Bobby G. Smith v. Eric K. Shinseki

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 11-3375

BOBBY G. SMITH , APPELLANT ,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE .

Before HAGEL, MOORMAN, and GREENBERG, Judges.

ORDER

Currently before the Court is the parties' September 13, 2013, joint motion to recall the

Court's judgment based on the recent decision of the U.S. Court of Appeals for the Federal Circuit

(Federal Circuit) in Nat'l Org. of Veterans Advocates, Inc. v. Sec'y of Veterans Affairs, 725 F.3d

1312 (Fed. Cir. 2013). The Court denies the parties' motion because it does not demonstrate

satisfaction of the burden of persuasion necessary to support a motion to recall judgment.

I. BACKGROUND

A. National Organization of Veterans Advocates, Inc. v.

Secretary of Veterans Affairs

Since September 9, 2011, the Secretary has been engaged in litigation with the National

Organization of Veterans' Advocates, Inc. (NOVA) regarding a direct final rule VA published in the

Federal Register on August 23, 2011. The new rule (2011 Rule) eliminated veterans' hearing rights

under 38 C.F.R. § 3.103 for hearings before the Board of Veterans' Appeals (Board). Specifically,

the 2011 Rule abrogated the Court's holding in Bryant v. Shinseki, 23 Vet.App. 488 (2010), by

"clarify[ing] that the provisions regarding hearings before the Agency of Original Jurisdiction (AOJ)

do not apply to hearings before the Board."1 76 Fed. Reg. 52572 (Aug. 23, 2011). In a petition to

the Federal Circuit, NOVA asserted that VA's rule violated veterans' hearing rights and was

promulgated in violation of the Administrative Procedure Act (APA), 5 U.S.C. § 553, which requires

a public notice and comment period for substantive rule changes. See Nat'l Org. of Veterans

Advocates, 725 F.3d at 1314.

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The regulation, 38 C.F.R. § 3.103, requires a hearing officer "to fully explain issues still outstanding that are

relevant and material to substantiating the claim" and to "suggest that a claimant submit evidence on an issue material

to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing

raises an issue for which there is no evidence in the record." In Bryant, the Court clarified that these duties applied not

only to hearings before the AOJ, but to hearings before the Board. Bryant, 23 Vet.App. at 493-98.

During the course of the Federal Circuit's review, VA conceded that the rule was improperly

promulgated in violation of the APA and was therefore invalid and void ab initio. Nat'l Org. of

Veterans Advocates, Inc. v. Sec'y of Veterans Affairs, 710 F.3d 1328, 1332 (Fed. Cir. 2013) (show

cause order). VA promised to revoke the 2011 Rule and, beginning March 5, 2012, agreed that the

Board would stop applying it in decisions. Id. at 1331. VA, however, failed to stop the Board from

applying the invalid rule and conducted itself in such a way that prompted the Federal Circuit to

consider sanctions. See id. After further assurances from VA that it would remedy its mistakes, the

Federal Circuit ordered VA to provide "a plan for how VA intends to identify and rectify harms

caused by VA's failure to abide by its representations" and explain "why VA's plan renders sanctions

proceedings unnecessary." Id. at 1335.

Pursuant to the Federal Circuit's order, and under the threat of sanctions, VA submitted a

proposed plan that outlined a broad remedy to identify and notify all claimants harmed by the 2011

Rule, including those who received a Board decision issued between the date of the invalid rule's

publication–August 23, 2011–and the date the Federal Circuit eventually approved the plan–August

5, 2013. Sec'y May 20, 2013, Proposed Plan at 1-2. VA proposed to search a legal database for the

following broad terms to identify affected cases: "hearing on appeal" in combination with 38 C.F.R.

§ 3.103, Bryant, or the Federal Register notice for the 2011 Rule. Id. at 2. The Secretary clarified,

in a subsequent submission to the Federal Circuit, in pertinent part, that "[i]n any case in which the

Board applied the 2011 Rule" and in which the U.S. Court of Appeals for Veterans Claims affirmed

the Board decision and issued its judgment or mandate, "VA will offer to submit . . . a Joint Motion

to Recall Mandate and a Joint Motion for Remand so that the Board may correct any application of

the 2011 Rule." Sec'y Response to Order Requesting Clarification at 3-5; see Nat'l Org. of Veterans

Advocates, Inc. v. Sec'y of Veterans Affairs, 517 Fed. Appx. 940, 941, 2011-7191, 2013 WL

2462191, *1 (Fed. Cir. June 10, 2013) (order seeking clarification of the Secretary's proposed plan).

On August 5, 2013, the Federal Circuit approved VA's plan as amended and declined to issue

sanctions. Nat'l Org. of Veterans Advocates, 725 F.3d at 1314-15.

B. The Present Case

On September 13, 2013, the parties in the present case filed a joint motion to recall the

Court's judgment, citing the August 2013 NOVA decision. By way of background, the appellant in

this case, Bobby G. Smith, filed pro se a Notice of Appeal on October 31, 2011, from an October

26, 2011, Board decision that denied entitlement to an effective date earlier than July 3, 2006, for

the grant of service-connection benefits and assignment of a 100% disability rating for post-traumatic

stress disorder (PTSD). The appellant later obtained counsel and proceeded as represented in all

subsequent stages of the case, including the briefing stage. In his brief, he presented a single

assertion of error: that the Board failed to apply 38 C.F.R. § 3.156(c) (2011).

The appellant did not claim any error in the Board's statement of the law or analysis with

regard to a video conference hearing in September 2011 before the Board. With regard to the

hearing, the Board did not rely on the invalid 2011 Rule, and instead stated:

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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 [ ] 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 to July 3, 2006[,] would be helpful in establishing the

earlier effective [date of the] 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.

Record (R.) at 6.

On May 21, 2013, this Court issued a memorandum decision holding that the Board did not

err in declining to discuss or apply § 3.156(c) and affirming the October 2011 Board decision. Smith

v. Shinseki, U.S. Vet. App. No. 11-3375 (May 21, 2013). On June 11, 2013, the appellant filed a

timely motion for single-judge reconsideration of the Court's decision or, in the alternative, for a

panel decision. None of the appellant's pleadings asserted error in the Board's hearing analysis. By

an order dated July 10, 2013, the Court denied the motion for reconsideration of the single-judge

memorandum decision, granted the motion for a panel decision, and ordered that the single-judge

decision remains the decision of the Court. Judgment entered on August 1, 2013.

As noted above, the parties filed a joint motion to recall the Court's judgment on September

13, 2013. The motion stipulated that "this case was identified through the use of search terms set

forth in VA's plan in the NOVA litigation" and that relief was warranted, given the unusual

circumstances surrounding the NOVA litigation. The parties, however, acknowledged the following

in a footnote:

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.

Jt. Motion for Recall Judgment at 3 n. 1 (internal citations omitted). On September 25, 2013, the

parties filed, out of time, a joint motion to remand the Board's decision for application of the correct

law concerning hearings. Accordingly, the Court will now consider the parties' joint motion for

recall of judgment and remand.

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II. LAW AND ANALYSIS

A. Burden of Persuasion Necessary to Support a Motion to Recall Judgment

Once the Court's judgment has entered in a case–generally 21 days after the decision was

issued–the decision may not be modified, except through appeal to the Federal Circuit. U.S. VET .

APP . R. 41(b). The parties have, unless otherwise specified, 60 days after judgment has entered to

file an appeal to the Federal Circuit. Id. If neither party appeals within 60 days, then the Court's

mandate enters and the "judgment becomes final and is effective as a matter of law pursuant to

38 U.S.C. § 7291." U.S. VET . APP. R. 41(a).

1. Recalling Mandate

Here, the parties ask the Court to recall its judgment in a case in which judgment, but not

mandate, has entered. The Court has previously addressed its power to recall its mandate. In

McNaron v. Brown, the Court stated that it has the discretion to set aside any judgment in a case

"where necessary to protect the integrity of its own processes." 10 Vet.App. 61, 63 (1997) (McNaron

I). The Court further stated that "such discretion may be exercised only for good cause or to prevent

injustice, and only when 'unusual circumstances exist sufficient to justify modification or recall of

a prior judgment.'" Id. (quoting Zipfel v. Halliburton Co., 861 F.2d 565, 567 (9th Cir.1988)). The

Court did not specify whether this "good cause plus unusual circumstances" standard applied to cases

in which only judgment, and not mandate, had entered. However, McNaron I and subsequent

caselaw have applied this standard to cases in which a litigant sought recall of mandate. See

McNaron v. West, 12 Vet.App. 334, 336 (1999) (McNaron II) ("The power of this Court to recall its

mandate 'can be exercised only in extraordinary circumstances. . . . The sparing use of the power

demonstrates it is one of last resort, to be held in reserve against grave, unforeseen contingencies.'"

(quoting Calderon v. Thompson, 523 U.S. 538, 550 (1998))); see also Serra v. Nicholson,

19 Vet.App. 268, 271-72 (2005) ("[The] discretion [to recall mandate] may be exercised only for

good cause or to prevent injustice, and only when 'unusual circumstances exist sufficient to justify

modification or recall of prior judgement.' 'Even if authority to recall mandate still exists, it should

be exercised sparingly, and only upon a showing of exceptional circumstances.'" (internal citations

omitted)). Thus, lest there be any confusion regarding the interpretation of these cases, they stand

for the proposition that recall of mandate requires the parties to show both good cause and unusual

circumstances.

2. Recalling Judgment–The Good Cause Standard

However, the Court has not specifically announced the standard it will apply to determine

whether recall of judgment is appropriate in cases in which mandated has not yet entered. The U.S.

Court of Appeals for the Fourth Circuit (Fourth Circuit) has held that recalling a court's entry of

judgment does not require a showing of unusual circumstances. Wilson v. Ozmint, 357 F.3d 461, 464

(4th Cir. 2004) (stating that a court has broad discretion to recall its judgment, "without need of

finding that the case presents the sort of 'grave, unforseen contingencies,' which would be necessary

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to recall a mandate that had already issued."). Today the Court adopts the Fourth Circuit's reasoning

and holds that the standard for recalling this Court's judgment requires the parties to show good

cause, but does not require the additional showing of "unusual circumstances" required for recall of

mandate.

Logic supports the Court's adoption of this rule. Although the entry of judgment is a

significant event in the life of a case before this Court, it signals only the beginning of the period in

which the appellant may appeal a decision to the Federal Circuit. In that sense, although the Court

has issued its decision, that decision may not stand if appealed to and reversed by the Federal Circuit.

By contrast, when mandate issues at the expiration of the appeal period, the decision of the Court

is final and unappealable. As such, it is likely that the parties (and even nonparties) have conformed

their conduct or acted based on the holding announced in the decision. Thus, it is reasonable that

the Court should hold the parties to the higher standard when recall of mandate is sought and to the

lower, "good cause," standard when the parties seek recall of judgment.

Although the parties in this case have a lower burden of persuasion, they must nevertheless

show good cause before the Court will exercise its discretion and recall judgment. "Good cause" is

defined generally as a "legally sufficient reason" for an action and is "often the burden placed on a

litigant (usu[ally] by court rule or order) to show why a request should be granted or an action

excused." BLACK'S LAW DICTIONARY 251 (9th ed. 2009).

"'[G]ood cause' depends upon circumstances of individual case, and finding of its

existence lies largely in discretion of . . . court to which decision is committed. It is

a relative and highly abstract term, and its meaning must be determined not only by

verbal context of statute in which term is employed but also by context of action and

procedures involved in type of case presented."

Thomas v. Derwinski, 1 Vet. App. 289, 290-91 (1991) (quoting BLACK'S LAW DICTIONARY 692 (6th

ed. 1990)). The Court in Thomas observed, in the context of interpreting the Court's rules on

representation before the Court, that "[i]n interpreting the term 'good cause' . . . it is clear that this

Court has wide discretion, and that in exercising such discretion, both the context of the language

of the rule and the specific situation presented are highly relevant." Id. at 291; DeGuzman v.

Nicholson, 20 Vet.App. 526, 535 (2006). In this case, as in Thomas, context dictates whether the

parties have satisfied their burden of demonstrating good cause.

B. Application of the "Good Cause" Standard

To demonstrate good cause for the Court to recall its judgment, the parties here must show

that the present case was contemplated by VA's plan and supplemental response, submitted to and

approved by the Federal Circuit in conjunction with the NOVA litigation. Looking to those

documents for guidance, the Court discerns that they indicate an intent to identify and offer remedial

relief to litigants who were clearly adversely affected by the Board's application of the invalid 2011

Rule or, at the very least, those who were possibly adversely affected where it is unclear which rule

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the Board applied. See, e.g., Respondent's June 27, 2013, Submission at 3 (specifying that the

Secretary would seek remand "[i]n any case in which the Board applied the 2011 Rule against a

claimant. . . .").

The parties have failed to demonstrate good cause for recalling the Court's judgment in this

case because 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. Thus, the Court holds 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.

The Court cannot accept the parties' implicitly suggested course of action that it, pro forma,

vacate its judgment and remand any and all cases identified by a computer search that is based on

the use of broad search terms used by VA to locate those cases that are potentially affected by the

Federal Circuit's order. First, the parties' reliance solely on the search terms to identify candidate

cases for recall of judgment (or mandate) ignores the important predicate–laid out by VA in its May

20, 2013, plan–that the Board must have actually applied the invalid 2011 Rule. See, e.g.,

Respondent's May 20, 2013, Response to Show Cause Order at 4 (offering to submit a joint motion

for remand for cases before this Court "so that the Board may correct any application of the 2011

rule"); Respondent's May 20, 2013, Proposed Plan at 1 (specifying that the plan is "[t]o remedy any

harm from application of the 2011 Rule").

Second, the search terms potentially identify all, or nearly all, cases in which the veteran

elected to testify before the Board, including Board decisions that applied the correct, valid law.

Although applying broad search terms may have been helpful, and perhaps required, in VA's quest

to identify all potentially affected cases, reliance on those very broad search terms alone is only the

first step and cannot be used as a substitute for legal analysis as to whether good cause exists, under

the circumstances of each particular case, to recall the Court's judgment. The parties, by relying

solely on these search terms, and not on supportable legal analysis and argument, have failed to

present the Court with any articulable reason to exercise its discretion to recall its judgment here.

By referring to the Court those cases that meet the general search terms, the parties seek to shift the

responsibility to the Court to make the more detailed analysis required to determine whether a case

so identified meets the more restrictive terms of the Federal Circuit's order.

Although the parties present virtually no argument as to why the Court should exercise its

discretion, several reasons exist for the Court not to exercise its discretion. To vacate judgment and

remand in this case and others where the Board applied the correct rule will waste judicial resources

necessary in remanding finally, and correctly, decided cases. It will also unnecessarily expend

agency resources in re-adjudicating identically the issue concerning the appellant's hearing. We will

not return a case to the Board where no error has been established and where the only result will be

for the Board to do what it has already done. See Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991)

(holding that remand is unnecessary where it would impose additional burdens on the Board with

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no benefits flowing to the veteran).

We hold that this Court has no obligation to recall its judgment based on a joint motion to

do so that presents no good cause for the Court to so exercise its discretion. The Court recognizes

that the Federal Circuit has accepted the Secretary's assurance that he would seek remand of a broad

class of cases to ensure that no appellant was harmed by the Secretary's failure to promptly and

completely implement the remedy devised in the NOVA litigation. And, today the Court does not

circumvent the plan established by VA in litigation before the Federal Circuit. Rather, the Court

clarifies that where there is no error in the Board analysis of hearing rights and no reasonable

possibility that such harm occurred, the Court is confident that the Federal Circuit would not intend

for this Court to implement a completely hollow and therefore wasteful remedy.

C. Procedure

Judgment entered in this case on August 1, 2013. On September 13, 2013, 43 days after

judgment entered, the parties filed their joint motion to recall judgment. Accordingly, 17 days

remained before mandate was due to enter. When the parties filed their joint motion for recall of

judgment, they neglected to file a concurrent motion to stay proceedings. See U.S. VET . APP .

R. 27(f) (stating that "[f]iling a motion does not suspend proceedings or otherwise alter the schedule

for filing documents unless the Court grants the motion"). However, in the interest of fairness and

judicial efficiency, the Court will sua sponte stay its proceedings in this case nunc pro tunc to the

date of the parties' joint motion to recall judgment. See U.S. VET . APP . R. 5(a). Accordingly, at the

issuance of the present order, the Court's sua sponte stay will be lifted, the preexisting schedule will

resume, and mandate will enter 17 days after the date of this order. See U.S. VET . APP . R. 5(b); U.S.

VET . APP . R. 41(b)(3) (Mandate generally enters 60 days after the entry of judgment unless the Court

directs otherwise).

Upon consideration of the foregoing, it is

ORDERED that the Court's sua sponte stay of proceedings nunc pro tunc to the date of the

parties' motion to recall judgment is lifted. It is further

ORDERED that the parties' joint motion to recall judgment is DENIED. It is further

ORDERED that the parties' motion for leave to file out of time a joint motion for remand is

DENIED. It is further

ORDERED that the Court will direct the Clerk to enter mandate in this case 17 days after the

date of this order.

DATED: January 13, 2014 PER CURIAM.

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