Pitts v. Dept. Of Veterans Affairs
2012 U.S. App. LEXIS 23951
| Fed. Cir. | 2012Background
- Pitts, a veteran, seeks Department of Veterans Affairs disability benefits for PTSD and other conditions; CAVC upheld Board denial.
- Pitts contends his CAVC counsel provided ineffective assistance, violating his due process rights.
- Pitts' service was 1971–1974; earlier claims were denied; PTSD claim filed in 1992 with related reopenings.
- Remand in 2005 allowed DVA to obtain SSA records; Board opened and reviewed claims again in 2006, with ongoing evidentiary development.
- Board findings in 2009 still denied service connection for sinus and skin conditions and found no current PTSD diagnosis; CAVC identified harmless error in 2006 hearing.
- This court holds there is no constitutional right to effective assistance of counsel in CAVC proceedings or to a remedy for private-counsel errors impacting such civil benefits cases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the Constitution guarantee effective assistance of counsel before the CAVC? | Pitts asserts constitutional right to effective assistance | Government argues no such right in civil benefits appeals | No constitutional right to effective assistance before CAVC |
| Is the CAVC's harmless-error ruling reviewable on appeal? | Challenged the harmless-error determination as prejudicial | Harmless-error ruling is a factual determination outside this court’s review | This court lacks jurisdiction to review the harmless-error merits |
| If the CAVC erred, did Pitts suffer prejudice from the hearing officer's failure to explain evidence? | Errors prejudicial; not adequately argued by counsel | Harmless error; record shows knowledge of issues | Harmless-error ruling affirmed; no due process violation established |
Key Cases Cited
- Lariscey v. United States, 861 F.2d 1267 (Fed. Cir. 1988) (civil-rights-style right to counsel is limited unless liberty at stake)
- Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18 (U.S. 1981) (indigent counsel right only when liberty at stake)
- Arnesen v. Principi, 300 F.3d 1353 (Fed. Cir. 2002) (general rule: no right to appointed counsel in civil cases absent liberty interest)
- Bowen v. Department of Transportation, Federal Aviation Administration, 769 F.2d 753 (Fed. Cir. 1985) (no statutory/regulatory requirement of effective representation; acts of counsel imputable to client)
- Nelson v. Boeing Co., 446 F.3d 1118 (10th Cir. 2006) (ineffective assistance in civil cases not basis for reversal; malpractice remedy exists)
- Slavin v. Comm’r, 932 F.2d 598 (7th Cir. 1991) (civil cases lack right to effective assistance; mistakes remedied by malpractice actions)
- Nicholson v. Rushen, 767 F.2d 1426 (9th Cir. 1985) (no general right to effective assistance in civil cases)
- Watson v. Moss, 619 F.2d 775 (8th Cir. 1980) (no constitutional right to counsel in civil cases absent liberty interest)
- Wainwright v. Torna, 455 U.S. 586 (U.S. 1982) (no right to counsel in civil case; cannot be deprived of effective assistance through civil proceedings)
- Link v. Wabash R.R. Co., 370 U.S. 626 (U.S. 1962) (party bound by attorney's acts; no independent right to effective assistance in civil cases)
- Walters v. National Association of Radiation Survivors, 473 U.S. 305 (U.S. 1985) (veterans' benefits not guaranteed counsel; no appointment right; benefits resemble property interests)
- Bridges v. Wixon, 326 U.S. 135 (U.S. 1945) (liberty at stake in deportation; supports liberty-based due-process analyses)
- Mejia Rodriguez v. Reno, 178 F.3d 1139 (11th Cir. 1999) (deportation cases vary by liberty interest; not controlling for veterans' benefits)
- Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000) (liberty interests in removal cases impact due-process analysis)
- Fadiga v. Att’y Gen., 488 F.3d 142 (3d Cir. 2007) (liberty interests in removal proceedings underpin effective-counsel analyses)