Last week, the Federal Circuit heard oral argument in four cases that attracted amicus briefs. In one of those cases, Euzebio v. Wilkie, the court heard arguments concerning the following veterans law issues: (1) whether “[t]he Veterans Court’s ‘direct relationship’ requirement is an erroneous legal standard for determining what facts are before the Board;” (2) whether “the Veterans Court erred in holding that it lacks the legal authority to look at relevant facts known to the agency for purposes of reviewing the Board’s decision;” and (3) whether “the Veterans Court misinterpreted the scope of VA’s duty to assist when it affirmed VA’s failure to develop the record with relevant facts concededly known to the agency.” This is our argument recap.
Zachary M. Stolz argued for the appellant. First, he argued that the Veterans Court erred because the Board knew about a relevant report, called the NAS report. Judge Taranto immediately interrupted him to ask “how do we know that?” Judge Taranto explained that, “when I look at the Board’s opinion, . . . I don’t see any reference to the 2014 report.” Stolz responded that there are “two places” to look. First, he pointed to a particular page of the appendix where he said “the Board references the NAS report.” Second, he argued this point was conceded below at the Court of Appeals for Veterans’ Claims.
Judge Taranto, however, pressed him on both points. According to Judge Taranto, “it is one thing to say . . . the particular Board judges who are writing this [opinion] actually knew about it, [but] it is another thing to say that somewhere in this mammoth agency is this report along with lots of other things.”
Stolz responded by arguing the “Veterans Court should have asked if the VA had knowledge of the NAS report, and [VA] did—it had actual knowledge.” The right question, Stolz contended, is really whether “the report contains relevant information supporting an indication that Mr. Euzebio’s thyroid condition is related to agent orange exposure.” Furthermore, Stolz argued, “a direct relationship is not required, and that is the Veterans Court’s specific error here; the veterans court required a stronger connection than the law requires.”
Martin F. Hockey, Jr. argued for the Secretary of Veterans Affairs. Hockey began by addressing the points Stolz made. In particular, he responded to the question posed by Judge Taranto to Stolz about “whether or not this report was before this Board.” According to Hockey, “the answer is no, and it is clear on appendix [page] 8 where the court identified that ‘the appellant does not assert, nor does the record reflect, that he submitted the 2015 update to the Board, nor considered it in relation to it.’” Further, Hockey asserted, there is “no evidence on this record that the particular Board judge here did” have knowledge.
Judge Wallach then posed a question: “Wouldn’t any competent Board member be aware of it?” Hockey responded: “I can’t respond to that; it is a 2014 report, [and] it is currently being reviewed by folks within VA who are charged with looking at that information—those are not the Board judges.”
Judge O’Malley pressed Hockey on this point: “Wait,” she said, “the whole Board–their job–is analysis of veterans’ claims, and this report has not only been with the Agency but has been the subject of much litigation, as have much of agent orange issues.” Hockey responded by noting that the 2014 report “is not designed to inform Board judges; it is designed to inform Agency regulation people, the other side [of the agency].”
O’Malley seemed unpersuaded. She responded: “The rule you are proposing is not simply one that says, maybe if this comprehensive report didn’t get there in time for this particular Board to analyze it, we shouldn’t find that it was in their constructive possession.” Judge O’Malley argued that “the rule you are proposing is that these kinds of things would never be in [their constructive possession], so that, even if the Board and the Agency have reviewed these things multiple times in the past, . . . you can’t say that this particular Board had constructive possession of it.”
Judge Wallach then asked several questions: “How does your argument square with the Veterans Court’s authority to take judicial notice of adjudicative and legislative facts?” “What happens if there are intervening facts?” And “does the Board have to rest on a legal fiction and ignore those things?” According to Hockey, “our position is that adjudicative facts are not the kinds of things that judges take judicial notice of; rather, it is the more broader facts of which these facts are not included.”
In rebuttal, Stolz made a brief concluding argument. First, he stated he was “heartened by Mr. Hockey’s presentation because the daylight between us is not as far as the initial Secretary’s brief had me believe coming into this oral argument.” According to Stolz, “it does appear that we agree [the] direct relationship test is no good, [which is what] the CAVC used.” Further, Stolz contended, “if the NAS report was before the Department of VA, it contains relevant information giving an indication that Mr. Euzebio’s thyroid condition was related to agent orange exposure in service.” Stolz concluded that “this case needs to be remanded back to the CAVC.”
We will keep track of this case and report on its disposition.