Petition for Writ of Certiorari — Mark H. Bonner, Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs

No. _________

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------MARK H. BONNER,

Petitioner,

v.

DENIS MCDONOUGH,

Secretary of Veterans Affairs,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Federal Circuit

---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦--------------------------------MARK H. BONNER

Counsel of Record

5840 Bromelia Court

Naples, FL 34119

(239) 687-5394

Mbonner@avemarialaw.edu

Counsel for Petitioner

May 27, 2022

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

The U.S. Court of Appeals for Veterans Claims is

an Article I court, and does not have the general equity

jurisdiction of U.S. District Courts or other Article III

courts. Where it does exercise equitable powers, it is

pursuant to specific statutory grant.

Veterans claims alleging Clear and Unmistakable

Error (CUE) are, by statute, exceptions to the doctrine

of res judicata (claim preclusion).

The questions presented are:

(1) Whether it is within the jurisdiction of the

U.S. Court of Appeals for Veterans Claims to

decide a veteran’s claim on the basis of the equitable remedy of collateral estoppel where no

statute so provides.

(2) Whether it is within the jurisdiction of the

U.S. Court of Appeals for Veterans Claims to

deny a CUE claim on the basis of Collateral

Estoppel (issue preclusion) where it is forbidden to do so on the basis of Res Judicata (claim

preclusion).

ii

PARTIES TO THE PROCEEDINGS

AND RULE 29.6 STATEMENT

Petitioner Mark H. Bonner was Claimant-Appellant

in No. 21-1817.

Respondent Denis McDonough, Secretary of Veterans Affairs, was Respondent-Appellee in No. 21-1817.

There are no publicly held corporations involved

in this proceeding.

The following are parties to the proceedings

within the meaning of Rule 14.1(b)(i): the estate of

Elizabeth H. Bonner, wife of veteran Emmett P. Bonner

(deceased).

RELATED CASES

•

Bonner v. Nicholson, No. 02-742, U.S. Court of

Appeals for Veterans Claims. Judgment entered June 17, 2005.

•

Bonner v. Nicholson, No. 2005-7190, U.S.

Court of Appeals for the Federal Circuit.

Judgment entered Aug. 16, 2007.

•

Bonner v. Wilkie, No. 18-6927, U.S. Court of

Appeals for Veterans Claims. Judgment entered Jan. 13, 2021.

•

Bonner v. McDonough, No. 2021-1817, U.S.

Court of Appeals for the Federal Circuit. Judgment entered Dec. 14, 2021.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

PARTIES TO THE PROCEEDINGS AND RULE

29.6 STATEMENT............................................

ii

RELATED CASES ...............................................

ii

TABLE OF AUTHORITIES ................................. vii

OPINIONS BELOW.............................................

1

STATEMENT OF JURISDICTION .....................

1

STATUTORY PROVISIONS INVOLVED ...........

2

REGULATORY PROVISIONS INVOLVED ........

3

INTRODUCTION ................................................

4

STATEMENT OF THE CASE..............................

6

REASONS FOR GRANTING THE PETITION ..... 15

I.

THE PRECEDENTIAL DECISION OF THE

VETERANS COURT IS PALPABLY BAD LAW

AND SHOULD BE REVERSED BEFORE

IT CAN HARM OTHER VETERANS ........ 15

iv

TABLE OF CONTENTS – Continued

Page

II.

COLLATERAL ESTOPPEL BY THE SECRETARY AGAINST VETERANS IS NOT

AVAILABLE TO THE SECRETARY IN

VETERANS CLAIMS CUE CASES FOR

TWO INDEPENDENT AND INDIVIDUALLYSUFFICIENT REASONS: 1) COLLATERAL

ESTOPPEL IS AN EQUITABLE DOCTRINE AND THE ARTICLE I VETERANS

COURT DOES NOT HAVE EQUITY JURISDICTION, AND 2) CUE IS A STATUTORY EXCEPTION TO RES JUDICATA

(CLAIM PRECLUSION) AND IS THEREFORE AN EXCEPTION TO COLLATERAL

ESTOPPEL (ISSUE PRECLUSION) ........ 16

A. Collateral estoppel is an equitable remedy. The Veterans Court lacks equitable

power; thus the Veterans Court lacked

the power to use collateral estoppel in

its denial of the widow’s benefits ........ 16

B. Using collateral estoppel against the

veteran in a VA CUE case is contrary to

statutory, regulatory, and caselaw ....... 20

C. The Veterans Court’s precedential

opinion suffers from additional chaotic

application and reasoning and should

be corrected.......................................... 25

1. Since the Board did not decide any

issue of collateral estoppel, it was

beyond the jurisdiction of the Veterans Court to do so ........................ 25

v

TABLE OF CONTENTS – Continued

Page

2. The Veterans Court did not conduct

the required balancing of the equities, which weigh in favor of the

widow .............................................. 27

D. The Federal Circuit has exclusive appellate jurisdiction and has failed to

correct the Veterans Court’s erroneous

precedent; precedent that will be used

against veterans until corrected, but even

when ultimately corrected will never

make the veterans or their families

whole. The issue is of great importance

to veterans and their families ............... 30

E. This case is a good vehicle to resolve

the propriety of collateral estoppel

used against veterans CUE claims ..... 32

F. Whether or not collateral estoppel is

available as a matter of law to the Veterans Court, this case must be remanded for further review because of

the manifold errors and obvious confusion of the Veterans Court in applying

the doctrine .......................................... 32

CONCLUSION..................................................... 33

APPENDIX

Court of Appeals for the Federal Circuit Judgment filed December 4, 2021 ........................... App. 1

Court of Appeals for Veterans Claims Opinion

filed January 13, 2021...................................... App. 3

vi

TABLE OF CONTENTS – Continued

Page

Board of Veterans’ Appeals Order filed November 2, 2018 ...................................................... App. 42

Court of Appeals for the Federal Circuit Denial

of Rehearing filed March 1, 2022................... App. 55

Bonner v. Nicholson, No. 2005-7190, filed August

16, 2007 .......................................................... App. 57

Bonner v. Nicholson, No. 02-742, filed June 17,

2005 ................................................................ App. 74

Application for Dependency and Indemnity

Compensation or Death Pension by Widow or

Child, filed September 9, 1975 ....................... App. 94

vii

TABLE OF AUTHORITIES

Page

CASES

Allen v. McCurry, 449 U.S. 90 (1980) .........................22

Arellano v. McDonough, 1 F.4th 1059 (Fed. Cir.

2021), cert. granted, 142 S. Ct. 1106 (Feb. 22,

2022) (No. 21-432) ...................................................17

Blonder-Tongue Labs., Inc. v. Univ. of Illinois

Found., 402 U.S. 313 (1971) ....................................19

Bonner v. Nicholson, 19 Vet. App. 188 (2005)......... 1, 25

Bonner v. Nicholson, 497 F.3d 1323 (Fed. Cir.

2007) ................................................................ passim

Bonner v. Wilkie, 33 Vet. App. 209 (2021).....................1

Bowles v. Russell, 551 U.S. 205 (2007) .......................24

Burris v. Wilkie, 888 F.3d 1352 (2018) .......................22

CBF Industries v. AMCI Holdings, 850 F.3d 58

(2d Cir. 2017) ...........................................................18

Christianson v. Colt Indus. Operating Corp., 486

U.S. 800 (1988) ........................................................22

Comm’r v. Gooch Milling & Elevator Co., 320

U.S. 418 (1943) ........................................................23

Conte v. Justice, 996 F.2d 1398 (2d Cir. 1993) ............20

Cook v. Principi, 381 F.3d 1334 (Fed. Cir.

2002) ............................................................ 20, 21, 25

Dixon v. McDonald, 815 F.3d 799 (Fed. Cir. 2016) ......22

Green v. Derwinski, 1 Vet. App. 212 (1991) ................26

Henderson v. Shinseki, 562 U.S. 428 (2011) ......... 21, 31

viii

TABLE OF AUTHORITIES – Continued

Page

INS v. Orlando Ventura, 537 U.S. 12 (2002) ..............32

In re Bailey, 812 F.3d 860 (Fed. Cir. 1999) .................23

Juarez v. Peake, 21 Vet. App. 537 (2008) ....................25

Mark H. Bonner v. Robert L. Wilkie, 33 Vet. App.

209 (2021) ...................................................... 1, 19, 24

Mintzmyer v. Dep’t of the Interior, 84 F.3d 419

(Fed. Cir. 1996) ........................................................24

Moch v. East Baton Rouge Parish School Bd.,

548 F.2d 594 (5th Cir. 1977) ....................................19

Monk v. Shulkin, 855 F.3d 1312 (Fed. Cir. 2017) ........23

Montana v. United States, 440 U.S. 147 (1979) .........21

Moody v. Principi, 360 F.3d 1306 (Fed. Cir.

2004) .................................................................. 10, 11

Nations v. Sun Oil Co. (Del.), 705 F.2d 742 (5th

Cir. 1983) .................................................................20

PenneCom B. V. v. Merrill Lynch & Co., 372 F.3d

488 (2d Cir. 2004) ....................................................20

SEC v. Chenery Corp., 332 U.S. 194 (1947) ................32

Seri v. Nicholson, 21 Vet. App. 441 (2007) ..................25

Smith v. Gober, 14 Vet. App. 227 (2000) .....................18

Taylor v. McDonough, 4 F.4th 1381 (Fed. Cir.

2021) (No. 2019-2211) .............................................17

Taylor v. West, 11 Vet. App. 436 (1998) .......................18

Title v. Immigration and Naturalization Service,

322 F.2d 21 (9th Cir. 1963) ......................................19

ix

TABLE OF AUTHORITIES – Continued

Page

U.S. v. LaFatch, 656 F.2d 81 (6th Cir. 1977) ...............19

United States v. Mendoza, 464 U.S. 154 (1984)..........22

United States v. Oregon, 366 U.S. 643 (1961).............31

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

473 U.S. 305 (1985) .................................................31

Young v. Shinseki, 25 Vet. App. 201 (2012) .......... 24, 25

STATUTES

28 U.S.C. § 1254(1) ........................................................1

38 U.S.C. § 301(b) ........................................................30

38 U.S.C. § 5001(b) ......................................................17

38 USC §§ 5100 et seq. .................................................3

38 U.S.C. § 5107(a) ......................................................26

38 U.S.C. § 5109A.............................................. 3, 12, 20

38 U.S.C. § 5109A(a) .....................................................3

38 U.S.C. § 5110 ............................................................2

38 U.S.C. § 5110(a)(1) ...................................................2

38 U.S.C. § 5110(b)(1) .................................................30

38 U.S.C. § 7104(d)(1) .................................................25

38 U.S.C. § 7111 ...................................................... 2, 20

38 U.S.C. § 7111(a) ........................................................2

38 U.S.C. § 7251 ..........................................................22

38 U.S.C. § 7252(a) ................................................ 26, 30

x

TABLE OF AUTHORITIES – Continued

Page

38 U.S.C. § 7292(c) ................................................ 30, 31

REGULATIONS

38 C.F.R. § 3.312(a) .......................................................3

38 C.F.R. § 3.313 ..................................................... 4, 10

38 C.F.R. § 3.313(b) ................................................... 4, 9

OTHER AUTHORITIES

G.C. Prec. 5-1994.........................................................10

Moore’s Federal Practice, § 132.01[4][d] ....................18

Restatement (2nd) of Judgments ...............................28

Scott, Collateral Estoppel by Judgment, 56

Harv.L.Rev. 1 (1942) ................................................19

1

PETITION FOR A WRIT OF CERTIORARI

Mark Healy Bonner, executor of the estate of the

widow of deceased U.S. Navy veteran Rear Admiral

Emmett P. Bonner, respectfully petitions for a writ of

certiorari to review the judgment of the United

States Court of Appeals for the Federal Circuit in this

case.

---------------------------------♦---------------------------------

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Federal Circuit (Bonner v. McDonough) (App. 12) is unreported but is available at 2021 U.S. App.

LEXIS 36893, *21, WL 5896532.

The opinion of the United States Court of Appeals

for Veterans Claims (Bonner v. Wilkie) is reported at 33

Vet. App. 209 (2021) (App. 3-41).

The upstream opinion of the Federal Circuit (Bonner v. Nicholson) is reported at 497 F.3d 1323 (Fed. Cir.

2007) (App. 57-73).

The opinion of the United States Court of Appeals

for Veterans Claims (Bonner v. Nicholson) is reported

at 19 Vet. App. 188 (2005) (App. 74-93).

---------------------------------♦---------------------------------

STATEMENT OF JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1). The judgment of the Federal Circuit

2

was entered on December 14, 2021 and the petition for

rehearing and for rehearing en banc was denied on

March 1, 2022.

---------------------------------♦---------------------------------

STATUTORY PROVISIONS INVOLVED

Section 5110 of title 38 is titled “Effective dates of

awards.” Section 5110(a)(1) states:

Unless specifically provided otherwise in this

chapter, the effective date of an award based

on an initial claim, or a supplemental claim,

of compensation, dependency and indemnity

compensation, or pension, shall be fixed in accordance with the facts found, but shall not be

earlier than the date of receipt of application

therefor.

38 U.S.C. § 5110(a)(1).

Section 7111 of title 38 is titled “Revision of decisions on the grounds of clear and unmistakable error.”

Section 7111(a) states:

A decision by the Board is subject to revision

on the grounds of clear and unmistakable error. If evidence establishes the error, the prior

decision shall be reversed or revised.

38 U.S.C. § 7111(a).

3

Section 5109A of title 38 is titled “Revision of decisions on grounds of clear and unmistakable error.”

Section 5109A(a) states:

A decision by the Secretary under this chapter

[38 USC §§ 5100 et seq.] is subject to revision

for clear and unmistakable error. If evidence

establishes the error, the prior decision shall

be reversed or revised.

38 U.S.C. § 5109A(a)

---------------------------------♦---------------------------------

REGULATORY PROVISIONS INVOLVED

Section 3.312 of title 38, Code of Federal Regulations, is titled “Cause of Death.” Section 3.312(a) states:

The death of a veteran will be considered a

having been due to a service-connected disability when the evidence establishes that such

disability was either the principal or a contributory cause of death. The issue involved

will be determined by the exercise of sound

judgment, without recourse to speculation, after a careful analysis has been made of all the

facts and circumstances surrounding the

death of the veteran, including, particularly,

autopsy reports.

38 C.F.R. § 3.312(a)

4

Section 3.313, Code of Federal Regulations, is titled “Claims based on service in Vietnam.” Section

3.313(b) states:

Service in Vietnam during the Vietnam Era

together with the development of non-Hodgkin’s lymphoma manifested subsequent to

such service is sufficient to establish service

connection for that disease.

38 C.F.R. § 3.313(b)

---------------------------------♦---------------------------------

INTRODUCTION

Our country provides financial protection for

members of the armed forces who are killed or injured

in service to our country. Besides being the right thing

to do, it has the benefit of allowing, for example, a

young man with a family to have a good conscience in

voluntarily serving his country in war, knowing he may

well be killed or seriously injured: he is assured that

his widow and children will be taken care of by a grateful nation. The principal vehicle for providing this

benefit is Dependency and Indemnity Compensation

(DIC).

The veteran in this case fought in three of our nation’s wars: WWII, Korea, and Vietnam. His death from

non-Hodgkin’s lymphoma is attributed to two particular events during his 37 years of service in the U.S.

Navy: being an onsite participant at the atmospheric

detonation in the Pacific of an H-bomb with its concomitant ionizing radiation, and commanding the U.S.

5

Naval Support Activity in Danang for a year, where he

was exposed to a heavy dose of agent orange. He died

of non-Hodgkin’s lymphoma in 1975, a few years after

leaving Vietnam. He was 56 when he began treatment,

and 57 when he died.

His widow timely applied for DIC, and specified

“cancer” as the cause of death. App. 94. Her claim was

summarily denied because the VA at that time declined to recognize any form of cancerous lymphoma to

be caused by service. Twenty years later, in the face of

overwhelming evidence, the government amended its

regulations to allow for service connection for NHL,

and made payment of DIC retroactive to the date of the

original claim even if previously denied. The widow

then applied for DIC retroactive to her original claim.

The Board of Veterans Appeals (Board) denied it because, they said, a claim for cancer did not state a claim

for non-Hodgkin’s lymphoma. App. 79-80. The Veterans Court agreed (with one judge, however, of the opinion that the adequacy of the claim should not have

been reached). The Federal Circuit affirmed, stating

that the proper procedure was for the widow to file a

CUE motion. App. 64-66. Circuit Judge Newman dissented on the widow’s behalf. App. 68-73.

The widow promptly filed her CUE motion. The

Board denied it, and the Veterans Court affirmed in a

precedential opinion. App. 3-41. The Veterans Court

ruled on basis of alleged collateral estoppel flowing

from the earlier Federal Circuit decision – a basis not

forming part of the Board decision the Veterans Court

was reviewing. App. 42-54. The majority of the Veterans Court panel felt bound by collateral estoppel and

6

stated that they may well have decided the case differently if collateral estoppel did not, in their view, bind

their hands. App. 23. The dissenting Veterans Court

Judge (Greenberg), quoting the earlier dissenting Circuit Judge, denominated the denial of the claim “a

travesty.” App. 40.

Upon appeal to the Federal Circuit, the court affirmed without opinion thus leaving the Veterans

Court’s precedential opinion as binding law.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

This case is on a request from a Navy widow for

DIC for her husband’s death in 1975 from a service

connected disease – non-Hodgkin’s lymphoma – shortly

after two tours of duty in Vietnam, retroactive to the

date of her original claim filed that year. This claim is

for 20 years of past-due DIC from September 9, 1975

when the VA received the widow’s application for DIC

until the VA commenced it on December 1, 1995.

This case should have been resolved in short order

and was not particularly difficult: the veteran served

two tours of duty in Vietnam and died a few years later

in 1975 of non-Hodgkin’s lymphoma. His widow sent a

prompt claim for DIC to the VA, specifying cancer as

cause of death.

The current state of the case is that the VA avoids

review behind a theory of collateral estoppel wherein

the Federal Circuit supposedly pretermitted the widow

7

from raising the nature of her claim in the very CUE

motion that the Federal Circuit ruled in 2007 was the

proper procedure for her to follow. If collateral estoppel

does not apply, then the Federal Circuit’s prescription to file a CUE motion makes sense. The Veterans

Court’s opinion that collateral estoppel does apply requires finding that the Federal Circuit sent the widow

on the errand of making a motion the basis for which

it had already precluded from consideration.

Birth, marriage, service, death. Emmett P. Bonner

(hereinafter RADM Bonner, or the Veteran) was born

in Macon, Georgia on February 27, 1918 and was appointed to the Naval Academy by Congressman Carl

Vinson, and entered Annapolis on June 1, 1935. RADM

Bonner graduated in 1939 and served and saw action

in WWII, the Korean War, and the Vietnam War. He

married Elizabeth H. Bonner (hereinafter the widow)

in 1942. During his service he was Gunnery Officer on

the USS St. Louis CL 49 (WWII), and was Commanding Officer of the following: the USS Cogswell DD 651

(Korea), CORTRON 12 a squadron of destroyers, the

USS Norton Sound AVM 1, the USS Oklahoma City

CLG 5 (Vietnam), Cruiser Destroyer Flotilla 6, the Atlantic Fleet Mine Force, and the U.S. Naval Support

Activity Danang (Vietnam). He was the director of the

Navy surface to air missile program, and participated

in onsite H-bomb tests in the Pacific. He retired on May

1, 1972 and died on August 1, 1975 of non-Hodgkin’s

lymphoma at age 57 after he endured a year’s unsuccessful treatment at the National Naval Medical

Center. The NNMC unsuccessfully treated him for

8

what the NNMC mistakenly thought was Hodgkin’s

disease.

1975 DIC Claim. His widow made a claim for DIC

on August 30, 1975 writing “cancer” in the box on the

VA’s form calling for cause of death. App. 94. On March

8, 1976 the VA denied DIC by means of a checked

box on a form announcing “death not due to service.”

Every month thereafter for 20 years the VA failed

to pay DIC to the widow, who was forced to make

do without it.

DOJ, NIH, and non-Hodgkin’s lymphoma. In 1995

the widow applied to the U.S. Department of Justice

for an award under the Radiation Exposure Compensation Act, because RADM Bonner had been an onsite

participant in some H-bomb tests in the Pacific and

had died of cancer. While the NNMC’s diagnosis in

1975 was Hodgkin’s disease their autopsy report also

contained much significant and specific exclusive evidence of non-Hodgkin’s. The Justice Department decided that the NNMC autopsy report should be

reviewed, and sent it to the National Institutes of

Health (NIH) for such review. The NIH reported to

the Justice Department that RADM Bonner had actually died of non-Hodgkin’s lymphoma, and that the

1975 NNMC diagnosis was in error. The Justice Department awarded the widow RECA payment based on

the NIH report and diagnosis of non-Hodgkin’s lymphoma.

1995 Request for application of new, retroactive

laws. In 1995 the widow also became aware of new VA

9

laws finding non-Hodgkin’s lymphoma to be service

connected and authorizing retroactive application with

a retroactive effective date even to previously denied

DIC claims. Her previously denied claim was for cancer. On October 31, 1995 the widow applied to the VA

for DIC under these laws. On November 27, 1995 the

VA issued a rating decision finding cause of death as

Hodgkin’s, and on July 1, 1996 the VA granted an effective date of December 1, 1994, without addressing

the issue of date of original claim.

On August 15, 1996 appellant filed an appeal with

the Board and moved the Board to advance the appeal

on the docket because of the widow’s old age. It was

denied. On September 28, 2001, 1870 days later, the

Board denied the appeal, fatally confusing what the

claim was with why it was denied:

“However, even assuming without deciding,

that the appellant’s reading of VAOPGCPREC

5-94 as providing ‘benefits under 3.313(b) retroactively effective to the date of the original

claim, regardless of whether the claim had

previously been denied,’ is correct, the board

concludes that the previous denial in such a

case must have been a denial of a claim for

service connection for NHL, not a denial of

service connection for another disease.” App.

79-80.

The widow appealed to the Veterans Court, which

affirmed the BVA decision denying the widow’s November 1995 informal claim for DIC. App. 74-93. Judge

Hagel parted from the panel majority on whether the

10

claim of cancer was sufficient to claim non-Hodgkin’s

lymphoma as cause of death:

“Although I concur in the result of this opinion, I respectfully disagree with the reasoning

employed by the majority in part III.B regarding Mrs. Bonner’s claim for service connection

for non-Hodgkin’s lymphoma.

*

*

*

[T]he issue of the breadth of Mrs. Bonner’s initial claim for benefits is not, in my view,

properly before us at this time. Consequently,

I believe that it was unnecessary for the majority in part III.B to reach the question of

whether a previously denied application for

service connection for “cancer” may include a

claim for non-Hodgkin’s lymphoma pursuant to G.C. Prec. 5-1994 and § 3.313 Ante at 810.”

(Hagel, J., concurring). App. 91.

The widow appealed to the Federal Circuit, which

affirmed the Veterans Court.1 App. 57-73.

1

The majority panel in that case wrote: “Mrs. Bonner does

not explain how the Veterans Court purportedly misinterpreted

Moody [v. Principi].” App. 66. Our point was that a sympathetic

(or even plain) reading of the claim of cancer could not rationally

lead to the decision reached by the Veterans Court, to wit: that

making a claim for cancer did not make a claim for NHL. Our

argument was that therefore the Veterans Court, notwithstanding having recited the requirement of Moody, could not have been

applying it, as shown by the impossible result they reached. That

is, the result reached, assuming attempted application of Moody

and not disregard of it, must have entailed a fatal misunderstanding

11

On the issue of cause of death, the Federal Circuit

held:

“The Veterans Court did not decide or rely on

the cause of Admiral Bonner’s death in affirming the Board’s decision.”

App. 67.

On the issue of adequacy of the 1975 claim, the

Federal Circuit held:

“Additionally, the Government contends that

Mrs. Bonner failed to demonstrate how the VA

erred in developing her 1975 claim and that

even if Mrs. Bonner were able to show that

she had reasonably raised a claim for NHL in

1975 that has not yet been adjudicated, such

an error is to be corrected through a motion

asserting the VA had committed clear and unmistakable error (CUE).”

App. 64.

After setting forth this invitation by the government this Court noted:

“The only way the RO’s unappealed 1976 decision can be collaterally attacked is through

a claim of ‘clear and unmistakable’ error (‘CUE’).

At oral argument Mrs. Bonner conceded that

of Moody by the Veterans Court and application by it of an erroneous ad hoc interpretation of Moody flatly inconsistent with it.

It’s one thing to shield application of law to the facts from review,

but if the rule of law applied, as shown by the decision reached, is

at odds with the law, then it is an issue of law and may be reviewed.

12

a CUE claim was not at issue in the case.

Therefore, the issue of the validity of the 1976

decision is not before us.”

App. 65.

“CUE is not simply a ‘buzz word’ as stated by

the dissent. It is a statutorily created avenue

for challenging a VA decision. See 38 U.S.C.

§ 5109A”

App. 66.

Dissenting from the panel majority’s opinion, Circuit Judge Newman wrote:

“The Department of Veterans Affairs relied on

a plainly incorrect autopsy diagnosis to deny

Mrs. Bonner the Dependency and Indemnity

Compensation benefits to which she is entitled. From the panel majority’s denial of these

benefits and refusal to correct the concededly

incorrect cause of death, I respectfully dissent.

*

*

*

It is not disputed that the second diagnosis is

the correct one.

*

*

*

It is not an unreviewable factual question of

whether the VA is required to recognize an

undisputed error in the veteran’s records, and

to apply the correct cause of death to survivor’s claims. Upon such recognition, Mrs. Bonner’s claim would be subject to determination

on the correct grounds, whether or not she

13

used the buzz-words ‘clear and unmistakable

error (CUE)’ in her petition (as the government argues). The obligatory veteran-friendly

position of the law governing veterans’ claims

negates this hyper-technical reason whereby

the Veterans Court refused to consider the

merits of Mrs. Bonner’s claim. From my colleagues’ acceptance of this reasoning, I respectfully dissent.”

App. 68-73.

Subsequent CUE Motion and appeal to Veterans

Court. Following the guidance of the Federal Circuit,

the widow filed her first and only CUE motion with the

Board of Veterans Appeals and with the Regional Office on June 5, 2008. On November 2, 2018 the Board

denied it, having taken over 10 years to do so. App. 4254.

The 2021 Veterans Court decision. The Veterans

Court affirmed the Board’s denial of the widow’s CUE

motion, based in large part on the basis of purported

collateral estoppel arising from the Federal Circuit’s

2007 Bonner v. Nicholson decision, supra, the Veterans

Court majority stating: “Therefore, applying the principles of collateral estoppel basically ends the matter,”

and “We are left with no choice but to, reluctantly, affirm.” Judge Greenberg dissented based on application

of the law of collateral estoppel and issues of equity

and statutory interpretation.

14

More particularly, in its majority decision, the Veterans Court stated:

“We will return to the judicial decisions in a

moment because, as we explain, they are critical to the resolution of the appeal before us.”

App. 7.

“But, in Mrs. Bonner’s prior appeal both this

Court and the Federal Circuit made determinations in the precedential decisions that

impact the Court’s decision here today.” App.

13.

“As we discuss below, the findings in these two

decisions guide us today. Quite simply, the

conclusions reached in connection with Mrs.

Bonner’s prior appeals leave us with little

room to maneuver.” App. 15.

“ . . . It does not go unnoticed that the principles of collateral estoppel, or issue preclusion,

apply here.” App. 15.

“Therefore, applying the principles of collateral estoppel basically ends the matter.” App.

16.

“Those decisions make it difficult – effectively

impossible – to find CUE in the February 1976

decision today on the basis argued by the appellant.” App. 23.

“Moreover, if we were writing on a blank slate,

we might very well have reached the same

conclusion as Judge Newman did in her dissent in Mrs. Bonner’s earlier appeal.” App. 23.

15

“We are left with no choice but to, reluctantly,

affirm.” App. 24.

Thus, the Veterans Court made it clear that collateral estoppel was determinative of the Veterans

Court’s precedential decision. The Federal Circuit has

affirmed without opinion.

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE PETITION

I.

THE PRECEDENTIAL DECISION OF THE

VETERANS COURT IS PALPABLY BAD

LAW AND SHOULD BE REVERSED BEFORE IT CAN HARM OTHER VETERANS.

The VA does not pay any interest on claims later

found to have been wrongly denied, nor does it provide

any compensation for the harm that wrongful delays,

often massive delays, have caused. The veterans and

their families are thus never made whole for VA errors,

even where the VA eventually corrects them or is ordered to correct them. Therefore there is a unique urgency in correcting VA errors as soon as possible.

16

II.

COLLATERAL ESTOPPEL BY THE SECRETARY AGAINST VETERANS IS NOT AVAILABLE TO THE SECRETARY IN VETERANS

CLAIMS CUE CASES FOR TWO INDEPENDENT AND INDIVIDUALLY-SUFFICIENT REASONS: 1) COLLATERAL ESTOPPEL IS AN

EQUITABLE DOCTRINE, AND THE ARTICLE I VETERANS COURT DOES NOT

HAVE EQUITY JURISDICTION, AND 2)

CUE IS A STATUTORY EXCEPTION TO

RES JUDICATA (CLAIM PRECLUSION)

AND IS THEREFORE AN EXCEPTION TO

COLLATERAL ESTOPPEL (ISSUE PRECLUSION).

A. Collateral estoppel is an equitable remedy. The Veterans Court lacks equitable

power; thus the Veterans Court lacked

the power to use collateral estoppel in

its denial of the widow’s benefits.

The Veterans Court below issued an opinion internally at odds with itself. On the one hand it raised the

equitable affirmative defense of collateral estoppel sua

sponte for the first time on appeal and used it to deny

the veteran’s claim, while at the same time failing to

apply the equitable law of collateral estoppel concerning waiver and weighing the equities in favor of the

veteran, apparently being of the opinion that it did not

have equity jurisdiction. Judge Greenberg’s dissent

makes this clear.

The issue of the scope of the equity jurisdiction

of the U.S. Court of Appeals for Veterans Claims is

17

currently before this Court in Arellano v. McDonough,

1 F.4th 1059 (Fed. Cir. 2021), cert. granted, 142 S. Ct.

1106 (Feb. 22, 2022) (No. 21-432). The question presented there is whether equitable tolling applies to 38

U.S.C. § 5001(b) regarding the effective date of veterans benefits awards. The government has argued that

it does not. This Court’s decision in Arellano will foreseeably affect the outcome of the instant case. If the

Veterans Court has equitable jurisdiction, this case

should be remanded to the Veterans Court for exercise

of that jurisdiction, as argued by Judge Greenberg in

his dissent below. If this Court rules that the Veterans

Court lacks such jurisdiction, this case should be remanded to the Veterans Court with instructions that

the equitable doctrine of collateral estoppel is not

available in that court.

It is noted that the Federal Circuit has stayed proceedings in a veterans case pending this Court’s decision in Arellano: Taylor v. McDonough, 4 F.4th 1381

(Fed. Cir. 2021) (No. 2019-2211) by its order therein entered the day certiorari was granted in Arellano. Taylor raises the issue of collateral estoppel against the

government’s asserting untimeliness where the government administered chemical warfare agents to the

veteran in an experiment and threatened imprisonment if the veteran were to disclose this.

In ruling against the widow below, the Veterans

Court panel majority below stated:

“ . . . the principles of collateral estoppel, or

issue preclusion, apply here. . . . Therefore,

18

applying the principles of collateral estoppel

basically ends the matter.”

Bonner v. Wilkie, at 216.

Moore’s Federal Practice states:

“Collateral estoppel (issue preclusion) is an

equitable doctrine that should be applied only

when the alignment of the parties and legal

issue and factual issues raised warrant it. [citing] CBF Industries v. AMCI Holdings, 850

F.3d 58, 78 (2d Cir. 2017) (because issue preclusion is an equitable doctrine, litigant who

invokes it must have clean hands, and court

will not apply issue preclusion in favor of one

who acted fraudulently or who has, by deceit

or other means gained unfair advantage in

previous tribunal.)”

Moore’s Federal Practice, § 132.01[4][d].

The Veterans Court has held that it is not a court

of equity and cannot provide equitable relief:

“It is well established that this Court is a

court of law, and not of equity, and we cannot

provide equitable relief. Taylor v. West, 11 Vet.

App. 436, 330 (1998).” Smith v. Gober, 14 Vet.

App. 227, 231 (2000).

If the Veterans Court does have equitable power,

appellant would respectfully urge this Court to rule on

the basis of Judge Greenberg’s dissent herein where he

wrote:

“If there was ever a case for the Court to set

precedent of exercising its equitable powers

19

bestowed upon it by Congress, it is this one.

The veteran served the United States honorably for over four decades and multiple conflicts and wars, and left behind his wife and

children after dying from cancer due to herbicide and radiation exposure. For the Court to

ignore the ‘obligatory veteran-friendly positions of the law’ and deny a veteran, or his

or her family, deserved benefits based on a

‘hypertechnical reason whereby [our Court]

refused to consider the merits of [the appellant’s] claim of CUE is a travesty that plainly

conflicts with Congressional intent in creating

a veteran – friendly system.’ (citing to Bonner

v. Nicholson, 497 F.3d at 1331 (Newman, J.,

dissenting).” App. 40.

See also Title v. Immigration and Naturalization

Service, 322 F.2d 21, 24 (9th Cir. 1963) (“It has been

recognized that the doctrine should not be exercised in

such a manner as to work an injustice.” [citing] Scott,

Collateral Estoppel by Judgment, 56 Harv.L.Rev. 1, 29

(1942); U.S. v. LaFatch, 656 F.2d 81, 83 (6th Cir. 1977)

(application of res judicata would result in ‘manifest

injustice’ and would violate overriding public policy);

Moch v. East Baton Rouge Parish School Bd., 548 F.2d

594, 597 (5th Cir. 1977).

“[C]ollateral estoppel is an equitable doctrine

– not a matter of absolute right. Its invocation

is influenced by considerations of fairness in

the individual case. See Blonder-Tongue Labs.,

Inc. v. Univ. of Illinois Found., 402 U.S. 313,

334 (1971) (‘In the end, the decision [on an

20

issue of collateral estoppel] will necessarily

rest on the trial courts’ sense of justice and equity.’); Conte v. Justice, 996 F.2d 1398, 1400 (2d

Cir. 1993) (doctrine ‘is premised on notions of

due process and fairness.’); Nations v. Sun Oil

Co. (Del.), 705 F.2d 742, 744 (5th Cir. 1983)

(‘Collateral estoppel is an equitable doctrine.’).”

PenneCom B. V. v. Merrill Lynch & Co., 372 F.3d 488,

493 (2d Cir. 2004).

B. Using collateral estoppel against the

veteran in a VA CUE case is contrary to

statutory, regulatory, and caselaw.

The Veterans Court lacks jurisdiction to deploy

collateral estoppel at all, and especially in the context

of a CUE motion. The CUE statute prohibits its use in

this context. The Federal Circuit has so held in Cook v.

Principi, 381 F.3d 1334, 1337 (Fed. Cir. 2002). Cook

confirms that CUE motions are an exception to the

rule of finality of res judicata:

“Principles of finality and res judicata apply

to agency decisions that have not been appealed and have become final. . . . There are,

however, two statutory exceptions to the rule

of finality. . . . Second, a decision ‘is subject to

revision on the grounds of clear and unmistakable error.’ 38 U.S.C. §§ 5109A (decision by

the Secretary) & 7111 (decision by the Board).

21

These are the only statutory exceptions to the

finality of VA decisions.” [footnote omitted]

Cook v. Principi, 381 F.3d 1334, 1337 (Fed. Cir. 2002).

Collateral estoppel does properly appear in the

Federal Circuit’s jurisprudence in cases from other tribunals within that Court’s jurisdiction, but is problematic in veterans law for legal and policy reasons. The

Veterans Court did not cite any precedent from this

Court or the Federal Circuit allowing it.

In Henderson v. Shinseki, 562 U.S. 428, 438 (2011)

this Court observed that rules of law appropriate before Article III tribunals such as U.S. District Courts

did not necessarily apply to the Article I Veterans

Court, in ruling that a notice of appeal was not jurisdictional in the latter court. Likewise, this doctrine appropriate for District Courts should not migrate into

usage in the Veterans Court.

This Court has defined the doctrine as follows:

“Under the judicially developed doctrine of

collateral estoppel, once a court has decided

an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action

involving a party to the prior litigation. Montana v. United States, 440 U.S. 147, 153 (1979).

Collateral estoppel, like the related doctrine

of res judicata, serves to ‘relieve parties of the

cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing

inconsistent decisions, encourage reliance on

22

adjudication.’ Allen v. McCurry, 449 U.S. 90,

94 (1980).”

United States v. Mendoza, 464 U.S. 154, 158 (1984).

The error below was in ascribing the equitable

powers possessed by Article III tribunals to the Article

I Veterans Court.

The Federal Circuit has held:

“The Veterans Court, as an Article I tribunal,

is a creature of statute by definition. See 38

U.S.C. § 7251. (‘There is hereby established,

under Article I of the Constitution of the

United States, a court of record to be known

as the United States Court of Appeals for Veterans Claims.’) As such, the court can only

act through an express grant of authority

from Congress. See Dixon v. McDonald, 815

F.3d 799 (Fed. Cir. 2016) (‘Courts created by

statute can have no jurisdiction, but such the

statute confers.’ (quoting Christianson v. Colt

Indus. Operating Corp., 486 U.S. 800, 818

(1988)) To resolve Appellants’ challenge, therefore, we must construe the Veterans Court’s

jurisdictional statute to determine whether it

allows the court to provide the equitable relief

they seek.”

Burris v. Wilkie, 888 F.3d 1352, 1357 (2018).

The Federal Circuit in Burris continued as to

whether “inherent” powers might apply:

“It is clear that the Veterans Court has authority to grant certain forms of non-substantive

23

equitable relief required to enable the court to

carry out its statutory grant of jurisdiction.

See In re Bailey, 812 F.3d 860, 864 n.4 (Fed.

Cir. 1999) (‘Like an Article III court, the Court

of Appeals for Veterans Claims has a need to

control court proceedings before it and a need

to protect the exercise of its authority in connection with those proceedings.’) (citing Monk

v. Shulkin, 855 F.3d 1312, 1320 (Fed. Cir.

2017) . . .

But the Veterans Court cannot invoke equity

to expand the scope of its statutory jurisdiction. See Comm’r v. Gooch Milling & Elevator

Co., 320 U.S. 418, 421 (1943) . . . ”

Id. at 1261.

Res judicata is foreclosed by statutory provision,

regulation, and judicial decision. Collateral estoppel

comprises part of and is a necessary element of it, being administered piecemeal rather than all at once and

having the effect of foreclosing CUE review. Both are

in fatal tension with the CUE statute and purpose. And

neither is “required to enable the court to carry out its

statutory grant of jurisdiction.” Neither this Court nor

the Federal Circuit has never allowed it in a CUE context. The sole case allowing it is the Veterans Court’s

precedential opinion below that we are asking this

Court to reverse.

In the instant case, the statutory jurisdiction of

the Veterans Court is limited to reviewing decisions of

the Board of Veterans Appeals. Here, the Board of

24

Veterans Appeals did not so much as mention the Federal Circuit decision said to give rise to collateral estoppel, nor did the Board even cite it. Therefore it was

beyond the jurisdiction of the Veterans Court to do so.

See also Bowles v. Russell, 551 U.S. 205, 214 (2007) (explaining that a court “has no authority to create equitable exceptions to jurisdictional requirements).”

Importation without analysis of whether veterans

law permits it. The Veterans Court cites Young v.

Shinseki, 25 Vet. App. 201, 204 (2012) (en banc) in footnote 33 of its opinion below for the proposition that

“principles of collateral estoppel, or issue preclusion,

apply here.” App. 15. The Veterans Court in Young,

without discussion of whether collateral estoppel applies in veterans claims appeals from the Board, proceeded simply to apply it, citing there to “Mintzmyer v.

Dep’t of the Interior, 84 F.3d 419, 423 (Fed. Cir. 1996).”

Young, 25 Vet. App. at 204. Mintzmyer, an appeal from

the Merit Systems Protection Board, was a suit on constructive discharge, “an issue that was fully litigated

in the district court.” Mintzmyer, 84 F.3d at 423. In dissent in Young, Judges Lance and Hagel, after observing “The infirmity of the majority opinion is simply

breathtaking” stated:

“However, collateral estoppel generally prevents any adjudication system from issuing

decisions that reach inconsistent conclusions about the same factual issue. Hence,

this Court has repeatedly modified decisions

to avoid collateral estoppel issues when the

Board has made unnecessary findings of

25

finality unfavorable to a claimant. See Juarez

v. Peake, 21 Vet. App. 537, 544 (2008); Seri v.

Nicholson, 21 Vet. App. 441, 444-45 (2007). Rather than address Cook and the cases cited

therein, the majority cites Federal Circuit

precedent outside of veterans law pertaining

to court litigation to assert that a different

test would apply and then fails to explain its

application.”

Young, 25 Vet. App. at 209 (Lance, J., joined by Hagel,

J., dissenting).

Using collateral estoppel is beyond the jurisdictional authority of the Veterans Court, and the court

below erred in ruling based on it. The Federal Circuit

precedent allowing the use of collateral estoppel in a

Veterans claim case is ill-conceived and should be corrected.

C. The Veterans Court’s precedential

opinion suffers from additional chaotic

application and reasoning and should

be corrected.

1. Since the Board did not decide any

issue of collateral estoppel, it was

beyond the jurisdiction of the Veterans court to do so.

38 U.S.C. § 7104(d)(1) requires that the Board

must decide “all material issues of fact and law presented on the record.” The Board did not cite or refer

or rely on Bonner v. Nicholson, 19 Vet. App. 188 (2005)

and the subsequent decision on the widow’s appeal to

26

the Federal Circuit, Bonner v. Nicholson, 497 F.3d 1323

(Fed. Cir. 2007). The Board made no mention of, nor applied, collateral estoppel, despite being aware of the

opinions cited above. The time for the Secretary to

raise collateral estoppel was when the case was before

the Board: a time when facts are to be found, and

where the veteran has the important protection that

Board rulings in his favor are shielded from VA appeal.

This is a unique privilege for the veteran, establishing

an important right to a non-appealable judgment.

Board decisions are not appealable by the VA. 38

U.S.C. § 7252(a) provides: “The Court of Appeals for

Veterans Claims shall have exclusive jurisdiction to review decisions of the Board of Veterans’ Appeals. The

Secretary may not seek review of any such decision.”

Thus any issue of collateral estoppel was not preserved

for appeal by the VA, and allowing it conflicted with

laws requiring decision by the Board.

Collateral estoppel in this case was raised for the

first time on appellate review before the United States

Court of Appeals for Veterans Claims. The affirmative

defense of collateral estoppel is typically raised in the

U.S. District Court where factfinding occurs and equitable principles exist. Importantly, no party is there

clothed with the legal benefit of receiving a judgment

that cannot be appealed by the other party (save in the

case of a criminal acquittal). Not so in Veterans law for

matters occurring before the Board of Veterans Appeals: if the Veteran prevails at the Board level on an

issue or ruling, the VA may not appeal. 38 U.S.C.

§ 5107(a); see generally Green v. Derwinski, 1 Vet. App.

27

212 (1991). So, where the ruling on collateral estoppel

is made can have outcome-determinative consequences. In the instant case, for the Secretary to raise

for the first time on appeal to the Veterans Court an

issue the Secretary’s Board did not raise or consider or

rule on, especially when it purports to effect a denial of

compensation, is essentially to sandbag the veteran

and deny to him an important right to a non-appealable favorable result on the issue. Here, the widow was

wrongfully denied any opportunity to have this issue

decided at the Board level.

If this Court finds that collateral estoppel against

a veteran’s claim is available, this Court should rule

that it must be raised at the Board level or it is waived,

and that where waived its usage on appeal by the Veterans Court exceeds the jurisdiction of the Veterans

Court.

2. The Veterans Court did not conduct

the required balancing of the equities, which weigh in favor of the

widow.

It is black letter law that collateral estoppel is an

equitable remedy, and is not mandatory, but rather

subject to the discretion of the court, and requires a

balancing of equities.

28

The Restatement of Judgments, 2nd states:

Ҥ 28 Exceptions to the General Rule of

Issue Preclusion

Although an issue is actually litigated and determined by a valid and final judgment, and

the determination is essential to the judgment, relitigation of the issue in a subsequent

action between the parties is not precluded in

the following circumstances: . . .

(2) The issue is one of law and . . . (b) a new

determination is warranted in order to take

account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws. . . .

(5) There is a clear and convincing need for

a new determination of the issue (a) because

of the potential adverse impact of the determination on the public interest . . . (b) because

it was not sufficiently foreseeable at the time

of the initial action that the issue would arise

in the context of a subsequent action, or (c) because the party sought to be precluded, as a

result of the conduct of his adversary or other

special circumstances, did not have an adequate opportunity or incentive to obtain a full

and fair adjudication in the initial action. . . .”

Ҥ 29 Issue Preclusion in Subsequent Litigation with Others

A party [is] precluded from relitigating an issue with an opposing party . . . unless . . . other

circumstances justify affording him an opportunity to relitigate the issue. The circumstances

29

to which considerations should be given include those enumerated in § 28 and also

whether: . . . (8) [o]ther compelling circumstances make it appropriate that the party

be permitted to relitigate the issue. . . . Comment j. Other Circumstances. . . . Important

among such other circumstances is the disclosure that the prior determination was plainly

wrong . . . ”.

The fact that the veteran was given fatal cancer

by U.S. Government action in spraying agent orange

heavily on Danang and was subsequently misdiagnosed by the U.S. Government’s Naval hospital and

treated for a disease he did not have and died, should

be considered in evaluating the equities of deploying a

doctrine whose effect is to shield the government

where the Government was the author of the injury.

The Veterans Court below erred by failing to balance the equities, a balancing the law requires it to do.

The court below made it apparent that it did not feel it

had any discretion or duty to do so. However, this balancing is essential to the law of collateral estoppel.

30

D. The Federal Circuit has exclusive appellate jurisdiction and has failed to

correct the Veterans Court’s erroneous

precedent; precedent that will be used

against veterans until corrected, but

even when ultimately corrected will

never make the veterans or their families whole. The issue is of great importance to veterans and their families.

The Federal Circuit has exclusive appellate jurisdiction. Specifically, 38 U.S.C. § 7292(c) gives the

Federal Circuit “exclusive jurisdiction to review and

decide any challenge to the validity of any statute or

regulation or any interpretation thereof ” raised in an

appeal from the Veterans Court. The Veterans Court,

in turn, has exclusive jurisdiction to review decisions

of the Board, which is part of the VA. See 38 U.S.C.

§ 7252(a). Because the VA is the sole agency charged

with administering veterans’ benefits statutes, see 38

U.S.C. § 301(b), this means the Federal Circuit has exclusive jurisdiction for reviewing any challenge to the

interpretation of such statutes, including 38 U.S.C.

§ 5110(b)(1).

Given the Federal Circuit’s unique subject matter

jurisdiction, no other circuit is likely to address or critique the Federal Circuit’s decision leaving intact the

Veterans Court’s precedent. In other words, this is not

a situation where a majority view will eventually

emerge among the circuits given enough time. The only

circuit with jurisdiction to address this issue has spoken in allowing the Veterans Court’s decision to stand.

31

Because the Federal Circuit has exclusive jurisdiction to review veterans’ benefits statutes, see 38 U.S.C.

§ 7292(c), this rule of law is unlikely to be addressed or

resolved by any other circuit court. Accordingly, this

appeal is ripe for Supreme Court review. The issue presented here is important to tens of thousands of current and future military veterans.

Congress created the veterans’ benefits system to

compensate veterans for the sacrifices they make in

service to our country. The system “is designed to function throughout with a high degree of informality and

solicitude for the claimant.” Henderson v. Shinseki, 562

U.S. 428, 431 (2011) (quoting Walters v. Nat’l Ass’n of

Radiation Survivors, 473 U.S. 305, 311 (1985)); see also

United States v. Oregon, 366 U.S. 643, 647 (1961) (“The

solicitude of Congress for veterans is of long standing.”).

In the case at bar, the Veterans Court expressed

the sentiment that if it were writing on a clean slate

it’s decision might well have been that of the Judge

Newman in dissent. In Mr. Arellano’s case, supra, the

Veterans Court expressed a similar sentiment. “If we

were writing on a blank slate, appellant’s arguments

would be worth exploring. But our slate is far from

blank.”

The CUE statute and regulation in fact do provide

for clean slate in CUE motions, as does the limited jurisdiction of the Article I Veterans Court.

32

E. This case is a good vehicle to resolve

the propriety of collateral estoppel used

against veterans CUE claims.

In any event, the question of whether a remand is

necessary is not a question that turns on disputed

facts. Rather, it turns on a disputed principle of jurisprudence. See SEC v. Chenery Corp., 332 U.S. 194, 196

(1947) (“[A] reviewing court, in dealing with a determination or judgment which an administrative agency

alone is authorized to make, must judge the propriety

of such action solely by the grounds invoked by the

agency. If those grounds are inadequate or improper,

the court is powerless to affirm the administrative action by substituting what it considers to be a more

adequate or proper basis.”); accord INS v. Orlando Ventura, 537 U.S. 12, 16-17 (2002) (“Generally speaking, a

court of appeals should remand a case to an agency for

decision of a matter that statutes place primarily in

agency hands.”).

F. Whether or not collateral estoppel is

available as a matter of law to the Veterans Court, this case must be remanded for further review because of

the manifold errors and obvious confusion of the Veterans Court in applying

the doctrine.

If the equitable affirmative defense of collateral

estoppel is either not available to the Article I Veterans

Court, or if it is, it is nevertheless not available in

CUE cases, then the judgment of the Federal Circuit

33

affirming the judgment of the Veterans Court should

be reversed.

If the Veterans Court is found to have equity jurisdiction sufficient to consider collateral estoppel in a

veteran’s CUE case, the Veterans Court should nevertheless be reversed and instructed that if that court is

to use the equitable doctrine of collateral estoppel, that

court has the simultaneous obligation to weigh the equities and has the authority to decline estoppel. In its

precedential opinion, the Veterans Court makes it

clear that it does not believe it has the authority to decline using collateral estoppel, nor the obligation to

weigh the equities.

---------------------------------♦---------------------------------

CONCLUSION

For the foregoing reasons, this Court should grant

the petition for a writ of certiorari.

Respectfully submitted,

MARK HEALY BONNER

Counsel of Record

5840 Bromelia Court

Naples, FL 34119

(239) 687-5394

Counsel for Petitioner