Oral Argument Recap: Peake v. Sanders

Stanford student Lisa Ehrlich discusses last Monday’s argument in No. 07-1209.  Additional information on the case is available on SCOTUSwiki, here.

Based on the briefs filed, the heart of the issue before the Court was which party should bear the burden of showing prejudice when the VA fails to provide the notice required by the VCAA. While the briefing focused largely on the statutory history and interpretation, at oral argument the Justices were most interested in how the veterans claims system actually works.

Assistant to the Solicitor General Eric Miller began with highlighting how the Veterans Court prejudicial errors statute is written in language essentially identical to that of the APA’s prejudicial error provision, which had a set meaning when Congress passed the Veterans’ statute. Chief Justice Roberts immediately pushed back on this interpretation, stating, “You basically have four cases in the courts of appeals to support that proposition, right?” While Mr. Miller attempted to explain his other evidence, the Justices moved onto their main focus, the actual functioning of the veterans claims system, and the different practical effects of notice errors and remands.

After some discussion between the Justices about whether “burden” was the proper term in an administrative proceeding, and how such a burden functioned, Justice Breyer seemed sympathetic to Mr. Miller’s position: “When I read this case, I thought the Veterans Affairs is absolutely common sense on this,” but implored him to provide a way to “get there legally.” Mr. Miller struggled for a bit, returning to the discussion of the meaning of burden, but then pointed out that he was simply asking for the veteran, by the time he or she got all the way to the Veterans Court, to be able to explain the effect of the error. He then went into a lengthy discussion of respondent Simmons’s history to illustrate how she received the information about evidence required when her claim was denied, and the steps she could have taken then to remedy it.

Justice Stevens pressed Mr. Miller on how many veterans were actually assisted by counsel during the proceedings, and at which stages, particularly when notice errors tend to happen. Mr. Miller conceded that most were not represented by counsel at the beginning, but were assisted by veterans’ service organizations such as the American Legion. Justice Souter then turned to a question about incentives, pointing out that placing the burden on the VA here would provide extra incentive to make sure veterans got the proper notice in the first place. Mr. Miller pushed back, stating they already had such incentives, but eventually conceded that there could be some extra motivation from the placement of the burden.

The respondents split their argument time, and Mr. Meade, arguing for respondent Simmons, went first. He actually made it through two of his three introductory points before Justice Alito questioned him on his assertion that under the government’s rule the veteran would need to engage in a speculative exercise, identifying what evidence would have been developed had the veteran been notified, and had he received the full assistance of the agency. If there is no chance of winning, what is the purpose of a remand? Mr. Meade stated that with a remand the veteran will have the opportunity, required by the notice statute, to go through the process of developing the case in conjunction with the VA, with all the information necessary to present his strongest claim produced in a collaborative manner with the agency from the beginning.

Justice Kennedy questioned the necessity of remand if the veteran finds out about the missing information at the next step, a hearing. Mr. Meade responded that a hearing only happens if the veteran requests it, and therefore is unsatisfactory as a remedy. Justice Breyer then questioned whether this issue would be imperative in many cases since the veteran will likely explain why the lack of notice was problematic anyway. Mr. Meade responded that presumptions are helpful to deal with the typical case, in which there is a first element notice error and the veteran does not even know what evidence he needs to put forward; the high likelihood of prejudice thus favors a general rule that the burden should be on the government. Mr. Meade concluded by reminding the Court that Congress had specifically set up the statute and notice requirements to help all veterans, not just those whose claims appeared meritorious on their face.

Mr. Lippman, arguing on behalf of respondent Sanders, began by returning to an earlier question of Justice Breyer, and distinguished O’Neal’s grave doubt standard by pointing to the lack of a complete record in veteran cases with notice errors. Justice Breyer pushed back, indicating that he agreed with the original Veterans Court holding that only first level notice errors should result in a presumption of prejudice, repeatedly stating that the Veterans Court had a much better understanding of the processes actually at issue than the Supreme Court, and perhaps they should defer to that interpretation. Mr. Lippman responded that putting in the extra evidence for why other notice errors were prejudicial would violate a statute forbidding the introduction of new evidence on the appeal.

Justice Alito responded that this appeared to be an argument for an irrefutable presumption of prejudice for the veteran, and Mr. Lippman turned back to the three possibilities of demonstrating prejudice set out by the Federal Circuit. He pointed out that the third prong allowed the government to prove there would not be any evidence that could prove the claim as a matter of law, which would not require the veteran to submit new evidence at the appellate stage. The argument ended with a short technical discussion of where the different level notice errors appeared in the statute and regulations.

In his rebuttal, Mr. Miller began with a point about the detailed statement of the case a veteran receives after he loses his claim, but was sidetracked by Justice Souter into a long colloquy of when the veteran first has the ability to retain counsel. Justice Souter stated the veteran may be hurt by the notice error, and never retain counsel after receiving the statement of the case, and therefore never receive benefits he may be entitled to. Mr. Miller ended with a plea to not overwhelm the already burdened Veterans Administration with non-meritorious remands.