Argument Preview

This week we are previewing two cases being argued next week at the Federal Circuit that attracted amicus briefs. Today we highlight a veterans case, Lynch v. McDonough. In this case, Lynch asks the Federal Circuit to overrule its decision in Ortiz v. Principi, a case that sets forth the burden of proof by which veterans must prove their claims. This is our argument preview.

Lynch, a veteran, urges the court in his corrected opening brief “to overrule its three-judge panel decision in Ortiz” and find that “Ortiz was clearly wrongly decided.” According to Lynch, Ortiz misinterpreted “38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102 by setting forth an equipo[i]se-of-the-evidence standard for veterans to prove their claims and a corresponding preponderance-of-the-evidence-standard for the secretary to disprove them.” In this regard, Lynch argues two primary points.

First, Lynch asserts that Ortiz wrongly “focused on the word approximate, the adjective modifying the noun phrase, balance of positive and negative evidence of 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102 (the benefit-of-the-doubt and reasonable doubt rules, respectively).” In particular, Lynch argues “Congress chose—and the Secretary adopted without modification—the more generous term approximate balance to define the appropriate standard of proof.” Therefore, according to Lynch, “[b]y purposefully modifying the phrase balance of the positive and negative evidence with the adjective approximate, Congress envisioned a standard of proof lower than equipoise-of-the-evidence for veterans, and conversely, higher than preponderance-of-the-evidence for the Department.”

Second, Lynch argues that, “[t]extual considerations aside, the legislative and regulatory histories of 5107(b) and 3.102 demonstrate that they were meant to have broad applicability in VA adjudication, certainly broader than that afforded by the equipoise-of-the- evidence and preponderance-of-the-evidence standards invoked in Ortiz.”

In conclusion, Lynch urges the court to overrule Ortiz and apply the correct standard of proof in this case. According to Lynch, “if the Board and the Veterans Court had applied the correct standard of proof in this case, Mr. Lynch’s claim for an increased rating for PTSD in excess of thirty (30) percent would have had a much better chance of success.”

In its response brief, the Secretary urges the court to “affirm the decision on appeal.” In this regard, the Secretary argues two primary points.

First, according to the Secretary, “Lynch’s argument that Ortiz misinterpreted section 5107(b) (benefit of the doubt rule) is based on a misreading of the decision itself.” Instead of Lynch’s position that Ortiz created a strict standard, the Secretary urges the court to find that Ortiz merely “held that section 5107(b) does not apply where the evidence preponderates either for or against a claim for benefits.” Accordingly, the Secretary argues the court’s “holding was consistent with the plain language of the statute, the ordinary meaning of the words employed by Congress, and the logical proposition that evidence on a decision cannot simultaneously be too close to call and probably favor one outcome over another.”

Second, the Secretary contends that “Lynch has failed to overcome the presumption in favor of adhering to prior precedent, particularly involving non-constitutional issues, and he has not demonstrated why the Court should revisit its decision.” In particular, the Secretary argues, “Ortiz did not involve any constitutional issues,” and “Lynch has not asserted that the decision (or the application thereof) has somehow infringed upon his rights.” Additionally, the Secretary asserts that Lynch “has neither established any flaws in the foundation of Ortiz, nor has he shown the decision to be unworkable in its application, factors which weigh against overturning prior precedent.” Moreover, according to the Secretary, “the interpretation of section 5107(b) and the application of Ortiz have remained relatively uniform since the case was decided in 2001, and there have been no subsequent developments that have changed the legal landscape such that Ortiz is outdated or no longer viable.”

In his corrected reply brief, Lynch responds to the Secretary by making three points. First, Lynch contends that “Ortiz pays lip service to the modifier approximate, but its construction of 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102 effectively renders the term superfluous” by setting forth a preponderance-of-the-evidence standard for the agency to disprove VA claims. Second, Lynch asserts that “the Secretary does not dispute the ambiguity of the word approximate,” and therefore, “the Secretary ignores the pro-veteran canon resolving ambiguous provisions in favor of claimants.” Third, Lynch argues that “stare decisis has less force where, as here, an en banc court is asked to overturn one of its three-judge panel decisions.”

Two amicus briefs were filed in support of Lynch. Military-Veterans Advocacy Inc. filed an amicus brief arguing against Ortiz‘s allegedly flawed understanding of 38 U.S.C. § 5107(b). Military-Veterans Advocacy contends that “the Ortiz panel announced a rule that has been understood to apply only when there is an even balance of proof, and that has allowed the VA to defeat a claim by showing nothing more than a bare preponderance of evidence in its own favor.” According to Military-Veterans Advocacy, the “rule is contrary to the clear statutory text, particularly when read (as it must be) in light of Congress’s pro-veteran purpose.”

Swords to Plowshares and Connecticut Veterans Legal Center also filed an amicus brief. In it, the groups urge the court to take up the case en banc in order to overrule Ortiz. They argue that “the ‘benefit of the doubt’ standard of 38 U.S.C. § 5107 is consistent with Congress’s intent to favor veterans[,] [b]ut that standard has not been applied in line with its congressional purpose.” In particular, they contend that “the VA and the courts have whittled it down to nonexistence in all cases save that narrow set in which the VA finds the evidence for and against eligibility to be in perfect equilibrium—i.e., ‘equipoise.”

Oral argument will be heard on Thursday, April 8. We will keep track of this case and report on any developments.