SHINSEKI, SECRETARY OF VETERANS AFFAIRS v. SANDERS
No. 07-1209
Supreme Court of the United States
Argued December 8, 2008—Decided April 21, 2009
556 U.S. 396
*Together with Shinseki, Secretary of Veterans Affairs v. Simmons (see this Court‘s Rule 12.4), also on certiorari to the same court.
Christopher J. Meade argued the cause for respondent Simmons. With him on the brief was Anne K. Small. Mark R. Lippman argued the cause for respondent Sanders. With him on the brief was Michael A. Morin.†
JUSTICE BREYER delivered the opinion of the Court.
In these two civil cases, the Department of Veterans Affairs (VA) denied veterans’ claims for disability benefits. In both cases the VA erroneously failed to provide the veteran with a certain kind of statutorily required notice. See
In our view, the Federal Circuit‘s “harmless-error” framework is too complex and rigid, its presumptions impose unreasonable evidentiary burdens upon the VA, and it is too likely too often to require the Court of Appeals for Veterans Claims (Veterans Court) to treat as harmful errors that in fact are harmless. We conclude that the framework conflicts with established law. See
A
The law entitles veterans who have served on active duty in the United States military to receive benefits for disabilities caused or aggravated by their military service. The Veterans Claims Assistance Act of 2000 requires the VA to help a veteran develop his or her benefits claim.
Repeating these statutory requirements in its regulations, the VA has said it will provide a claimant with a letter that tells the claimant (1) what further information is necessary to substantiate his or her claim; (2) what portions of that information the VA will obtain for the claimant; and (3) what portions the claimant must obtain.
B
The VA‘s regional offices decide most claims. A claimant may appeal an adverse regional office decision to the VA‘s Board of Veterans’ Appeals, an administrative board with the power to consider certain types of new evidence.
A specific statute requires the Veterans Court to “take due account of the rule of prejudicial error.”
C
In the first case, Woodrow Sanders, a veteran of World War II, claimed that a bazooka exploded near his face in 1944, causing later blindness in his right eye. His wartime medical records, however, did not indicate any eye problems. Indeed, his 1945 discharge examination showed near-perfect vision. But a 1948 eye examination revealed an inflammation of the right-eye retina and surrounding tissues—a condi
Forty-two years later, Sanders asked the VA to reopen his benefits claim. He argued that the 1944 bazooka explosion had hurt his eye, and added that he had begun to experience symptoms—blurred vision, swelling, and loss of sight—in 1946. He included a report from a VA doctor, Dr. Joseph Ruda, who said that “[i]t is not inconceivable that” the condition “could have occurred secondary to trauma, as stated ... by” Sanders. A private ophthalmologist, Dr. Gregory Strainer, confirming that Sanders’ right retina was scarred, added that this “type of ... injury ... can certainly be concussive in character.” App. to Pet. for Cert. 26a–27a.
In 1992, the VA reopened Sanders’ claim. Id., at 29a. After obtaining Sanders’ military medical records, the VA arranged for a further medical examination, this time by VA eye specialist Dr. Sheila Anderson. After examining Sanders’ medical history (including records of the examinations made at the time of Sanders’ enlistment and discharge), Anderson agreed with the medical diagnosis but concluded that Sanders’ condition was not service related. Since Sanders’ right-eye “visual acuity” was “20/20” upon enlistment and “20/25” upon discharge, and he had “reported decreased vision only 6 months prior” to his 1948 doctor‘s “visit,” and since “there are no other signs of ocular trauma,” Anderson thought that Sanders’ condition “is most likely infectious in nature, although the etiology at this point is impossible to determine.” “Based on the documented records,” she concluded, “the patient did not lose vision while on active duty.” The VA regional office denied Sanders’ claim. Ibid.
Sanders sought Board review, and in the meantime he obtained the opinion of another VA doctor, Dr. Duane Nii, who
Sanders then appealed to the Veterans Court. There he argued, among other things, that the VA had made a notice error. Sanders conceded that the VA had sent him a letter telling him (1) what further information was necessary to substantiate his claim. But, he said, the VA letter did not tell him (2) which portions of the information the Secretary would provide or (3) which portions he would have to provide. That is to say, he complained about notice errors Type Two and Type Three.
The Veterans Court held that these notice errors were harmless. It said that Sanders had not explained how he would have acted differently, say, by identifying what different evidence he would have produced or asked the Secretary to obtain for him, had he received proper notice. Finding no other error, the Veterans Court affirmed the Board‘s decision.
D
The Court of Appeals for the Federal Circuit reviewed the Veterans Court‘s decision and held that the Veterans Court was wrong to find the notice error harmless. The Federal Circuit wrote that when the VA provides a claimant with a notice letter that is deficient in any respect (to the point where a “reasonable person” would not have read it as pro
E
In the second case before us, the claimant, Patricia Simmons, served on active military duty from December 1978 to April 1980. While on duty she worked in a noisy environment close to aircraft; after three months she began to lose hearing in her left ear; and by the time she was discharged, her left-ear hearing had become worse. Soon after her discharge, Simmons applied for disability benefits. The VA regional office found her hearing loss was service connected; but it also found the loss insufficiently severe to warrant compensation. In November 1980, it denied her claim.
In 1998, Simmons asked the VA to reopen her claim. She provided medical examination records showing further loss of hearing in her left ear along with (what she considered related) loss of hearing in her right ear. The VA arranged for hearing examinations by VA doctors in 1999, 2001, and 2002. The doctors measured her left-ear hearing loss, ranking it as moderate to severe; they also measured her right-ear hearing loss, ranking it as mild to moderate. After comparing the results of the examinations with a VA hearing-loss compensation schedule, the regional office concluded that Simmons’ left-ear hearing loss, while service connected, was not severe enough to warrant compensation. At the same time, the regional office concluded that her right-ear hearing loss was neither service connected nor
In 2003, Simmons appealed to the Veterans Court. Among other things, she said that she had not received a notice about (and she consequently failed to attend) a further right-ear medical examination that the VA later told her it had arranged. She added that, in respect to her claim for benefits for loss of hearing in her left ear, the VA had made a Type One notice error (i. e., it had failed to tell her what further information was needed to substantiate her claim). Simmons conceded that she had received a letter from the VA. But the letter told her only what, in general, a person had to do to show that a hearing injury was service connected. It did not tell her anything about her specific problem, namely, what further information she must provide to show a worsening of hearing in her left ear, to the point where she could receive benefits.
The Veterans Court agreed with Simmons, and it found both errors prejudicial. In respect to Simmons’ left-ear hearing loss (the matter at issue here), it pointed out that it had earlier said (in Mayfield, 19 Vet. App., at 120–124) that a Type One notice error has the “natural effect’ of producing prejudice.” The court added that its “revie[w] [of] the record in its entirety” convinced it that Simmons did not have “actual knowledge of what evidence was necessary to substantiate her claim” and, had the VA told Simmons more specifically about what additional medical information it needed, Simmons might have “obtained” a further “private” medical “examination substantiating her claim.” App. to Pet. for Cert. 81a. The Veterans Court consequently remanded the case to the Board.
The Government appealed the Veterans Court‘s determination to the Court of Appeals for the Federal Circuit. And that court affirmed the Veterans Court‘s decision on the basis of its decision in Sanders. Simmons v. Nicholson, 487 F. 3d 892 (2007).
We granted certiorari in both Sanders’ and Simmons’ cases in order to determine the lawfulness of the Federal Circuit‘s “harmless-error” holdings.
II
The Federal Circuit‘s holdings flow directly from its use of the “harmless-error” framework that we have described. Supra, at 404. Thus we must decide whether that framework is consistent with a particular statutory requirement, namely, the requirement that the Veterans Court “take due account of the rule of prejudicial error,”
A
We believe that the statute, in stating that the Veterans Court must “take due account of the rule of prejudicial error,” requires the Veterans Court to apply the same kind of “harmless-error” rule that courts ordinarily apply in civil cases. The statutory words “take due account” and “prejudicial error” make clear that is so. Congress used the same words in the Administrative Procedure Act (APA).
B
Three related features of the Federal Circuit‘s framework, taken together, convince us that it mandates an approach to harmless error that differs significantly from the approach courts normally take in ordinary civil cases. First, the framework is complex, rigid, and mandatory. In every case involving a notice error (of no matter which kind) the Veterans Court must find the error harmful unless the VA “demonstrate[s]” (1) that the claimant‘s “actual knowledge” cured the defect or (2) that the claimant could not have received a benefit as a matter of law. Suppose the notice error, as in Sanders’ case, consisted of a failure to describe what additional information, if any, the VA would provide. It might be obvious from the record in the particular case that the error made no difference. But under the Federal Circuit‘s rule, the Veterans Court would have to remand the case for new proceedings regardless.
We have previously warned against courts’ determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record. See Kotteakos v. United States, 328 U. S. 750, 760 (1946). The federal “harmless-error” statute, now codified at
The Federal Circuit‘s presumptions exhibit the very characteristics that Congress sought to discourage. In the cases before us, they would prevent the reviewing court from directly asking the harmless-error question. They would prevent that court from resting its conclusion on the facts and circumstances of the particular case. And they would require the reviewing court to find the notice error prejudicial even if that court, having read the entire record, conscientiously concludes the contrary.
Second, the Federal Circuit‘s framework imposes an unreasonable evidentiary burden upon the VA. How is the Secretary to demonstrate, in Sanders’ case for example, that Sanders knew that he, not the VA, would have to produce more convincing evidence that the bazooka accident caused his eye injury? How could the Secretary demonstrate that there is no evidence anywhere that would entitle Sanders to benefits? To show a claimant‘s state of mind about such a matter will often prove difficult, perhaps impossible. And even if the VA (as in Sanders’ case) searches the military records and comes up emptyhanded, it may still prove difficult, or impossible, to prove the nonexistence of evidence lying somewhere about that might significantly help the claimant.
We have previously pointed out that setting an evidentiary “barrier so high that it could never be surmounted would
Third, the Federal Circuit‘s framework requires the VA, not the claimant, to explain why the error is harmless. This Court has said that the party that “seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted.” Palmer v. Hoffman, 318 U. S. 109, 116 (1943); see also Tipton v. Socony Mobil Oil Co., 375 U. S. 34, 36 (1963) (per curiam); United States v. Borden Co., 347 U. S. 514, 516–517 (1954); cf. McDonough Power Equipment, Inc. v. Greenwood, 464 U. S. 548, 553 (1984); Market Street R. Co. v. Railroad Comm‘n of Cal., 324 U. S. 548, 562 (1945) (finding error harmless “in the absence of any showing of ... prejudice“).
Lower court cases make clear that courts have correlated review of ordinary administrative proceedings to appellate review of civil cases in this respect. Consequently, the burden of showing that an error is harmful normally falls upon the party attacking the agency‘s determination. See, e. g., American Airlines, Inc. v. Department of Transp., 202 F. 3d 788, 797 (CA5 2000) (declining to remand where appellant failed to show that error in administrative proceeding was harmful); Air Canada v. Department of Transp., 148 F. 3d 1142, 1156–1157 (CADC 1998) (same); Nelson v. Apfel, 131 F. 3d 1228, 1236 (CA7 1997) (same); Bar MK Ranches v. Yuetter, 994 F. 2d 735, 740 (CA10 1993) (same); Camden v. Department of Labor, 831 F. 2d 449, 451 (CA3 1987) (same); Panhandle Co-op Assn. v. EPA, 771 F. 2d 1149, 1153 (CA8 1985)
To say that the claimant has the “burden” of showing that an error was harmful is not to impose a complex system of “burden shifting” rules or a particularly onerous requirement. In ordinary civil appeals, for example, the appellant will point to rulings by the trial judge that the appellant claims are erroneous, say, a ruling excluding favorable evidence. Often the circumstances of the case will make clear to the appellate judge that the ruling, if erroneous, was harmful and nothing further need be said. But, if not, then the party seeking reversal normally must explain why the erroneous ruling caused harm. If, for example, the party seeking an affirmance makes a strong argument that the evidence on the point was overwhelming regardless, it normally makes sense to ask the party seeking reversal to provide an explanation, say, by marshaling the facts and evidence showing the contrary. The party seeking to reverse the result of a civil proceeding will likely be in a position at least as good as, and often better than, the opposing party to explain how he has been hurt by an error. Cf. United States v. Fior D‘Italia, Inc., 536 U. S. 238, 256, n. 4 (2002) (SOUTER, J., dissenting).
Respondents urge the creation of a special rule for this context, placing upon the agency the burden of proving that a notice error did not cause harm. But we have placed such a burden on the appellee only when the matter underlying review was criminal. See, e. g., Kotteakos, supra, at 760. In criminal cases the Government seeks to deprive an individual of his liberty, thereby providing a good reason to require the Government to explain why an error should not upset the trial court‘s determination. And the fact that the Government must prove its case beyond a reasonable doubt justifies a rule that makes it more difficult for the reviewing court to find that an error did not affect the outcome of a
C
Our discussion above is subject to two important qualifications. First, we need not, and we do not, decide the lawfulness of the use by the Veterans Court of what it called the “natural effects” of certain kinds of notice errors. We have previously made clear that courts may sometimes make empirically based generalizations about what kinds of errors are likely, as a factual matter, to prove harmful. See Kotteakos, 328 U. S., at 760–761 (reviewing courts may learn over time that the “natural effect” of certain errors is “‘to prejudice a litigant‘s substantial rights‘” (quoting H. R. Rep. No. 913, 65th Cong., 3d Sess., 1 (1919))). And by drawing upon “experience” that reveals some such “natural effect,” a court might properly influence, though not control, future determinations. See Kotteakos, supra, at 760–761. We consider here, however, only the Federal Circuit‘s harmless-error framework. That framework, as we have said, is mandatory. And its presumptions are not based upon an effort to determine “natural effects.”
Indeed, the Federal Circuit is the wrong court to make such determinations. Statutes limit the Federal Circuit‘s review to certain kinds of Veterans Court errors, namely, those that concern “the validity of ... any statute or regulation ... or any interpretation thereof.”
It is the Veterans Court, not the Federal Circuit, that sees sufficient case-specific raw material in veterans’ cases to enable it to make empirically based, nonbinding generalizations about “natural effects.” And the Veterans Court, which has exclusive jurisdiction over these cases, is likely better able than is the Federal Circuit to exercise an informed judgment as to how often veterans are harmed by which kinds of notice errors. Cf. United States v. Haggar Apparel Co., 526 U. S. 380, 394 (1999) (Article I court‘s special “expertise ... guides it in making complex determinations in a specialized area of the law“).
Second, we recognize that Congress has expressed special solicitude for the veterans’ cause. See post, at 415–416 (SOUTER, J., dissenting). A veteran, after all, has performed an especially important service for the Nation, often at the risk of his or her own life. And Congress has made clear that the VA is not an ordinary agency. Rather, the VA has a statutory duty to help the veteran develop his or her benefits claim. See Veterans Claims Assistance Act of 2000,
III
We have considered the two cases before us in light of the principles discussed. In Sanders’ case, the Veterans Court
How could the VA‘s failure to specify this (or any other) division of labor have mattered? Sanders has pursued his claim for over six decades; he has had numerous medical examinations; and he should be aware of the respect in which his benefits claim is deficient (namely, his inability to show that his disability is connected to his World War II service). See supra, at 403. Sanders has not told the Veterans Court, the Federal Circuit, or this Court what specific additional evidence proper notice would have led him to obtain or seek. He has not explained to the Veterans Court, to the Federal Circuit, or to us how the notice error to which he points could have made any difference. The Veterans Court did not consider the harmlessness issue a borderline question. Nor do we. We consequently reverse the Federal Circuit‘s judgment and remand the case so that the court can reinstate the judgment of the Veterans Court.
Simmons’ case is more difficult. The Veterans Court found that the VA had committed a Type One error, i. e., a failure to tell Simmons what information or evidence she must provide to substantiate her claim. The VA sent Simmons a letter that provided her only with general information about how to prove a claim while telling her nothing at all about how to proceed further in her own case, a case in which the question was whether a concededly service-connected left-ear hearing problem had deteriorated to the point where it was compensable. And the VA did so in the context of having arranged for a further right-ear medical examination, which (because of lack of notice) Simmons failed to attend. The Veterans Court took the “natural effect” of
Some features of the record suggest the error was harmless, for example, the fact that Simmons has long sought benefits and has a long history of medical examinations. But other features—e. g., the fact that her left-ear hearing loss was concededly service connected and has continuously deteriorated over time, and the fact that the VA had scheduled a further examination of her right ear that (had notice been given) might have revealed further left-ear hearing loss—suggest the opposite. Given the uncertainties, we believe it is appropriate to remand this case so that the Veterans Court can decide whether reconsideration is necessary.
We conclude that the Federal Circuit‘s harmless-error framework is inconsistent with the statutory requirement that the Veterans Court take “due account of the rule of prejudicial error.”
It is so ordered.
JUSTICE SOUTER, with whom JUSTICE STEVENS and JUSTICE GINSBURG join, dissenting.
Federal law requires the Court of Appeals for Veterans Claims to “take due account of the rule of prejudicial error.”
Taking the last point first, the Court assumes that there is a standard allocation of the burden of proving harmlessness that Congress meant to adopt in directing the Veterans Court to “take due account of the rule of prejudicial error.”
Thus, the question is whether placing the burden of persuasion on the veteran is in order under the statutory scheme governing the VA. I believe it is not. The VA differs from virtually every other agency in being itself obliged to help the claimant develop his claim, see, e. g.,
The majority‘s other arguments are open to judgment, but I do not see that placing the burden of showing harm on the VA goes so far as to create a “complex, rigid, and mandatory” scheme, ante, at 407, or to impose “an unreasonable evidentiary burden upon the VA,” ante, at 408. Under the Federal Circuit‘s rule, the VA simply “must persuade the reviewing court that the purpose of the notice was not frustrated, e. g., by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law.” Sanders, supra, at 889. This gives the VA several ways to show that an error was harmless, and the VA has been able to shoulder the burden in a number of cases. See, e. g., Holmes v. Peake, No. 06–0852, 2008 WL 974728, *2 (Vet. App., Apr. 3, 2008) (Table) (finding notice error harmless because the claimant had “actual knowledge of what was required to substantiate” his claim); Clark v. Peake, No. 05–2422, 2008 WL 852588, *4 (Vet. App., Mar. 24, 2008) (Table) (same).
The Federal Circuit‘s rule thus strikes me as workable and in keeping with the statutory scheme governing veterans’ benefits. It has the added virtue of giving the VA a strong incentive to comply with its notice obligations, obligations
I would affirm the Federal Circuit and respectfully dissent.