Peake v. Sanders--December 8, 2008

This is a hypertechnical case which will receive little press coverage outside a narrow circle of people who deal with Veterans' law. Its technicality is worthy of a Catholic canon lawyer or a Jewish talmudic lawyer. Oops, seven of the nine Justices on the Court are either Catholic or Jewish, though none of them, to my knowledge is versed in canon or talmudic law. But, just to follow that thread for a moment, wouldn't it be great to have a summer judicial seminar for a month--attended by Supreme Court Justices--led for two weeks by a rabbinic scholar (on talmudic law) and two weeks a canon lawyer (on medieval canon law), and see what they learn? Hm. Then, what would Justices Stevens and Souter do? Ask the Episcopalians for "media via" gloss on it all?

Well, after that bit of reverie, we ought to get to this case. It has to do with whether the failure of the Veterans' Administration to give proper notice to a claimant of the deficiency of his/her claim for benefits automatically prejudices the claimant or only prejudices the claimant if s/he can show that s/he was materially damaged by the omission. Exciting. Riveting. Here are the facts from one of these two consolidated cases.

Relevant Facts from One Case

Respondent Mr. Sanders served in the US Army from 1942-45. In 1948 he filed a claim with a VA regional office, claiming that an eye condition that he had was combat-related. Claim denied. Sanders didn't appeal. Then, in 1991, he re-opened his case. He obtained statements of two ophthalmologists claiming, in fact, that his injuries were combat-related. A VA ophthalmologist weighed in, predictably, on the other side. His claim, again, was denied.

The Board of Veterans Appeals (I ask you honestly...how many of you knew that such a board existed?) affirmed, saying that Sanders' letters were offered in "speculative language and without the benefit of consideration of relevant medical evidence." The evidence cited by the VA doctor, that Sanders' eye problem was infection rather than injury-related, seemed more "probative" to the court.

Sanders appealed to the Veterans' Court, but changed the nature of his argument a bit. On appeal he claimed that the VA had not complied with the recently-passed Veterans Claims Assistance Act of 2000 ("VCAA" or "Act"), which required the Secretary (of Veterans' Affairs) to give assistance to claimants in developing the claims to make sure that all documents are in place. That is, filling out federal (or other) forms can be a headache of nightmarish proportions. The law simply lays out the burden on the VA to clarify who has to obtain which information (the claimant or the agency) and whether or not the file is complete. Good law, I think.

So, back to our story. Sanders argued before the Veterans' Court that the agency had not told him "who ultimately would be responsible for obtaining evidence necessary to substantiate the claim," and also had "failed to provide proper notice before the initial unfavorable decision by the agency." But, alas, Mr. Sanders' procedural claim was rejected. Is all hope lost? Hardly...He appealed to the 4th Circuit, thus bringing the case out of the administrative agency world into the bracing air of the federal courts.

Well, the federal court helped him. The Fourth Circuit (normally known as one of the most conservative in the country; but maybe that makes sense here, because it is the case of a lowly WWII veteran, one of the 'greatest generation,' against the big old, bad old agency) reversed. It noted that the Act mentioned above requires the Veterans Court to "take due account of the rule of prejudicial error" when evaluating claims that the VA has erred in giving the notice required by the Act. But the important ruling of the court, and why it reversed all the intra-agency boards and courts, was that every Act notice error should be:

"presumed prejudicial, requiring reversal unless the VA can show that the error did not affect the essential fairness of the adjudication."

Then, as is customary with courts, it gave a "three-part test" to determine how a VA could show that their error didn't affect the essential fairness of the decision.

Of course, the VA rose to contest the issue, both in the 4th Circuit and its Petition for Certiorari to the Court, by claiming that notice failure should lead to reversal only if prejudice is definitively shown by the claimaint. The VA argued that this is the rule/assumption behind the Administrative Procedures Act notice provision--which lay behind the 2000 Act notice provision. But the 4th Circuit was adamant. Mr. Sanders had been prejudiced here, it claimed, and that was that. Case reversed.

Before the Supreme Court

Thus, you have the case. When improper or incomplete notice is given by the VA to a claimant, and a decision is then rendered against the claimaint, is there a burden on the claimant to show that the inadequate procedure actually prejudiced him or is the burden on the VA unless it can show that there was, in fact, no prejudice? Who has the burden, then, to prove prejudice? Sounds like a third-grade playground argument, doesn't it? Or, if we want to doll it up in more sophisticated terminology reflecting the dignity of the Western tradition, it sounds like something that a canoninst or a talmudist might delight in. Or, the Supreme Court...

And, I have no idea how they will rule, though I would lean towards their reversing the 4th Circuit...

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