Today the Federal Circuit sua sponte granted en banc rehearing in a veterans case, Francway v. Wilkie. Beyond granting rehearing, the en banc court also withdrew a previously issued precedential opinion in this case and issued a new precedential opinion replacing it.
In the new opinion, the en banc court responded to the argument that the “presumption of competency” used in reviewing the opinions of Department of Veterans Affairs (“VA”) medical examiners conflicts with the VA’s statutory duty to assist veterans and the statutory benefit-of-the-doubt rule used in veterans cases when the evidence is in approximate equipoise.
The en banc court overruled its caselaw to the extent that caselaw is inconsistent with merely requiring veterans to raise the issue of the competency of medical examiners, and it noted that “the requirement that the veteran raise the issue of the competency of the medical examiner is best referred to simply as a ‘requirement’ and not a ‘presumption of competency.'”
Notably, the en banc court had previously denied a prior petition for hearing en banc. Then, in the court’s panel opinion (vacated today by the en banc court), the panel explained that it would not seek an en banc hearing to overturn the court’s precedent on the presumption of competency, Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009):
Francway first contends that the presumption of competency is inconsistent with the VA’s duty to assist veterans, see 38 U.S.C. § 5103A (requiring the VA to assist veterans with benefit claims), and the benefit-of-the-doubt rule, id. § 5107(b) (requiring the VA to give the benefit of the doubt to the veteran when the evidence is in approximate equipoise), and that there is no statutory basis for the presumption. We construe Francway’s continued argument as to the illegitimacy of the presumption as a request for the panel to ask for an en banc hearing under Federal Circuit Rule 35 to overturn Rizzo and subsequent cases. We decline to do so. We see no reason for en banc review since the “presumption of competency” is far narrower than Francway asserts and is not inconsistent with the statutory scheme.
(emphasis added)
In a footnote in the middle of this language, the panel had quoted Federal Circuit Rule 35(a), which states:
Although only the court en banc may overrule a binding precedent, a party may argue, in its brief and oral argument, to overrule a binding precedent without petitioning for hearing en banc. The panel will decide whether to ask the regular active judges to consider hearing the case en banc.”
While the panel indicated it declined to ask the regular active judges to consider hearing the case en banc, today the en banc court nevertheless granted rehearing. It did so “for the limited purpose of deleting [this] footnote . . . and accompanying text from the previous precedential opinion and replacing it with a new en banc footnote 1.”
In the new opinion issued today, the court summarizes the same argument being made by Francway about inconsistency between the presumption of competency and the relevant statutory provisions. But then, rather than construe the argument as a request for the panel to ask for en banc hearing, the opinion rejects the argument on the merits:
Francway first contends that the presumption of competency is inconsistent with the VA’s duty to assist veterans, see 38 U.S.C. § 5103A (requiring the VA to assist veterans with benefit claims), and the benefit-of-the-doubt rule, id. § 5107(b) (requiring the VA to give the benefit of the doubt to the veteran when the evidence is in approximate equipoise), and that there is no statutory basis for the presumption. We see no inconsistency since the “presumption of competency” is far narrower than Francway asserts and is not inconsistent with the statutory scheme.
(emphasis added)
The new footnote added by the en banc court now appears at the end of this paragraph. In it the en banc court notably overrules Rizzo (and another case) “to the extent that the decision here is inconsistent” with them, and then notes that “the requirement that the veteran raise the issue of the competency of the medical examiner is best referred to simply as a ‘requirement’ and not a ‘presumption of competency'”:
The en banc court formed of PROST, Chief Judge, NEWMAN, LOURIE, DYK, MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN, HUGHES, and STOLL, Circuit Judges, has determined that to the extent that the decision here is inconsistent with Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), and Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010), those cases are overruled. We note that in the future, the requirement that the veteran raise the issue of the competency of the medical examiner is best referred to simply as a “requirement” and not a “presumption of competency.”
The en banc court seems to recognize a real problem if it were to apply a presumption of competency of VA medical examiners when veterans challenge their competency. It seems to be saying that it will not apply any such presumption in this case or in other cases going forward. But the court is highlighting that it is still a requirement to challenge the competency of VA medical examiners, and if a veteran does not challenge a VA medical examiner based on competency then the Federal Circuit will find a waiver of the issue. Indeed, later in today’s replacement opinion the court notes that “[t]he presumption of competency requires nothing more than is required for veteran claimants in other contexts—simply a requirement that the veteran raise the issue.”
In short, this appears to be a circumstance of the Federal Circuit seeking to clean up language (if not analyses) used in prior cases when dealing with the question of the competency of VA medical examiners.