SCOTUS: Harmful error can't be presumed veterans' cases

The Supreme Court reversed, by a vote of 6-3, the Federal Circuit’s holding that the failure of the Veterans Administration (VA) to provide a required notice should be presumed to be prejudicial.

The Court put the burden on the veteran to demonstrate that the failure to inform the veteran regarding the required evidence was not harmless. The Court said that it was inappropriate to apply a presumption of harm when the VA fails to provide adequate notice regarding the evidence needed for an appeal. The Court emphasized the need for “case-specific application of judgment,” though it approved the use of generalizations about the “natural effects” of certain kinds of errors, as long as there was no mandatory presumption. Justice Breyer wrote for the Court, joined by all the Court’s conservative members. Justices Souter, Stevens and Ginsburg dissented. Shinseki v. Sanders, --- S.Ct. ----, 2009 WL 1045952 (Apr. 21, 2009) (No. 07–1209).

 

The petitioners in Sanders and a consolidated case were denied benefits, and claimed that the VA failed in its statutory notice duties. The VA must tell claimants what information they need to substantiate their claims, what information the VA will provide, and what information the claimant must provide. 38 U. S. C.  § 5103(a). The law instructs the Veterans Court to “take due account of the rule of prejudicial error.” §7261(b)(2). The Federal Circuit, which reviews all such cases, applied an automatic presumption that such notice errors are harmful, and required the VA to rebut that presumption.

 

In shifting the burden to the veteran, the Supreme Court framed the VA statute as similar to other civil statutes.  The Supreme Court held that the veterans’ statute required “the same kind of ‘harmless-error’ rule that courts ordinarily apply in civil cases.” The Court noted that the same “prejudicial error” language appears in the Administrative Procedure Act (APA), and that the law’s legislative history showed it was intended to have the same standard as the APA. Furthermore, the Court said the Federal Circuit’s framework was not consistent with APA-style harmless error analysis.

          The Court said it found three flaws with the Federal Circuit’s approach. First, it was too rigid and complex. Instead of being based on individual facts, the Court said, this framework employed technical presumptions that would lead to findings of harm where that was no harm. Second, the approach placed unreasonable burdens on the VA. According to the Court, it might be impossible for the VA to prove the nonexistence of evidence that would help the claimant, or to prove the claimant’s state of mind. The approach therefore “encourages abuse of the judicial process and diminishes the public’s confidence in the fair and effective operation of the judicial system.” Third, the Court said it is well-established that the burden of showing harm should normally rest with the person challenging a decision, because they “will likely be in a position at least as good as, and often better than, the opposing party” to establish harm. The Court said it had only held otherwise in criminal cases.

 

          The Court qualified its holding, however, by reaffirming that “courts may sometimes make empirically based generalizations about what kinds of errors are likely, as a factual matter, to prove harmful.” See Kotteakos v. United States, 328 U. S. 750, 760 (1946). By drawing on the court’s own experience that reveals such “natural effects,” the majority said, a court “might properly influence, though not control, future determinations.” In the context of veterans benefits, the Court said these trends are for the Veterans Court, rather than the Federal Circuit, to consider, due to the limited factual review in these cases. More generally, however, this qualification is significant because it should be applicable to harmful error analysis in other contexts as well.

 

          Additionally, the Court said that courts’ traditional “special solicitude for the veterans’ cause,” the VA’s special duty to veterans, and the non-adversarial nature of the claims process, “might lead a reviewing court to consider harmful in a veteran’s case error that it might consider harmless in other circumstances.”

 

          The Court reversed the Federal Circuit in Sanders’s case, saying it was clear that the VA’s failure to state what information it would provide was harmless, in light of Sanders’s six-decade-long dispute over an eye injury allegedly caused in World War II. In the other case, Shinseki v. Simmons, the Court said it was not clear whether the VA’s failure to state what information Simmons needed for her claim was harmful, and remanded for further consideration by the Veterans Court.

 

          In dissent, Justice Souter emphasized the uniqueness of the veteran’s statute and the “congressional policy of favoring veterans.”  He argued that the allocation of the burden of proof should be different in different civil contexts, and that placing the burden of proof on veterans in benefits cases is unwarranted. “The VA,” he wrote, “differs from virtually every other agency” because its duty is to help the claimant develop his cases, and Congress’s clear choice in other statutory provisions to favor veterans in reviews of VA decisions. Accordingly, any ambiguity in the statute should be resolved in the veteran’s favor. Moreover, Souter said the Federal Circuit’s framework was neither rigid nor unworkable, as demonstrated by several cases in which the VA has succeeded in establishing harmless error.