective assistance of counsel in civil cases “even when
the proceeding though nominally civil involves liberty or
even life, as in a capital habeas corpus case”). Because
PITTS v. SHINSEKI
12

Mr. Pitts argues that the interests at stake in a veteran’s
disability benefits claim are sufficiently important
to the claimant that such cases should be treated like
removal proceedings, and not like other civil cases involving
only property interests. Without denigrating the
importance of benefits to claimants in the veterans’
benefits system, we are not persuaded that such benefits
are categorically different from, for example, social security
disability payments, welfare assistance, or other
benefit programs as to which the courts have never recognized
a right to the effective assistance of counsel as a
component of due process, either in the agency proceedings
themselves or, as in this case, in judicial review of
the agency decisions. Indeed, the Supreme Court in
Walters v. National Ass’n of Radiation Survivors, 473 U.S.
305 (1985), stated that veterans have a “property interest
in the continued receipt of Government benefits” and that
“the benefits at stake in VA proceedings, which are not
granted on the basis of need, are more akin to the Social
Security benefits involved in Mathews [v. Eldridge, 424
U.S. 319 (1976)] than they are to the welfare payments on
which the recipients in Goldberg [v. Kelly, 397 U.S. 254
(1970)] depended for their daily subsistence.” 473 U.S. at
332-33. And even though the Court in Walters characterized
Goldberg as presenting a more compelling case of
need than is generally present in cases involving veterans’
benefits, the Court, as noted, held that even in the Goldberg
setting, a claimant is not entitled to have counsel
appointed, 397 U.S. at 270-71, and it did not recognize
any constitutionally based claim of ineffective assistance
of counsel.
there is no liberty interest at stake in this case, we need
not decide whether, or to what extent, the right to effective
assistance of counsel applies in civil cases in which
some liberty interest is implicated.
PITTS v. SHINSEKI
13

In sum, we hold that the right to the effective assistance
of counsel does not apply to proceedings before the
CAVC. In determining the scope of the constitutional
right to the effective assistance of counsel in civil cases,
the courts have consistently held that where only property
interests are at stake, there is no due process right to
the effective assistance of counsel, regardless of how
unique or important the property rights in question may
be. Proceedings in veterans’ benefits cases are of course
important to the claimants, but they are directed at the
adjudication of property claims, not liberty interests.
Based on that distinction, and the long line of precedents
refusing to extend the constitutional right to counsel to
benefits proceedings of that type, we reject Mr. Pitts’s
contention that he is entitled to relief on appeal based on
what he characterizes as ineffective assistance by his
lawyer while representing him before the CAVC.

III
In addition to pressing his ineffective assistance of
counsel argument, Mr. Pitts contends that the CAVC
erred in holding that the error in this case was harmless.
He argues that the court should not have found that he
had actual knowledge of the issues and evidence pertinent
to his claims. That argument challenges the CAVC’s
application of law to fact and therefore falls outside this
court’s jurisdiction. 38 U.S.C. § 7292(d)(2).
Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir.
2007), presented an issue nearly identical to this one. In
that case, the CAVC held that a claimant was not prejudiced
by the DVA’s failure to provide him proper notice of
the need to submit medical evidence showing that his
hearing loss was disabling. On appeal, this court held
that the harmless error ruling by the CAVC was a factual
PITTS v. SHINSEKI
14

determination that this court lacked jurisdiction to review.
Id. at 1302. That case controls our jurisdictional
determination and requires that we reject Mr. Pitts’s
contention for lack of jurisdiction to review the harmless
error ruling by the CAVC. See also Conway v. Principi,
353 F.3d 1369, 1375 (Fed. Cir. 2004) (“[T]he ultimate
conclusion of the effect of the rule of prejudicial error on
this case is beyond our jurisdiction.”). We therefore do not
address the merits of Mr. Pitts’s challenge to the CAVC’s
harmless error ruling.
AFFIRMED

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