Byron v. Dept. Of Veterans Affairs

United States Court of Appeals

for the Federal Circuit

__________________________

LADY LOUISE BYRON,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, SECRETARY OF VETERANS

AFFAIRS,

Respondent-Appellee.

__________________________

2011-7170

__________________________

Appeal from the United States Court of Appeals for

Veterans Claims in case no. 09-4634, Judge Mary J.

Schoelen.

___________________________

Decided: February 17, 2012

___________________________

EDWARD R. REINES, Weil, Gotshal & Manges, LLP, of

Redwood Shores, California, argued for claimant-

appellant. With him on the brief was JUSTIN M. LEE. Of

counsel on the brief were JEFFREY G. HOMRIG and

LAWRENCE OKEY ONYEJEKWE, JR., Kasowitz, Benson,

Torres & Friedman LLP, of San Francisco, California.

TARA K. HOGAN, Trial Attorney, Commercial Litiga-

tion Branch, Civil Division, United States Department of

Justice, of Washington, DC, argued for respondent-

BYRON v. DVA 2

appellee. With her on the brief were TONY WEST, Assis-

tant Attorney General, JEANNE E. DAVIDSON, Director,

and TODD M. HUGHES, Deputy Director. Of counsel on the

brief were MICHAEL J. TIMINSKI, Deputy Assistant Gen-

eral Counsel, DAVID J. BARRANS, Deputy Assistant Gen-

eral Counsel, and BRIAN D. GRIFFIN, Attorney, United

States Department of Veterans Affairs, of Washington,

DC.

__________________________

Before NEWMAN, BRYSON, and MOORE, Circuit Judges.

MOORE, Circuit Judge.

Ms. Lady Louise Byron appeals from a decision by the

Court of Appeals for Veterans Claims (Veterans Court)

remanding the case for further proceedings before the

Board of Veterans’ Appeals (Board). Byron v. Shinseki,

No. 09-4634, slip op., 2011 WL 2441683 (Ct. Vet. App.

June 20, 2011). Because the Veterans Court properly

remanded to the Board to make factual determinations in

the first instance, we affirm.

BACKGROUND

This case arises from the Board’s decision denying an

earlier effective date of service connection for the cause of

the death of Ms. Byron’s husband, a veteran. Ms. Byron

alleged that her husband developed cancer due to expo-

sure to radiation while he was serving on active duty.

Based on regulations that presume causation for certain

diseases, the Board awarded service connection with an

effective date of May 1, 1988. The Board did not deter-

mine whether Ms. Byron established a direct service

connection that was not based on the presumptions. On

appeal to the Veterans Court, the parties agreed that the

Board should have made such a determination because it

may entitle Ms. Byron to an earlier effective date. Ms.

3 BYRON v. DVA

Byron sought for the Veterans Court to reverse the

Board’s decision rather than vacate and remand it.

Because the Board did not consider the evidence or make

factual findings concerning direct service connection, the

Veterans Court remanded the case to the Board to make

such findings in the first instance. Byron, slip. op. at 8-9.

Ms. Byron now appeals the decision to remand.

DISCUSSION

Remand orders of the Veterans Court are normally

not reviewable, Adams v. Principi, 256 F.3d 1318, 1320

(Fed. Cir. 2001), but we have recognized exceptions to

that rule. In Adams, a case very similar to this one, we

held that a remand order was appealable because the

issue pressed by the appellant was that he had a legal

right not to be required to undergo a remand. In light of

that decision and our subsequent decision in Williams v.

Principi, 275 F.3d 1361, 1364 (Fed. Cir. 2002), in which

we set forth a three-part test to identify the class of cases

in which remand orders are directly appealable, we hold

that it is appropriate to review the remand order in this

case. This case satisfies that three-part test because the

Veterans Court’s decision was a clear and final decision of

the legal issue presented by Ms. Byron; the resolution of

that issue against Ms. Byron will be adverse to her by

forcing her to submit to a remand; and the remand will

effectively moot Ms. Byron’s claim that she has a legal

right to a decision of her claim without the need for a

remand. Following Adams and Williams, we have deline-

ated the circumstances where review of a remand order is

proper. See, e.g., Joyce v. Nicholson, 443 F.3d 845, 850

(Fed. Cir. 2006) (holding that we may not review a re-

mand order when the appellant is challenging the cor-

rectness of the analysis in the remand order); Myore v.

Principi, 323 F.3d 1347, 1351-52 (Fed. Cir. 2003) (same);

Stevens v. Principi, 289 F.3d 814, 817 (Fed. Cir. 2002)

BYRON v. DVA 4

(holding that we may review a remand order to determine

the Veterans Court’s authority to order a remand). This

case involves the same type of issue present in Adams and

Stevens, whether the Veterans Court has the authority to

reverse the Board rather than remand the case. Unlike

the issues in Joyce and Myore, the issue of whether the

Veterans Court has authority to reverse would become

moot once the case is remanded. Thus, this is one of the

rare circumstances where review of a remand order is

proper.

The scope of our review of a Veterans Court decision

is limited by statute. See 38 U.S.C. § 7292 (2006). Absent

a constitutional issue, we may not review challenges to

factual determinations or challenges to the application of

a law or regulation to facts. 38 U.S.C. § 7292(d)(2). We

review questions of law, including the interpretation of

statutes and regulations, de novo. DeLaRosa v. Peake,

515 F.3d 1319, 1321 (Fed. Cir. 2008).

The parties agree that the Board erred by not analyz-

ing whether Ms. Byron established a direct service con-

nection. The parties disagree, however, whether the

Veterans Court must remand, or whether it may assess

the facts in the first instance. We resolved this issue in

Hensley v. West, where we held that when the Board

misinterprets the law and fails to make the relevant

initial factual findings, “the proper course for the Court of

Appeals for Veterans Claims [is] to remand the case to the

[Board] for further development and application of the

correct law.” 212 F.3d 1255, 1264 (Fed. Cir. 2000). We

explained that the statutory provisions governing the

Veterans Court “are consistent with the general rule that

appellate tribunals are not appropriate fora for initial fact

finding.” Id. at 1263; see also 38 U.S.C. § 7261(c) (2006)

(“In no event shall findings of fact made by the Secretary

5 BYRON v. DVA

or the Board of Veterans’ Appeals be subject to trial de

novo by the [Veterans Court].”).

To the extent that Ms. Byron argues that Gonzales v.

Thomas, 547 U.S. 183 (2006) (per curiam) and INS v.

Ventura, 537 U.S. 12 (2002) (per curiam) provide other-

wise, we disagree. The Supreme Court held that when an

agency has not made an initial determination, “the proper

course, except in rare circumstances, is to remand to the

agency for additional investigation or explanation.”

Thomas, 547 U.S. at 186 (quoting Ventura, 537 U.S. at

16). In Ventura, the Supreme Court explained:

Generally speaking, a court of appeals should re-

mand a case to an agency for decision of a matter

that statutes place primarily in agency hands. . . .

The agency can bring its expertise to bear upon

the matter; it can evaluate the evidence; it can

make an initial determination; and, in doing so, it

can, through informed discussion and analysis,

help a court later determine whether its decision

exceeds the leeway that the law provides.

537 U.S. at 16-17. It is not enough that only a few factual

findings remain or that the applicant may have a strong

case on the merits. None of the rare circumstances found

in the cases cited by Ms. Byron from other circuits is

present in the current case. For example, this case does

not “involve[] a legal question, as opposed to the factual

questions that were at issue in Ventura and Thomas.” See

Calle v. U.S. Attorney Gen., 504 F.3d 1324, 1330 (11th Cir.

2007). This is also not a case where the agency analyzed

the issue in the first instance. See Sierra Club v. U.S.

Envtl. Prot. Agency, 346 F.3d 955, 962-63 (9th Cir. 2003).

Nor is this a case where the relevant facts were admitted.

See Hussain v. Gonzales, 477 F.3d 153, 156-57 (4th Cir.

2007). The government even acknowledged at oral argu-

BYRON v. DVA 6

ment that had they conceded the relevant facts, it would

have been proper for the Veterans Court to reverse rather

than remand. Oral Argument at 24:45-26:00, Byron v.

DVA, No. 2011-7170, available at

http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20

11-7170.mp3. Finally, this is not a case where the Veter-

ans Court is finding facts related solely to the issue of

harmless error, which according to the statute, it may do

in the first instance. Newhouse v. Nicholson, 497 F.3d

1298, 1301-02 (Fed. Cir. 2007). When there are facts that

remain to be found in the first instance, a remand is the

proper course.

In this case, the government argues that at least two

unresolved factual issues must be addressed before Ms.

Byron may be awarded an earlier effective date based on

a direct service connection. In particular, Ms. Byron must

first show that her husband was exposed to radiation

during service. See 38 C.F.R. § 3.303. Ms. Byron must

also show that her husband’s death was caused by such

exposure. See id. It is not enough for Ms. Byron to claim

that all of the evidence of record supports her position.

The Board must still make an initial determination of

whether Ms. Byron has sufficiently supported a claim for

an earlier effective date. See Thomas, 547 U.S. at 186. It

may well be that the Board concludes that Ms. Byron has

established these facts. That, however, is precisely what

needs to be done by the fact-finding agency in the first

instance, not by a court of appeals.

For the foregoing reasons, we affirm the Veterans

Court’s decision remanding the case to the Board.

AFFIRMED