Kuzma v. Principi

Secretary remand and allowed the to file a KUZMA, Appellant, Thomas J. appellant’s reply response. to the Kuzma v. (2002) (en 429, Principi, v. 15 Vet.App. order). 25, 2002, February On Anthony PRINCIPI, Secretary J. appellant responded. Secretary The Affairs, Appellee. replied. not No. 98-295. Upon foregoing, consideration of the Appeals

United States appellant’s ORDERED that the Novem- for Veterans Claims. 5, 2001, ber motion to remand the matter 29, May accepted filing for the date that it was submitted. It is further KRAMER, Judge, Before Chief FARLEY, ORDERED that the HOLDAWAY, IVERS, Secretary’s Decem- 7, 2001, 4, STEINBERG, GREENE, 2002, ber and January Judges. granted. Secretary’s February 8, are 2002, response is accepted for as of ORDER the date that it was submitted. PER CURIAM: STEINBERG, Judge, concurring: 5, 2001, appellant, On November counsel, through motion, pur submitted join in I Court’s decision to 27 of suant Court’s Rules appellant’s 5, 2001, for November (Rules), Practice and Procedure to vacate motion for a remand to Board of Vet 17, 1997, an October the Board (Board) Appeals erans’ for readjudication Appeals Veterans’ mat remand the enactment the Veterans ter pursuant Holliday Principi, Claims Assistance Act of Pub.L. rat (remanding (Nov. 114 Stat.2096 ing-increase claim for due (VCAA). I separately write rea two to enactment of Assis Veterans Claims respond sons: To to the dissenting Act tance Pub.L. statement; identify other issues (Nov. 2000)). Stat. 2096 On December I implicated believe now 7, 2001, Secretary submitted a motion (and cases) similar in light of the for leave to file out time motion for an opinion of of Appeals the U.S. Court extension of to respond appel to the (Federal Circuit) the Federal Circuit date, lant’s motion. On that same Dyment Principi, Secretary also submitted a motion for (Fed.Cir.2002) (holding that VCAA-enact- time, January 7, until extension duty duty notify assist and are not response. January file a On retroactively applicable), mot. en banc Secretary submitted motion an exten 3, 2002); (May consideration see also filed 8, 2002, February sion of until to file Bernklau v. 8, 2002, a response. February On (Fed.Cir.2002) (holding Dyment “was ap submitted a correct”). plainly pellant’s November A. 27 Motions February ordered why First, explain question Court should efficacy reject filing, not rejecting due to unreasonable submission as delay, his November urged my dissenting colleague, be- 26(b), may totally Rule acted unprec- be under be doing so would lieve any awaiting re- edented, impose retroactively a new without would and, in requirement not included or order of the sponse, rule and Procedure procedural Rules of Practice for certain Court’s motions inequi- in (Rules), so a most disposed and would do may orders be Clerk. manner, fair notice. The adversely table an Any party affected such pursuant to appellant motion, submitted his motion request may, action that the provides para- That in vacate, Rule 27. Rule reconsider, modify or Court (a) (b): graphs days after the action is action within (a) Motions; Response. Content announced. required by Unless another form is VetApp. (b). 27(a), be R. As can rules, application an

these relief seen, imposes Rule face no on its by filing must made with filing any deadlines for motions. More- (see 25(e)) all proof of Rule service over, anywhere provision is no there motion must: parties. other The imposing a deadline for an Rules (1) accompanied by any contain or be (outside separately initial motion de- required by any material of the rules category of motions for fined reconsidera^ motion; such a governing decisions, tion, panel and en particularity specific state with forth, prescribed so which limits based; grounds on which 35). addition, not, Rule 27 does sought; the relief describe my colleague dissenting suggest, seems procedural limit the of motions to if the is represented matters, (b) provides paragraph because (A) steps taken con- describe the excep- for such matters as an separately party tact the other to determine (a). paragraph tion to Examination of the is opposed; whether the Appellate Notes to Federal Proce- (B) indicate whether motion is (FRAP) 27, on which our Rule 27 was dure and, so, opposed whether the mov- based, supports applicability the broad ing party been advised (including timing) open-ended our Rule 27 response opposition will be filed. procedural mo- both substantive accompanied by not be Motions should Notes state: tions. Those proposed orders. If a mo- implementing (a) provision of subdivision briefs, affidavits, supported by tion or is any party response file a permits papers, they other must be served and days opposition to a motion within Any party may filed with the motion. upon him assumes after its service opposition file a a motion substance which the motion is one of after service of the mo- within upon without afford- ought not be acted tion, by Rule 8 but motions authorized opportunity an ing parties affected Injunction Pending Appeal) (Stay or or other- reply. A motion dismiss may upon after be acted reasonable no- clearly is wise determine all parties, tice the motion to and the a motion. may shorten or extend the time responding 27, Advisory Notes to FRAP Committee added). (b) A re- Adoption for Procedural Motions Orders. (a) proposes mand motion that Notwithstanding subsection orders, rule, newly enacted statute and in- procedural were after the briefs for an extension of submitted cluding any motion category filed would to fall into clearly contemplates procedural seem that both an appeal”. of a motion to “determine and substantive motions be filed. dissenting It judge Because substantive motions are contem reject the in filing would Rules, plated by the it incongru would be upon case the structure based of Rules reject ous to a motion single that raises a and specifically which relate argument for on remand based a statute particular, lays in briefs. Rule out a filing enacted after in the of the briefs specific contents, listing briefs sepa six Indeed, case. it seems a remand rate sections a brief must contain. only motion was appropriate filing the for Motions, hand, the other are limited the propose submit order to (four only represent three of the case a 1; a VCAA remand in this the appellant) requirements, content set closed, already supple was and a notice of 27(a). forth Rule The structure of these mental authorities could not properly be special and rules the requirements the argument.2 used to raise Al the remand filing might of a brief be seen implying as though timing the of the remand that a brief be the whereby should vehicle nearly year one major after the enactment of the arguments substantive are made in However, above, VCAA, a case. as shown Rule 27 is troubling, it should not be over 1. On November policy underlying Court issued In Mise. No. 4-00. Such a re Veterans Claims reading Assistance Act would anomalous effect of of 4-00, (Nov. 13, Misc. No. 2000 WL 33316768 reading liberalizing Mise. 4-00 not a 27)), (temporarily Vet.App. located at 15 rules, suspension of the but rather as certain regarding filing which stated as follows of new, having imposed tighter a stricture on a relating to motions the VCAA: cases, special namely class of those affected that, [It ORDERED is] effective on the Any reading the VCAA. of that Order VCAA, of the enactment of the and place position acting, would the Court in a until notice further as to decidedly pro-veteran piece to a (1) any party, parties jointly, or (Mise. legislation recognized No. 4-00 also (without leave the Court or unless "may disposition the VCAA affect the Court), file, otherwise ordered and many appeals”), decidedly in a anti-veteran 25(c), Rule serve under other fashion. paper addressing potential applicability ap- VCAA the 28(g) 2. of the Court's Rules of Practice (Citation peal; 28(g) of Sup- and Procedure states: Authorities) plemental suspended as to (g) Supplemental Citation of Authorities. the VCAA.... pertinent significant When authorities added). August 27 (emphasis Id. at party come attention of after the 2001, the Court issued re: Rescission of party's brief has been filed or after oral Misc. Misc. No. decision, argument party but before the (2001), CCCXCI which rescinded Misc. No. 4- Clerk, letter, promptly shall advise the notice, Septem with advance as of copy setting parties, with to all other forth ber Misc. No. 6-01 stated that "the authority readily the citations. If the is not Court will rescind Mise. No. 4-00 thus system, Reporter party available applicability reinstate the Court’s full " provide copy. shall the Clerk with a Thus, added). (emphasis rules to all cases if page letter must refer of the brief or the Court’s Rules are read allow point argued orally to a to which each any point, substantive at even Mise. pertains, citation letter must state special category No. 4-00 created a of "VCAA motions”, argument sup- the reasons Mise. No. would 6-01 seem have plemental Any response citations. quo Any reading must be restored status ante. together promptly similarly made be both miscellaneous must limit- orders exclude September VCAA-remand motions filed after ed. added). very 28(g) be would inconsistent with the R. (i.e., stage any pre-judgment ted almost capable be that the motion was looked because, they copy filed as soon as a of the BVA at such a late date ing filed It reasons, briefing). had failed is filed or well among other has never declined appeal, to act on the that the Court by that time 17,1998. February such a motion filed on was Providing ground that it is out-of-time. used as a vehicle this motion Nor was support accepting further for the Court’s argu- significant substantive presenting any stage in the filing of a motion at appeal; of an issue on ment on the merits process is the well- deliberative Court’s might appropriate it to de- only then accepted parties practice permitting subterfuge motion a brief. clare the file, completed, joint is long briefing Characterizing the instant VCAA-remand to disposition for a merits lend supplemental a brief would motion as right up to the courtroom settle a case attempt an to find appearance door. to returning order basis having to consider it.

avoid Dyment Opinion B. Furthermore, although the Regarding the dissent’s reference to strong represented, poli- is there is a here Dyment opinion, do not believe that I that in support of a liberal attitude cy reason any bearing question on the case has motions, namely, to as- toward substantive to eyes this should close its whether plead- pro litigants, for whom strict sist se What consider- impose requirements could substantial ing very give to is a ation we the motion justice. to Court of roadblocks from whether we should different matter recognized Appeals for the Circuit Second do, I of it. how- exclude all consideration by construing principle recently ever, my colleague that agree with nominally procedural motion to be a sub- Dyment opinion very implicated is much pro se preserved motion that stantive appeal, specifically of this litigant’s appeal.3 to a remand as whether is called pre-VCAA BVA

Finally, practice under our that, the enactment of the historical- connection with my understanding have motions for remand been submit- VCAA.4 ly, why general rule We see reason explained: no 3. The Court pro se motions filed apply should not litigants gen pro It well settled that se is [of section 2255 title erally are entitled a liberal construction motion, nominally U.S.Code]. Where a "to pleadings, which should be read their seeking an contains alle- extension they sug strongest arguments that raise the gations support under sufficient a claim Henderson, gest.” 89 F.3d Graham empowered, court is section district omitted); (2d Cir.1996) (quotation 79 marks required, and in some instances Kerner, 404 U.S. 92 see Haines as a to treat that motion under Haines (1972) (per 30 L.Ed.2d 652 ... S.Ct. relief under section motion for substantive curiam) (holding allegations pro in a se stringent complaint "held to less stan (2d States, 83 Green v. United pleadings drafted law dards than formal Cir.2001). States, yers”); v. United Liriano curiam) (2d Cir.1996) Holliday v. (per (pro se 4. See ("the provisions of that all "substantially Court holds supplemental consti brief applicable claims potentially the VCAAare U.S.C.] [28 tutes the motion envisioned enact- 2244(b)(3)(A), pending on the date of VCAA’s § satis and will be treated as recons, denied, ment”), requirement"). mot. fying the motion (other point, plication provisions latter it of its than sec 7), would, longer retroactively applica nevertheless, no tion Secretary VCAA is authority ble to a Board decision issued before the have had the to continue apply (November August VCAA’s enactment regulations under the Court. See on appeal pre-VCAA authority in effect on the date Bernklau, Dyment, supra; supra. see also regulations; of the issuance However, prec- whether, the Court has not issued if question answered opinion interpreting Dyment, affirmative, edential would also have I opinion believe authority should be apply had the those regula See, preceded by full the effect of e.g., retroactively.10 tions 38 U.S.C. Dyment, including briefing 501, 5103(a), 7722(d). as to §§ wheth Duty regulations er the VA to Assist is IVERS, Judge, dissenting: (and August sued nowhere in Dyment7) referenced application would vote Court not under Karnas v. Derwinski8 pleading captioned veteran’s pre-VCAA-enactment in this as a motion for remand BVA decision nor where neither VA the VCAA. Briefing this case closed on Feb- 2, 2000, BVA had issued a that had ruary decision be with the submission of the nonappealable 15, come final and reply before that veteran’s brief. On November date9; (2) whether, 2000, if the automatically VCAA were recalled 16, 2000, construed not to ap judgment authorize retroactive in the October order), 9, 2000, (per 327 curiam any mot. ... as well as to claim filed for full denied, (en Vet.App. review 15 21 that but before not decided of [VA]as order). ”). that date' Holliday, Derwinski, 308, See (holding, 5. 14 at 8. 285 Karnas v. 1 313 alia, provisions inter that all of VCAA (holding regu that "where the law or retroactively applicable pending changes to claims after a lation claim has been filed or VCAA); reopened of enactment of VA ju Gen. Coun. but before the administrative or 11-00, 27, (Nov. 2000) ("all p. concluded, Prec. 4 of process the dicial has been the provisions apply [VCAA]'s to claims filed on version favorable to mo[re] [the] or after November apply Congress provided as well as to should ... unless finally claims filed before then not permitted [Secretary] but decid otherwise or the to do date”); Landgraf v. as of that USI Film otherwise (empha and did so” cf. 270, Products, 244, 1483, added)). 511 114 S.Ct. sis (1994) ("[s]ince 128 early L.Ed.2d 229 Court, give we to have declined 7104(b), 7266; 7105(c), §§ 9. See 38 U.S.C. burdening pri retroactive effect to statutes 45,620, 45,620 29, 2001) Fed.Reg. (Aug. (pro rights Congress vate had unless made clear provisions viding, except relating as to two to added)). its intent” claims, reopening provisions of "the of apply any this final rule to claim benefits 45,620, 45,630-32 Fed.Reg. (Aug. 6. received on or VA after November 2001) (to 3) pt. (Duty codified at 38 C.F.R. as well as to filed claim before that date regulations, date”); amending yet to Assist 38 C.F.R. but VA not decided of 3.102, 3.156, 3.159, 3.326). 11-00, §§ supra VA Gen. Coun. Prec. note (holding generally applicable VCAA to 9, 2000,] filed [November "claims before but Pnncipi, 7. But see Bernklau v. 291 F.3d date"); finally not decided as of see ("[w]e also (Fed.Cir.2002) 806 n. 9 note Bernklau, supra note 7. regulations new associated with the VCAA apply 'any filed claim before that date but yet supra not decided after [VA] November 10. See note — -, 00-7122, 2002 No. WL Assis re Claims to In Veterans (Fed.Cir. Dy May No. Order Act Misc. tance (Nov. 2000), which ment 2000 WL 33316768 (Fed.Cir.2002). Dy further In both Bernklau party, either without allowed also ment, or other held that section file motion Federal Circuit leave 3(a) the assis applicabili contains addressing potential the VCAA-which paper provisions of that include ty tance claimants VCAA (Citation 28(g) section suspended duty-to-assist provisions appeal, and Authorities) as to claims that not retroactive as Supplemental 5103A—is enact September Mise. Or consideration before the were under VCAA. rescinded, auto and the of the VCAA. Bemklau der No. 4-00 was ment concerning not to pleadings Dyment, of whether or matic allowance issue claim outside the Rules remand the veteran’s the VCAA hence, moot, Re In re: was rescinded. has become leave Court VCAA J/,-00, of the issue Mise. Order need for further consideration scission of Or the veter Act Mise. or not Claims Assistance as whether Therefore, 6-01, Vet.App. (Aug. der No. CCCXCI submission also moot. an’s 2001). almost respectfully On November dissent. VCAA, year passage one after the rescission

and more than weeks Court re Mise. Order captioned as the veteran’s

ceived to the

a motion for remand above, noted As

VCAA. for months when had been closed pleading. received the veteran’s BELLEZZA, Appellant, Frank L. widely Abra- epigram An attributed in this case: appropriate Lincoln is ham Anthony PRINCIPI, J. you if many legs dog does a How Affairs, Appellee. call Four. You can leg? count his tail as to, it doesn’t leg you a tail a want but 99-1038. most recent leg. it a The veteran’s make Appeals States Court of United pleading, although captioned as for Veterans Claims. brief, substance, is, supplemental Nor did he has filed out time. Argued Feb. brief or supplemental file the veteran 4, 2002. June Decided addressing applicability of permitted under the time during VCAA Therefore, No. 4-00.

Mise. Order cap- should not remand. as a motion for

tioned analysis notwithstanding,

The above VCAA

issue of remand by the U.S. recently been addressed Appeals for Federal Circuit

(Federal Circuit) in Bernklau

Case Details

Case Name: Kuzma v. Principi

Court Name: United States Court of Appeals for Veterans Claims

Date Published: May 29, 2002

Citation: 16 Vet. App. 140

Docket Number: 98-0295

Court Abbreviation: Vet. App.