Amicus Curiae Brief — Joe A. Lynch, Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs

No. 21-1453

IN THE

Supreme Court of the United States

___________________________

JOE A. LYNCH,

v.

Petitioner,

DENIS R. MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS,

Respondent.

___________________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

___________________________

BRIEF OF MILITARY-VETERANS ADVOCACY

INC. AS AMICUS CURIAE IN SUPPORT

OF PETITIONER

___________________________

John B. Wells

MILITARY-VETERANS

ADVOCACY, INC.

P.O. Box 5235

Slidell, LA 70469-5235

(985) 641-1855

JohnLawEsq@msn.com

Melanie L. Bostwick

Counsel of Record

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street, NW

Washington, DC 20005

(202) 339-8400

mbostwick@orrick.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... ii

INTEREST OF AMICUS CURIAE ............................1

INTRODUCTION AND SUMMARY OF

ARGUMENT .........................................................2

ARGUMENT ...............................................................4

I.

The Federal Circuit’s Interpretation of

§ 5107(b) Contradicts the Statutory Text

and Defies Congress’s Intent. ..............................4

A. The Ortiz/Lynch Rule Reinstates the

Flawed Preponderance of the Evidence

Standard. .........................................................5

B. The Ortiz/Lynch Rule Employs

Adversarial Concepts in a NonAdversarial System. ........................................8

C. The Ortiz/Lynch Rule Allows VA to

Evade Its Statutory Obligation—and

Appellate Review...........................................10

II. The Question Presented Is Important and

Recurring. ...........................................................11

CONCLUSION ..........................................................14

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Addington v. Texas,

441 U.S. 418 (1979) .................................. 10, 12, 13

Allentown Mack Sales & Serv., Inc. v. NLRB,

522 U.S. 359 (1998) ..............................................11

Bowden v. McDonough,

No. 21-2992, 2022 WL 1222989 (Vet.

App. Apr. 26, 2022) ................................................6

Gilbert v. Derwinski,

1 Vet. App. 49 (1990) ............................... 2, 4, 5, 13

Goldman Sachs Grp., Inc. v. Ark. Tchr.

Ret. Sys.,

141 S. Ct. 1951 (2021)............................................7

Herman & MacLean v. Huddleston,

459 U.S. 375 (1983) ..........................................8, 13

Hicks v. McDonough,

No. 20-8264, 2022 WL 1223015 (Vet.

App. Apr. 26, 2022) ................................................7

Lego v. Twomey,

404 U.S. 477 (1972) ..............................................14

Medina v. California,

505 U.S. 437 (1992) ................................................7

iii

Ortiz v. Principi,

274 F.3d 1361 (Fed. Cir. 2001) ..............................3

Procopio v. Wilkie,

913 F.3d 1371 (Fed. Cir. 2019) ............................13

Sansbury v. McDonough,

No. 20-8639, 2022 WL 1078537 (Vet.

App. Apr. 11, 2022) ................................................6

Santosky v. Kramer,

455 U.S. 745 (1982) ..............................................12

Shinseki v. Sanders,

556 U.S. 396 (2009) ......................................5, 9, 13

Stevenson v. McDonough,

No. 20-6985, 2022 WL 1202742 (Vet.

App. Apr. 22, 2022) ................................................6

Turner v. McDonough,

No. 21-0914, 2022 WL 1014149 (Vet.

App. Apr. 5, 2022) ..................................................6

Walters v. Nat’l Ass’n of Radiation Survivors,

473 U.S. 305 (1985) ................................................9

Watkins v. McDonough,

No. 20-5640, 2022 WL 593627 (Vet.

App. Feb. 28, 2022) ................................................6

In re Winship,

397 U.S. 358 (1970) ..............................................13

iv

Statutes

38 U.S.C. § 5103(a)......................................................9

38 U.S.C. § 5103A .......................................................9

38 U.S.C. § 5107(b)...... 1, 2, 3, 4, 5, 6, 8, 10, 11, 12, 13

38 U.S.C. § 5904(c)(1) ..................................................9

38 U.S.C. § 7261(b)(1) ...............................................10

Rules and Regulations

38 C.F.R. § 2.1075 (1938) ............................................2

38 C.F.R. § 3.103(a) .....................................................9

Other Authorities

U.S. Dep’t of Veterans Affairs, Board of

Veterans’ Appeals, Annual Report –

Fiscal Year (FY) 2021,

https://tinyurl.com/mr37rknt ................................9

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INTEREST OF AMICUS CURIAE 1

Military-Veterans Advocacy Inc. (MVA) is a nonprofit organization that litigates and advocates on behalf of service members and veterans. Established in

2012 in Slidell, Louisiana, MVA educates and trains

service members and veterans concerning rights and

benefits, represents veterans contesting the improper

denial of benefits, and advocates for legislation to protect and expand service members’ and veterans’

rights and benefits. It also provides continuing legal

education to attorneys practicing in the field of veterans’ and service members’ rights and benefits.

This case involves a question that has the potential to affect every individual seeking veterans’ benefits from the Department of Veterans Affairs: the

proper application of the benefit-of-the-doubt rule,

which privileges the claimant when the evidence on

any material issue is in “approximate balance.” 38

U.S.C. § 5107(b). That principle recognizes the difficulty that veterans face in proving matters that can

be fraught with both historical and medical uncertainty. It embodies the non-adversarial, pro-claimant

nature of the veterans’ benefits system. And it reflects

a societal judgment that it is better to err on the side

of providing benefits to those who sacrificed their own

interests on behalf of the nation. Under the Federal

1 The parties have consented to the filing of this amicus

brief. No counsel for a party authored the brief in whole or in

part. No party, counsel for a party, or any person other than

amici and their counsel made a monetary contribution intended

to fund the preparation or submission of the brief.

2

Circuit’s interpretation of § 5107(b), however, that societal judgment is not being given meaningful effect.

MVA has an interest in seeing that the statute is interpreted and applied consistent with its text, with

the intent of Congress, and with the pro-veteran purpose behind it.

INTRODUCTION AND SUMMARY OF

ARGUMENT

When the evidence on any issue material to a veteran’s claim for benefits is mixed, “[b]y tradition and

by statute, the benefit of the doubt belongs to the veteran.” Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

This principle dates to the post-Civil War era. Id. at

55. It has been codified in VA’s regulations since before World War II. See, e.g., 38 C.F.R. § 2.1075 (1938)

(citing “general policy of resolving all reasonable

doubts in favor of the claimant”). And, since 1988, it

has been embodied in the statutes governing VA’s adjudication of claims. The current statute provides:

“When there is an approximate balance of positive

and negative evidence regarding any issue material

to the determination of a matter, the Secretary shall

give the benefit of the doubt to the claimant.” 38

U.S.C. § 5107(b).

Petitioner Joe Lynch, like countless veterans before him, provided VA with evidence supporting his

claim to benefits—in this case, an increased rating for

his disabling post-traumatic stress incurred as a result of his service in the United States Marine Corps.

But Mr. Lynch wasn’t given the benefit of the doubt.

For more than twenty years, the Federal Circuit has

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afforded veteran claimants less than the full benefit

assured to them by the statute.

VA and the Veterans Court applied the precedent

set by Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir.

2001), denying Mr. Lynch the benefit of § 5107(b) by

finding a preponderance of evidence against his claim.

Pet. App. 45a, 56a-57a. A divided panel of the Federal

Circuit affirmed this holding. Judge Dyk “dissent[ed]

from the majority’s conclusion that the preponderance

standard is consistent with the statute.” Pet. App.

33a. As he recognized, that standard “restricts the

benefit-of-the-doubt rule to cases in which there is

close to an evidentiary tie”—a higher bar than the

“approximate balance” provided for in the statute.

Pet. App. 33a.

The en banc Federal Circuit granted review on

this question, but it failed to fix the problem. The en

banc majority stated that it was “depart[ing] from

Ortiz’s ‘preponderance of the evidence’ language.” Pet.

App. 11a. But it simultaneously reinstated the substance of the preponderance standard, permitting VA

to deny the benefit of the doubt if the factfinder deems

the evidence persuasive. The only standard of persuasion the majority endorsed was the very same one announced in Ortiz—persuasion by a preponderance of

the evidence. Pet. App. 11a. Indeed, the majority took

pains to emphasize that Ortiz “w[as] not wrongly decided” and that VA in this case had not erred by applying the preponderance standard. Pet. App. 12a.

Judge Reyna, joined by two other judges, dissented from this aspect of the en banc ruling. Pet.

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App. 14a. As he recognized, the majority’s “‘persuasive evidence’ standard” was simply Ortiz by another

name. Pet. App. 14a. As Judge Reyna also recognized,

“[t]he words of the statute are no mystery.” Pet. App.

16a. Section 5107(b) does not impose a “preponderance” standard, a “persuasive” standard, or any other

magic words that VA adjudicators can recite to absolve themselves of faithfully applying the benefit-ofthe-doubt rule. But that is exactly what the Federal

Circuit’s contra-statutory test allows.

In the wake of Lynch, VA and the Veterans Court

are doing exactly what they did under Ortiz: denying

veterans the benefit of the doubt in mixed-evidence

cases based on nothing more than a bare recitation

that a preponderance of evidence is against the veteran. That practice is at odds with the statute, at odds

with the intended non-adversarial nature of the veterans’ benefits system, and at odds with the

longstanding principle that those who “have borne the

battle” on our nation’s behalf deserve the benefit of

the doubt from their government. This Court’s intervention is necessary.

ARGUMENT

I.

The Federal Circuit’s Interpretation of

§ 5107(b) Contradicts the Statutory Text and

Defies Congress’s Intent.

Consistent with the uniquely non-adversarial

character of the veterans’ benefits system, § 5107(b)

is meant to provide “[a] unique standard of proof,” unlike the standards that apply in criminal and civil litigation. Gilbert, 1 Vet. App. at 53-54. The evidentiary

5

threshold contemplated by the “approximate balance”

language is “at the farthest end of the spectrum, beyond even the ‘fair preponderance’ standard.” Id. at

54. Through this unique statutory standard, Congress

has “place[d] a thumb on the scale in the veteran’s favor.” Shinseki v. Sanders, 556 U.S. 396, 416 (2009)

(Souter, J., dissenting).

The Federal Circuit’s Ortiz/Lynch rule takes the

thumb off the scale and replaces it with a feather. By

allowing VA factfinders to deny the benefit of the

doubt if the persuasive effect of the evidence against

the veteran tips the scales only ever so slightly, the

Ortiz/Lynch rule denies veterans the benefit of the

doubt in cases where the evidence is nonetheless “approximately balanced.” It improperly imports a standard developed for the adversarial context of civil

litigation into what is meant to be a non-adversarial

system—and one in which most claimants are unrepresented by legal counsel. And, as Judge Reyna’s dissent recognized, it allows VA to evade appellate

review of its application of § 5107(b) by simply concluding in every close case that the agency is “persuaded” to deny the claim.

A. The Ortiz/Lynch Rule Reinstates the

Flawed Preponderance of the Evidence

Standard.

While purporting to fix any “confusion” created by

Ortiz, the Lynch en banc majority in fact perpetuated

it. Pet. App. 11a. The majority’s interpretation of

§ 5107(b) denies the veteran the benefit of the doubt

on an issue if the factfinder is “persuaded by the evidence to make a particular finding.” Pet. App. 11a.

6

But that formulation fails to answer the critical question—what standard must the factfinder apply to

judge whether he or she has been sufficiently persuaded? The only one apparently embraced by the

Lynch majority is the same one adopted long ago in

Ortiz: the factfinder is persuaded if a preponderance

of the evidence is against the veteran.

That is certainly how the Secretary has interpreted Lynch. He has taken the position before the

Veterans Court that, under Lynch, when “the Board

determine[s] … that the preponderant evidence

weigh[s] against the claim, it necessarily has determined that the evidence is not nearly equal and the

benefit of the doubt rule has no application.”

Sansbury v. McDonough, No. 20-8639, 2022 WL

1078537, at *10 (Vet. App. Apr. 11, 2022) (quoting

Secretary’s brief). And the Veterans Court has accepted this interpretation of Lynch. In Sansbury and

many other cases, it has approved of the Board’s decision to deny the benefit-of-the-doubt rule based on a

mere finding that the preponderance of the evidence

is against the veteran’s claim. Id. at *12; see also, e.g.,

Bowden v. McDonough, No. 21-2992, 2022 WL

1222989, at *4-5 (Vet. App. Apr. 26, 2022) (affirming

based on Board’s finding of a preponderance of evidence against the claim); Stevenson v. McDonough,

No. 20-6985, 2022 WL 1202742, at *4 (Vet. App. Apr.

22, 2022) (rejecting § 5107(b) argument because “the

Board specifically found that the preponderance of

the evidence was against the claim”); Turner v.

McDonough, No. 21-0914, 2022 WL 1014149, at *5

(Vet. App. Apr. 5, 2022) (affirming based on Board’s

finding of a preponderance of evidence against the

claim); Watkins v. McDonough, No. 20-5640, 2022 WL

7

593627, at *4 (Vet. App. Feb. 28, 2022) (Board

properly denied benefit of the doubt where it “found

that the preponderance of the evidence was against a

finding” for the veteran). 2

This is not an unfair reading of Lynch. Indeed, the

Lynch majority expressly approved of Ortiz’s preponderance formulation. Pet. App. 11a (equating preponderance with persuasion). And its only expressed

concern about that formulation was that it might be

misunderstood to equate a preponderance standard

with “the concept of equipoise.” Pet. App. 11a. As Petitioner correctly notes (at 18 n.13), “[t]his purported

confusion is of the majority’s own making.” The preponderance standard is not an equipoise standard. On

the contrary, when the evidence is in equipoise—that

is, when it is evenly balanced—then a party bearing

the burden of proof has failed to show a preponderance of evidence in his favor. That is why this Court

has repeatedly explained that the allocation of a preponderance burden on one party or the other has effect “only when the court finds the evidence in

equipoise—a situation that should rarely arise.”

Goldman Sachs Grp., Inc. v. Ark. Tchr. Ret. Sys., 141

S. Ct. 1951, 1963 (2021); accord Medina v. California,

505 U.S. 437, 449 (1992). Anything beyond a perfect

balance—even so much as a “peppercorn” of evidence—will suffice to constitute a preponderance of

2 Even more troubling, as Petitioner notes (at 5 n.6), VA’s

internal adjudication manual retains the “equipoise” standard

that the Lynch majority plainly rejected. So, too, have some Veterans Court decisions. See, e.g., Hicks v. McDonough, No. 208264, 2022 WL 1223015, at *4 (Vet. App. Apr. 26, 2022).

8

the evidence. Pet. App. 33a; see, e.g., Herman & MacLean v. Huddleston, 459 U.S. 375, 390 (1983) (preponderance standard requires proof only that something

is “more likely than not”).

And therein lies the problem with the Ortiz/Lynch

rule. A peppercorn does not tip the scale so far as to

take it out of “approximate balance” for purposes of

§ 5107(b). Had Congress wanted to impose a preponderance standard on VA to defeat a veteran’s claim, it

certainly could have done so. Instead, Congress chose

the words “approximate balance.” By allowing a mere

preponderance of evidence to defeat the benefit-ofthe-doubt rule, the Ortiz/Lynch rule deprives Congress’s statute of virtually any pro-veteran effect. If

there is just enough evidence on an issue to tip the

scales ever so slightly against the veteran the benefitof-the-doubt rule will not apply, and the issue will be

decided against the veteran. The only “doubt” that can

be resolved in favor of the veteran is uncertainty

about which way to tip an evenly balanced scale. That

is not what Congress intended, and it is not what the

Federal Circuit en banc majority claimed to want. See

Pet. App. 11a. But it is the regime mandated by the

Ortiz/Lynch rule.

B. The

Ortiz/Lynch

Rule

Adversarial Concepts in

Adversarial System.

Employs

a Non-

Not only does the Ortiz/Lynch rule fail to give effect to Congress’s words. It fails to recognize the

unique nature of the veterans’ benefits system as a

whole. As this Court has explained, “the process prescribed by Congress for obtaining disability benefits

9

does not contemplate the adversary mode of dispute

resolution utilized by courts in this country.” Walters

v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305,

309 (1985); see also Sanders, 556 U.S. at 412 (VA “adjudicatory process is not truly adversarial”). It is

wholly unlike civil litigation—even civil litigation involving the government. There are no statutes of limitations, no formal res judicata effects, no rules of

evidence. See Walters, 473 U.S. at 309-10. And claimants are forbidden from paying a lawyer to help them

at the original claim stage. 38 U.S.C. § 5904(c)(1).

Even at the Board level, less than one quarter of

claimants are represented by legal counsel. See U.S.

Dep’t of Veterans Affairs, Board of Veterans’ Appeals,

Annual Report – Fiscal Year (FY) 2021 at 39,

https://tinyurl.com/mr37rknt.

Simply put, this system is not intended to function like a court. It is intended “to function throughout

with a high degree of informality and solicitude for

the claimant.” Walters, 473 U.S. at 311. And agency

adjudicators are not intended to function as a judge or

jury. They are not merely neutral arbiters of evidence

but are commanded by statute to assist the claimant

in obtaining and developing evidence to support the

claim. 38 U.S.C. §§ 5103(a), 5103A. And they are obligated by regulation to “render a decision which

grants every benefit that can be supported in law.” 38

C.F.R. § 3.103(a).

A standard of proof developed in the context of litigation—where parties are truly adversaries, where

rules of discovery and evidence constrain the record,

and where the factfinders are emphatically not obligated to favor either side—makes no sense in this

10

non-adversarial context. It is particularly incongruous to employ a standard that requires opposing parties to “share the risk of error in roughly equal

fashion.” Addington v. Texas, 441 U.S. 418, 423

(1979); see infra Part II. The veteran is not supposed

to share any “risk” with the government. He is supposed to receive “the benefit of the doubt.” 38 U.S.C.

§ 5107(b).

C. The Ortiz/Lynch Rule Allows VA to

Evade Its Statutory Obligation—and

Appellate Review.

The Ortiz/Lynch rule is also problematic because

it allows VA to essentially ignore § 5107(b)—and to do

so in a way that prevents effective appellate review of

whether the agency is abiding by the statute. Judge

Reyna identified the problem: “if the VA internally

recognizes the evidence is close but finds in the end

that the evidence ‘persuasively’ precludes the veteran’s claim, the VA does not need to disclose that the

evidence may have been ‘close.’” Pet. App. 15a. VA can

simply state that it is persuaded—or that a preponderance of evidence is against the claim. There is, under current Federal Circuit precedent, no

requirement that the agency recite what evidence is

on each side of the proverbial scale.

The Veterans Court is obligated by statute to

“take due account of the Secretary’s application of section 5107(b) of this title.” 38 U.S.C. § 7261(b)(1). But

the Veterans Court (and other reviewing courts) will

have difficulty fulfilling that obligation. Pet. App. 15a.

Indeed, as the examples above (at 6-7) demonstrate,

the Veterans Court is frequently presented with a

11

Board decision that does no more than summarize the

evidence and conclude that a “preponderance” is

against the veteran. The Veterans Court has no way

of discerning whether the evidence might in fact have

been in “approximate balance” before the agency resolved the dispute against the veteran—and thus no

way of judging whether the agency faithfully adhered

to § 5107(b). “If revision of the [applicable] standard

of proof can be achieved thus subtly and obliquely, it

becomes a much more complicated enterprise for a

court of appeals to determine whether … the required

standard has or has not been met.” Allentown Mack

Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 376 (1998).

The pragmatic implications of the Ortiz/Lynch rule

provide further reason for this Court to grant certiorari.

II. The Question Presented Is Important and

Recurring.

If the Federal Circuit’s ruling stands, veterans

will be denied their rights under the law. That alone

is sufficient reason for this Court to grant review. But

certiorari is especially warranted given the significant negative impact of the Ortiz/Lynch doctrine.

That impact is quantitative. The benefit of the

doubt rule applies to every “issue material to the determination of a matter” in a claim for benefits. 38

U.S.C. § 5107(b). The interpretation of that rule thus

has the potential to affect the resolution of every single claim for veterans’ benefits. The numbers bear out

that sweeping impact. A Westlaw search of rulings by

the Board of Veterans’ Appeals—which does not report its decisions by name—reveals more than 20,000

12

cases citing Ortiz in the two decades that it was the

leading precedent on § 5107(b). Now, in just the six

months since the Federal Circuit’s ruling, the Board

has cited the en banc Lynch opinion more than 900

times.

Each of these thousands of cases represents a veteran (or his widow, or his child) who might have received a different outcome if VA had been abiding by

the law that Congress wrote. And each of those individuals deserved a proper consideration of the evidentiary record and whether the scales truly tipped in

favor of denying the claim—or whether, as the Federal Circuit’s case law allows, the advantage to the

government was no more than “a mere peppercorn.”

Pet. App. 33a. It is impossible to say how many of

these claimants would have received the benefit of the

doubt under a proper legal standard. But it is possible

to correct that standard now and ensure that future

claimants’ rights are vindicated.

It is also critical to do so. As this Court has explained, a standard of proof is essentially a judgment

about which party should bear the risk of a factfinder

getting things wrong in a case with mixed evidence.

“The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.”

Addington, 441 U.S. at 423; see also Santosky v. Kramer, 455 U.S. 745, 755 (1982) (selection of standard of

proof is a “societal judgment about how the risk of error should be distributed between the litigants”).

13

The preponderance standard that the Federal

Circuit has endorsed—by name in Ortiz and by substance in Lynch—is employed when society has a

“minimal concern” in the outcome of the dispute. Addington, 441 U.S. at 423. It does not “express[] a preference for one side’s interests.” Herman & MacLean,

459 U.S. at 390. Rather, it is used when “we view it as

no more serious in general for there to be an erroneous verdict in [one side’s] favor than for there to be an

erroneous verdict in [the other side’s] favor.” In re

Winship, 397 U.S. 358, 371 (1970) (Harlan, J., concurring).

Enshrining this indifference into veterans law is

contrary to the text of § 5107(b), which expressly codifies a preference for the veteran to prevail when evidence on an issue is close. As the Veterans Court once

recognized, the intent of the statute is “that society

has through legislation taken upon itself the risk of error” in veterans-benefits determinations. Gilbert, 1

Vet. App. at 54 (emphasis added). A statutory interpretation that shirks the obligation society has assumed is also contrary to the “special solicitude” that

Congress (and our country) has for veterans. Sanders,

556 U.S. at 412 (“A veteran, after all, has performed

an especially important service for the Nation, often

at the risk of his or her own life.”). Veterans’ benefits

statutes should be read and applied with an “equitable obligation” in mind, based on the judgment “that

those who served their country are entitled to special

benefits from a grateful nation.” Procopio v. Wilkie,

913 F.3d 1371, 1386-87 (Fed. Cir. 2019) (en banc)

(O’Malley, J., concurring).

14

In short, our society—and our law—cares a great

deal about whether the veteran or the government

bears the risk of error. The Ortiz/Lynch rule, in allowing VA to prove a proposition by only a bare majority

of persuasive effect, subverts that preference. The

rule ensures that there will be a significant number

of veteran losses that do not reflect the truth. See, e.g.,

Lego v. Twomey, 404 U.S. 477, 493 (1972) (Brennan,

J., dissenting) (allowing preponderance standard for

judging admissibility of confessions “will necessarily

result in the admission of more involuntary confessions than would be admitted were the prosecution

required to meet a higher standard”). This Court

should overturn the Ortiz/Lynch rule.

CONCLUSION

For the foregoing reasons and those stated in the

Petition, the Court should grant certiorari.

Respectfully submitted,

John B. Wells

MILITARY-VETERANS

ADVOCACY, INC.

P.O. Box 5235

Slidell, LA 70469-5235

(985) 641-1855

JohnLawEsq@msn.com

June 16, 2022

Melanie L. Bostwick

Counsel of Record

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street, NW

Washington, DC 20005

(202) 339-8400

mbostwick@orrick.com