Veteranclaims’s Blog

June 17, 2015

Smith v. McDonald, No. 2014-7054(Decided: June 17, 2015); Nat’l Org. of Veterans Advocates, Inc. v. Sec’y of Veterans Affairs, 725 F.3d 1312 (Fed. Cir. 2013) (“NOVA”); Joint Remand Motion; 38 C.F.R. § 3.103

Excerpt from decision below:

“We affirm because, contrary to Mr. Smith’s assertions, neither our prior decisions nor the Plan precludes the Veterans Court from determining, in an appropriate case,
whether a joint motion filed under the terms of the Plan nevertheless should be denied.”

======================

United States Court of Appeals
for the Federal Circuit
______________________
BOBBY G. SMITH,
Claimant-Appellant
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee
______________________
2014-7054
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-3375, Judge Lawrence B.
Hagel, Judge William Greenberg, Judge William A.
Moorman.
______________________
Decided: June 17, 2015
______________________
MATTHEW J. ILACQUA, Chisholm Chisholm & Kilpatrick,
Providence, RI, argued for claimant-appellant. Also
represented by ZACHARY STOLZ, NICHOLAS L. PHINNEY,
ROBERT VINCENT CHISHOLM; CHRISTOPHER J. CLAY, Disabled
American Veterans, Cold Spring, KY.
K. ELIZABETH WITWER, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent-appellee. Also
represented by STUART F. DELERY, ROBERT E. KIRSCHMAN,
2 SMITH v. MCDONALD
JR., MARTIN F. HOCKEY, JR; Y. KEN LEE, RACHAEL BRANT,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before PROST, Chief Judge, PLAGER, and WALLACH,
Circuit Judges.
PLAGER, Circuit Judge.
This is a veterans case related to our prior ruling in Nat’l Org. of Veterans Advocates, Inc. v. Sec’y of Veterans Affairs, 725 F.3d 1312 (Fed. Cir. 2013) (“NOVA”). In
NOVA, we approved a plan (“Plan”) requiring the Department of Veterans Affairs (“VA”) to take certain actions to identify and rectify harms caused by its wrongful application of a former version of 38 C.F.R. § 3.103.
In this case, pursuant to the Plan, the parties submitted a joint motion to recall a prior judgment of the U.S. Court of Appeals for Veterans Claims (“Veterans Court”) and a motion for leave to file, out of time, a joint motion for remand. Bobby G. Smith appeals from the Veterans Court’s per curiam order denying both motions.
We affirm because, contrary to Mr. Smith’s assertions, neither our prior decisions nor the Plan precludes the Veterans Court from determining, in an appropriate case, whether a joint motion filed under the terms of the Plan nevertheless should be denied.

BACKGROUND
NOVA Litigation and the Plan
In August 2011, the VA published an immediatelyeffective
final rule (“2011 Rule”) that eliminated certain
procedural due process and appellate rights that were
previously provided under 38 C.F.R. § 3.103 for veterans
appearing before the Board of Veterans’ Appeals
(“Board”). See Rules Governing Hearings Before the
SMITH v. MCDONALD 3
Agency of Original Jurisdiction and the Board of Veterans’
Appeals; Clarification, 76 Fed. Reg. 52,572-01 (Aug.
23, 2011); see also Rules Governing Hearings Before the
Agency of Original Jurisdiction and the Board of Veterans’
Appeals; Repeal of Prior Rule Change, 77 Fed. Reg.
23,128-01 (Apr. 18, 2012) (repealing prior rule change).
The 2011 Rule contravened Bryant v. Shinseki, 23 Vet.
App. 488 (2010), in which the Veterans Court found that
the due process and appellate rights at issue applied not
only to hearings before the Agency of Original Jurisdiction
but also to hearings before the Board.
In litigation before this court, brought by NOVA, the
Government admitted that adoption of the 2011 Rule by
the VA violated the law, specifically the Administrative
Procedure Act, 5 U.S.C. §§ 500 et seq. NOVA, 725 F.3d at
1313–14. We agreed. Furthermore, after it became clear
that the VA continued to apply the 2011 Rule despite
having made prior assurances to the contrary, this court
approved the Plan to identify and rectify harms caused by
the VA’s wrongful conduct. Id. at 1314–15.
In approving the Plan, we stated that:
we expect the VA to collaborate with appellant
NOVA throughout the process of implementation,
thus assuring that no veteran who is entitled to
procedural and due process benefits under 38
C.F.R. § 3.103 will be denied such benefits. We
note with some concern that some Board judges
and attorneys continued to misapply the invalid
2011 Rule even after instructed otherwise. We
trust that VA will take firm steps to ensure full
compliance by all Board and staff with the Proposed
Plan.
Id. at 1315.
The Plan required, inter alia, that the VA provide
notice to every claimant who, in a hearing before the
4 SMITH v. MCDONALD
Board, received a final Board decision during the period
specified (identified by relevant search terms) in which
the claimant did not receive a full grant of relief. Id. at
1314–15. Those search terms included any reference to
38 C.F.R. § 3.103 or Bryant.
Two kinds of cases were specially recognized. If a
claimant had a case that was outside of the Board’s
jurisdiction—e.g., because it had already been appealed—
but mandate had not issued and the appellate court’s
judgment was not final, the VA was obligated to offer to
submit a joint motion for remand or, as appropriate, to
request that the Department of Justice (“DOJ”) submit
such a motion. If the mandate had issued, then the VA
was required to offer to submit a joint motion to recall
mandate and a joint motion for remand or, as appropriate,
to request that the DOJ submit such motions.
This Appeal
Mr. Smith served in the U.S. Army from November
1963 to November 1965. In February 2000, Mr. Smith
filed a claim for service connection and compensation for
post-traumatic stress disorder (“PTSD”) with the VA.
After the claim was initially denied, Mr. Smith filed a
request to reopen the claim in July 2006. In January
2008, Mr. Smith was awarded service connection for
PTSD with an assignment of a 100% disability rating and
an effective date of July 3, 2006. In January 2009, Mr.
Smith appealed the determination of the effective date to
the Board, and in October 2011, the Board denied Mr.
Smith entitlement to an earlier effective date.
Of critical importance, the Board did not apply the invalid
2011 Rule in its decision, although the Board decision
did cite 38 C.F.R. § 3.103 and Bryant—two of the
relevant search terms under the Plan. Mr. Smith then
appealed the Board’s decision to the Veterans Court.
SMITH v. MCDONALD 5
Before the Veterans Court, Mr. Smith asserted that
the Board had erred by failing to apply 38 C.F.R.
§ 3.156(c) to his case—a regulation that was not at issue
in NOVA. On May 21, 2013, the Veterans Court, in a
decision by a single judge, affirmed the Board’s decision.
On July 10, 2013, the Veterans Court, in a per curiam
decision by a three-judge panel, adopted the earlier single-
judge decision. On August 1, 2013, five days before
this court’s decision in NOVA, the Clerk of the Veterans
Court entered judgment in Mr. Smith’s case.
In September 2013, the parties, pursuant to the Plan
that we approved in NOVA, filed a joint motion to recall
the Veterans Court’s judgment, though mandate had not
yet issued, and a joint motion for leave to file a joint
motion for remand out of time. The parties filed the
motions because, even though the Board did not apply the
invalid 2011 Rule, the Board’s decision fit the search
terms profile under the Plan and therefore triggered the
VA’s obligation to offer to submit a joint motion under the
Plan. In particular, the Board in Mr. Smith’s case did not
grant full relief and cited 38 C.F.R. § 3.103 and Bryant—
even though the Board clearly relied on a 2009 version of
§ 3.103 and did not apply or rely on the invalid 2011 Rule.
This is clear from the language of the Board’s decision:
In Bryant v. Shinseki, 23 Vet[.] App[.] 488 (2010),
the Court held that 38 C.F.R. [§] 3.103(c)(2)(2009)
requires that the Veterans Law Judge who chairs
a hearing fulfill two duties to comply with the
above the [sic] regulation. These duties consist of
(1) the duty to fully explain the issues and (2) the
duty to suggest the submission of evidence that
may have been overlooked. Here, during the
hearing, the Veterans Law Judge outlined the issue
on appeal and suggested that any evidence
tending to show that a viable claim was filed prior
6 SMITH v. MCDONALD
to July 3, 2006 would be helpful in establishing
the earlier effective claim. Moreover, neither the
Veteran nor his representative has asserted that
VA failed to comply with 38 C.F.R. [§] 3.103(c)(2);
they have not identified any prejudice in the conduct
of the Board hearing.
J.A. 69.
The parties recognized these realities in their joint motion
to recall the Veterans Court’s decision:
Although no application of the 2011 Rule is apparent
from the Board’s decision, VA is mindful of
the Federal Circuit’s goal of “assuring that no veteran
who is entitled to procedural and due process
benefits under 38 C.F.R. § 3.103 will be denied
such benefits.” To further this goal and ensure
that any affected veterans obtain relief, VA is offering
the opportunity for a new Board decision to
any claimant whose previous decision meets the
technical criteria of the plan regardless of whether
actual prejudice is apparent.
J.A. 19.
In response, on January 13, 2014, the Veterans Court
denied both joint motions and held that “where, as here,
the parties have not shown, and the Court cannot discern,
that the Board did or may have applied the invalid 2011
Rule, the parties have not demonstrated good cause for
their motion and the Court will not exercise its discretion
to recall its judgment.” Smith, 26 Vet. App. at 411. The
Veterans Court noted that “it is clear on the face of the
Board’s decision that the Board cited and applied the
correct law and not the invalid 2011 Rule. Further, in
their joint motion to the Court, the parties admit that the
Board did not apply the 2011 Rule.” Id.
Mr. Smith filed a timely appeal. Before this court,
Mr. Smith characterizes the Plan as a settlement agreeSMITH
v. MCDONALD 7
ment and argues that the Veterans Court failed to “enforce”
the settlement agreement; Mr. Smith requests that
we remand his case to the Veterans Court with instructions
that it “enforce” the settlement agreement approved
by this court in NOVA.
DISCUSSION
We have jurisdiction in this matter, and we review
the Veterans Court’s denial of a motion for recall and to
remand under an abuse of discretion standard. Maggitt v.
West, 202 F.3d 1370, 1379–80 (Fed. Cir. 2000).
We take this opportunity to make clear what should
be clear, so that future litigants will not occupy unnecessarily
either the Veterans Court’s time or ours. On appeal,
Mr. Smith characterizes the Plan as a settlement
agreement and argues that the Veterans Court failed to
enforce that settlement agreement—implying that the
Veterans Court had no choice but to grant every joint
motion submitted pursuant to the Plan. Mr. Smith states
that “the only question for this Court to answer is whether
the Veterans Court had an obligation to enforce the
agreement.” Appellant’s Reply Br. at 7.
Similarly, he states that:
the only matter for this Court to address is
whether the Veterans Court misinterpreted the
agreement by not treating it as enforceable law.
Regardless of the central purpose of the settlement
plan, since the Veteran’s case is covered by
the document, the Veterans Court erred by not
following the settlement plan and prejudiced the
Veteran by not remanding his case since he may
have been able to provide additional evidence to
support his claim upon its return to the Board.
Id.
8 SMITH v. MCDONALD
Mr. Smith’s argument, that the Veterans Court’s decision
to deny the joint motion in this particular case somehow
constitutes a failure to enforce a settlement
agreement, is misguided. The Plan does not require that
the Veterans Court grant every single joint motion filed
pursuant to the Plan merely because such a motion is
proffered pursuant to the search terms used in the Plan.
Neither the Plan nor our prior NOVA decisions purport to
remove the Veterans Court’s ability to consider the merits
of such motions or its discretion to grant or deny them.
Mr. Smith does not challenge that determination on the
merits in this appeal. Instead, he argues that, since the
joint motion was filed pursuant to the Plan, the Veterans
Court erred simply because it denied the motion, regardless
of the merits of the motion itself.
The Plan requires, inter alia, that the VA provide notice
to every claimant who had a hearing before the Board
and who received a final Board decision that was identified
by relevant search terms in which the claimant did
not receive a full grant of relief. NOVA, 725 F.3d. at
1314–15. The Plan also requires that, if certain conditions
are met, the VA offer to submit a joint motion to
recall or a joint motion for remand, or both.
Mr. Smith does not argue that the VA failed to abide
by its obligations under the Plan in any respect. He fails
to identify any breached provision of the Plan that the
Veterans Court somehow failed to enforce. In short, his
argument on appeal—that the Veterans Court erred by
failing to grant the motion on the grounds that the motion
had to be granted simply because it was proffered pursuant
to the Plan—is mistaken.
On these facts there is no question that the Veterans
Court’s decision neither contravened our NOVA decisions
nor the Plan itself. Neither the requirements of the Plan
nor the language of our decisions in the NOVA litigation
bound the Veterans Court to automatically grant a joint
SMITH v. MCDONALD 9
motion to recall or remand simply because such a motion
was proffered; the Plan requirement was that the VA,
when the conditions specified in the Plan were met, offer
a joint motion. There is no suggestion that the VA failed
in its duties under the Plan or our prior decisions.
CONCLUSION
For the foregoing reasons, we affirm the judgment of
the Veterans Court.
AFFIRMED

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