Lead Opinion
ORDER
On December 7, 2000, the Court issued an order granting the Secretary’s November 13, 2000, motion for remand. The July 30, 1999, decision of the Board of Veterans’ Appeals, which denied the appellant’s claim for entitlement to a rating in excess of 10% for post-traumatic stress disorder and for a total disability rating based on individual unemployability, was vacated and the matter remanded as required by the recent enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub.L. No. 106-475,114 Stat. 2096 (Nov. 9, 2000). On December 27, 2000, the appellant filed a motion for reconsideration and for a panel decision, urging the Court to
It has been the practice of this Court from the outset that, as a general rule, when an undoubted error requires that the Court order a remand, the Court will not address other putative errors raised by the appellant that are not necessary in effecting the proposed disposition. In short, if the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand. In Best v. Principi,
When this Court has, by single judge or otherwise, broadened its opinion beyond what is required, it has been the exception, not the rule. The Court’s practice of limiting its opinions to the issue necessary to effect a remand is consistent with the jurisdictional statute under which the Court operates. That statute states that “in any action brought under this chapter, the Court of Appeals for Veterans Claims, to the extent necessary to its decision and when presented shall ... (1) decide all questions of law.” 38 U.S.C. § 7261(a) (emphasis added). Of course, within the statutory definition of “to the extent necessary,” there may be circumstances that would cause the Court, in its discretion, to touch upon another issue, whether raised by the appellant or not. However, such matters will be rare and will fall under the rubric of the “Court’s discretion.”
Considering only the issues necessary to the disposition of the case, or, in other words, deciding a case on the narrowest possible grounds, is the tradition in general appellate practice. See, e.g., United States v. Shipsey,
The statute and cases cited above which counsel judicial restraint are not only good law, but also make good, common sense. The new adjudication ordered by this Court is just that-a new adjudication. It will, necessarily, be conducted in an entire
If this Court were to “lay down the law,” as the dissent suggests we should, given the different factual and legal context in which the new adjudication will take place, such an opinion would be nothing more than advisory, amounting to awarding declaratory relief, which we are not authorized to do. Nagler v. Derwinski,
Judge Steinberg’s insertion of an EAJA rational for broadening our decisions beyond what is necessary to effect a disposition on the merits is also troubling. He would do this by labeling some allegations of error “colorable” and the rest, presumably, “non-colorable.” Leaving aside that such labeling seems to be his own invention with a basis in neither statutory nor case law, it seems most unusual that a court would litigate the merits of a case, even partly, for potential EAJA purposes. In fact, to do so would be to render a decision, at least in part, as to an issue (EAJA) neither “presented” nor “necessary,” to use the words of our jurisdictional statute. Moreover, such an adjudication would trigger two evils. By considering only “colorable” allegations of error, as Judge Steinberg would have us do, our action could and would be construed as an invitation to file an EAJA application, with assured approval, where “colorable” arguments are found or precluding successful EAJA applications where the arguments are found “non-colorable.” Surely it must be clear that in the labeling process which finds certain issues “colorable” (meritorious) and others “non-colorable” (non-meritorious), the Court is actually adjudicating both issues with consequences for both EAJA (assuming that the dicta in Cullens v. Gober,
Upon consideration of the foregoing and the record on appeal, it is
ORDERED, by the single judge, that the appellant’s motion for reconsideration is DENIED. It is further
ORDERED, by the panel, that the appellant’s motion for a panel decision is DENIED.
Dissenting Opinion
dissenting:
I agree that this case should be remanded for the Board of Veterans’ Appeals (BVA or Board) to consider potentially applicable provisions of the Veterans Claims Assistance Act of 2000, Pub.L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA).
I. The Court Should Address All Colorable Arguments of Prejudicial BVA Error
A. Addressing Multiple Grounds for Remand is Within Court’s Proper Appellate Role
The appellant has made forceful and colorable arguments that the Board’s adjudication of his claim contained errors that are capable of repetition on remand.
It is undeniable that, as noted in the December 2000 single-judge order remanding this appeal, on remand the appellant will be free to submit additional evidence and argument on the remanded claim. See Kutscherousky v. West,
I believe that it would be to the benefit of both the parties and the system of claims adjudication and judicial review for the Court to act to help avoid such delay and repetition where Board errors that may have affected the outcome of the Board decision and are reasonably susceptible of repetition on remand are presented to the Court. Cf. Dambach v. Gober,
B. Limitation to Consideration of Colorable Arguments for Remand
I have a twofold rationale for my position that the Court should review an appellant’s colorable non-VCAA-based arguments that would lead to a remand to the Board independent of the VCAA. First, on remand the Board will be required to re-adjudicate the claim in light of the enactment of the VCAA and compare that result to the result that the appellant should have received prior to the enactment of the VCAA. See Karnas v. Derwinski,
Second, as to my rationale for the Court’s reviewing only arguments that would produce a remand for the appellant (as opposed to an affirmance of the BVA’s pre-VCAA decision), I believe that it is unwise as a policy matter, and may even be ultra vires, for the Court, before the Board has considered the effect of the VCAA, to engage in judicial review that would, by affirming the BVA decision on appeal regarding its pre-VCAA denial of the benefit sought, prevent VA from awarding the benefit sought on remand based on pre-VCAA law. Cf. Nolen v. Gober,
C. Other Considerations
Furthermore, I do not believe that we should be blind to the potential pitfalls that the Court’s approach will have in the case of a represented appellant in the event of a subsequent application for attorney fees and expenses pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(2)(F) (EAJA). These pitfalls emerge starkly from the debate between the dueling separate concurring opinions in Cullens v. Gober on the question of the wisdom of extending the Court’s holding there beyond the context of an EAJA case where the merits appeal was dismissed as moot as a result of the parties’ settlement agreement; the Court held there that it “can, and must, look beyond the [mjotion [to dismiss because of a settlement between the parties], [joint a]greement, and Court order [granting the motion to dismiss] to determine whether the position of the United States at the administrative level was substantially justified.” Cullens,
If Judge Farley’s concurring view in Cullens prevails, and the Court ultimately determines that post-merits-stage review
I want to stress that what result the Court reaches on the merits of a case should not be influenced by any consideration of whether or not an EAJA application will ultimately be filed. The above-described complication merely reinforces my belief that if we are presented during the merits litigation with BVA adjudication errors we should generally hold them to be such as part of the merits review of the appeal. In the case of a pro se appellant, I believe that the points set forth in the first five paragraphs of this dissent compel the position that I have taken herein. Hence, the practice I would follow would not be, notwithstanding the majority’s assertion to the contrary, the “EAJA tail ... wagging the merits dog.”
II. The Court’s Practice of Addressing Multiple Grounds for Remand and Jurisdiction to Do So
The majority here appears to articulate a maxim that once the Court identifies “an undoubted error” made by the Board, the Court generally should not consider any other Board errors. As I said at the outset of this dissent, such a general guideline for the exercise of judicial discretion is not unreasonable, although it is not one that I would follow without regard to the situation-and would not follow in this case. However, the majority goes on to cloud the situation by seeming to premise its viewpoint on some kind of jurisdictional basis. If the majority does not wish to
“It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice” unless it is “absolutely clear that the alleged wrongful behavior could not reasonably be expected to recur.”
Buckhannon Board and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources,
A. Longstanding Court Precedent Addressing Multiple Remand Grounds
The first and most obvious flaw in the majority’s position is the bald assertion, with no supporting authority, that it “has been the practice of this Court from the outset that, as a general rule, when an undoubted error requires that the Court order a remand, the Court will not address other putative errors raised by the appellant that are not necessary in effecting the proposed disposition.” Ante at 38. A simple perusal of the Court’s precedential opinions demonstrates that this Court has never articulated or followed a “one-re-niand-ground per customer” practice. From the beginning, the Court has issued opinions that articulated multiple grounds for remand, as well as opinions that provided guidance, separate and apart from the basis for remand, to the Board as to its readjudieation of the remanded claim.
As to the majority’s assertion that it “is the tradition in general appellate practice” to decide a case on the “narrowest possible grounds”, ante at 38, I note that the majority lacks the authority to make any such holding because the Court has, as shown above, frequently issued opinions that are at odds with any such “narrowest possible grounds” rule. See Bethea v. Derwinski,
B. Undefined Term “Undoubted Error”
Besides failing to address clear precedent to the contrary, a second flaw is the majority’s apparent application of the jurisdictional doctrine of mootness to the consideration of other than “an undoubted error”, and the majority’s failure to define that term. Presumably, the majority believes that, a failure to consider the VCAA is “an undoubted error”
C. Jurisdiction Predicated on Valid Notice of Disagreement
Further, there is the fact that this Court’s appellate jurisdiction to review a final BVA decision timely appealed here, see 38 U.S.C. § 7266(a), is premised not on whether “an undoubted error” has been
D. VCAA Remand Does Not Render Other Issues Moot
Moreover, in a case such as this one where a claim is remanded pursuant to Kamas, supra, the issue whether the appellant could be entitled to the benefit sought on appeal under the law as it existed prior to the enactment of the VCAA is still very much in contention because Kar-nas requires consideration of both old and new law, with the ultimate application of the law that is more favorable to the claimant. Thus, a simple vacatur of a Board denial of a claim and remand for the Board to consider the VCAA does not render all other issues as to that claim moot; it is certainly not “absolutely clear that the alleged wrongful behavior [by the Board] could not reasonably be expected to recur”, Buckhannon, supra (internal quotation marks omitted; citation omitted). On the other hand, if it is the majority’s position that once the Court vacates a Board decision based on “an undoubted error”, that Board decision no longer exists and thus the matters raised therein are moot, I note that the Court is not ultimately divested of its statutory jurisdiction until the Court’s mandate has issued, see U.S. Vet. App. R. 41(b), and when that occurs the Court is divested of jurisdiction over the entire claim — including the issue that served as the basis for remand.
Thus, I fail to see how a colorable argument as to a basis for remand could be mooted by virtue of the Court’s having identified “an undoubted error”. I can understand why the Court might not choose to exercise its jurisdiction over such an argument in certain instances, and, as I have said above, I have less quarrel with the majority’s decision as a matter of the exercise of discretion (although I disagree with it in this particular case, as my earlier discussion in part II makes clear). However, as indicated above, I believe that any suggestion that the Court lacks jurisdiction to consider such argument is unsustainable and inconsistent with controlling precedent.
III. Conclusion
For all of the foregoing reasons, I would grant the appellant’s motion for a panel decision and review the colorable allegations of errors that he makes before this Court, so that, if the Court were to agree with the appellant and find that the Board had made a material error that would if not corrected likely be prejudicial to the outcome of the appellant’s claim on remand, the Secretary could then ensure that such error or errors would not recur in the subsequent readjudication on remand. See Stegall, supra.
Notes
. See Holliday v. Principi,
. The appellant asserts, inter alia, that the Board of Veterans' Appeals (Board or BVA) failed under 38 U.S.C. § 7104(a) to consider probative evidence in support of his claim (Brief (Br.) at 15-18); mischaracterized the contents of an October 1997 examination report and of Social Security Disability records (Br. at 18-21); and failed to consider adequately the benefit-of-the-doubt rule set forth in 38 U.S.C. § 5107(b), as it existed at the time of the Board decision, and the provisions of 38 C.F.R. § 4.7 (2000) (Br. at 21-23).
. It is, indeed, ironic that my colleagues and I are, in effect, each suggesting that the approach of the other would result in dispositions that could be, in a sense, advisory in nature. Although I do not accept that characterization of my approach, I believe that the Court is on far sounder grounds in deciding a merits issue at the time of the merits litigation, when the disposition can affect the merits outcome on remand, than in deciding that ground only for purposes of litigation under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(2)(F) (EAJA).
. In all candor, of course, I must acknowledge that a represented appellant probably has a better chance of successfully presenting a non-VCAA ground for remand. That is, after all, what counsel are for-to make the best arguments for their clients. Hence, it is really "the attorney-representation tail wagging the merits dog”. Whether or not EAJA fees would follow from such a successful non-VCAA argument would depend on the provisions of EAJA law in 28 U.S.C. § 2412(d) and our caselaw. See, e.g., Cullens v. Gober,
. There are several opinions published in Volume 1 of West’s Veterans Appeals Reporter in which one or both of the judges in the majority here joined that either assigned multiple errors to the Board or provided what would appear to contain an "advisory opinion” under the rationale set forth by the majority today. See, e.g., Schafrath v. Derwinski,
. In addition to the 14 Vet.App. cases cited in note 8, infra, members of the majority in the instant case have written or joined in a vast number of opinions that remanded a claim based on more than one Board error or that provided additional instruction beyond the remand ground. See, e.g., Ralston v. West,
Indeed, in a case decided on March 21, 2001, one of the judges in the majority, after holding that a "remand is required” for "re-adjudication in light of the VCAA” as to a certain claim (for Ghon's complex), went on to point out a specific BVA adjudication mistake as to that claim, as follows:
Further, in adjudicating claims, the Board is required to base its decisions upon all evidence and material of record and to consider all applicable provisions of law and regulation. 38 U.S.C. § 7104(a); see also 38 C.F.R. § 3.303(a) (2000). The Board must provide an adequate written statement of the reasons or bases for its findings and conclusions on "all material issues of fact or law presented on the record.” 38 U.S.C. § 7104(d)(1); see also Gilbert v. Derwinski,1 Vet.App. 49 , 56-57 (1990). The Court agrees with the appellant that in denying an increased rating for Ghon's complex, the Board erroneously failed to discuss a May 1998 VA medical opinion....
Williams v. Principi, No. 99-2255,
. See Holliday,
. See Sachs, Nolen, Campbell, Timberlake, Stone, and McGrath, all supra.
. See, e.g. Nolen v. Gober,
.I am puzzled as to how the Board could have made an "error” by not considering a law not yet enacted at the time of the Board decision, but that is the least of my concerns at this point.