Argument Recap

Last week panels of the Federal Circuit heard oral arguments in two cases that attracted amicus briefs. In one, Lynch v. McDonough, Lynch asks the court to overrule Ortiz v. Principi, a case setting forth the burden of proof by which veterans must prove their claims. Chief Judge Prost and Circuit Judges Dyk and Clevenger heard the oral argument. This is our argument recap.

Mark Lippman argued for Lynch. He began by asserting that “the opinion in Ortiz v. Principi is fundamentally flawed and should be overturned by this Circuit’s en banc court.” According to Lippman, “Ortiz failed to give effect to the operative phrase ‘approximate balance’ and overlooked the relevant legislative and regulatory histories of . . . the [relevant] regulations.”

Chief Judge Prost intervened to ask Lippman how his argument applied to the particular facts of this case. In particular, she asked Lippman, “what would you say to get over what the fact finding was at the Board here?” In response, Lippman argued that “the veteran’s court misinterpreted and misapplied” the governing law.

Chief Judge Prost further questioned Lippman: “If your view of the statute is correct, as an alternative to Ortiz, how would that be applied in this circumstance?” According to Lippman, “if there is credible evidence on both sides of the evidentiary scale, then unless the evidence clearly and obviously weighs in favor of the government, the reasonable doubt rules should apply.”

Judge Dyk first interjected with a comment: “I don’t know how you get that out of the statute; that seems to me a reinterpretation of the statute to make it say something which it doesn’t say.” He then asked, “why isn’t the simple answer the one that is in the statute itself—that if there is an approximate balance, the veteran wins.” Moreover, he explained to Lippman that “you point out, perhaps correctly, that this equipoise notion is not all that this statute is about; that if there is an approximate balance, the veteran wins.” Judge Dyk ultimately asked, “why isn’t approximate balance satisfactory to you?”

Lippman responded that “it would be satisfactory as long as the court got rid of the preponderance of the evidence standard for the government.” He asserted that “that’s the problem.” He went on to explain that, under the court’s test, “the veteran has the burden of production.” According to Lippman, however, “once [the veteran] meets that burden, it goes into burden of persuasion for the merits, and, based on the benefit of the doubt rule, all the veteran has to prove on his burden of proof is approximate balance.”

The court then focused on trying better to understand Lippman’s exact position. Chief Judge Prost, for example, highlighted that Lippman “started off by saying ‘if the veteran puts forth credible evidence and the government puts forth credible evidence,'” but, she went on, “I don’t know what that means; I don’t know if that means would be equal, somewhat equal, [or] really not equal.” She explained that “fact finders do weighing of the evidence all the time, [and] it helps you that the government has to make some sort of affirmative showing.” But, she asked, “how do you apply approximate balance; what are you suggesting?” In response, Lippman argued that “the appellant would be happy with the approximate balance terminology for defining the veteran’s burden of proof.” Lippman explained, however, that “the government’s side the preponderance of the evidence standard has to go.”

Evan Wisser argued for the Secretary of Veterans Affairs. Wisser began by contending that “Mr. Lynch’s argument here is the same one the court rejected in Ortiz 20 years ago.”

Judge Dyk quickly intervened for clarification on the Secretary’s position. In particular, Judge Dyk asked Wisser whether he “thought . . . that some clarification of Ortiz would be useful.” In response, Wisser stated that “there is no disagreement there.” He went on to say that “the Ortiz opinion did not establish an equipoise standard,” and “if you actually review the Ortiz opinion, the language that it uses, it is in the balance portion that the equipoise could come into play.”

At this point Judge Clevenger explained his thoughts and concerns about the case. He stated that “it is clear to me Mr. Lippman, on behalf of his client, and all of us agree that approximate balance is the test, not equipoise; we should probably write an opinion that anyone requiring equipoise is wrong.” He, however, went on to say that “clearly that is not the problem in all these veterans cases; the problem in all these veterans cases is that, if the Secretary can show by a preponderance of the evidence that his side is right, then it cannot go to the veteran.” According to Judge Clevenger, “Mr. Lippman could not be more clear that [his position is that] we recommend to the en banc court that we get rid of the preponderance of the evidence as a game-winner for the VA.” Judge Clevenger went on to explain his understanding that “preponderance of the evidence is just equipoise plus peppercorn,” and the panel is “bound by Ortiz.”

In response, Wisser stated that he “agree[d] with virtually everything Judge Clevenger just said, except for the statement that preponderance of the evidence is just equipoise plus a peppercorn.” According to Wisser, “that it is not exactly how the Ortiz court construed the language, and that is where there is perhaps some tension.” Moreover, he explained, “under a plain language interpretation of the statute, which is what Ortiz engaged in, . . . whatever meaning Congress could have intended under the phrase approximate balance, it is simply illogical to say that a given set of evidence can be both approximate balance while also preponderance in favor of one party over the other.”

According to Wisser, the statute “states clearly that the claimant has the responsibility to present support for benefits of any kind.” Further, Wisser explained, “it would have been very odd for Congress to have, on the first subsection, confirmed that the claimant has the responsibility to present and support a claim for benefits, and on the second subsection create, without any clear textual indication, that that responsibility is satisfied by a set of evidence where the persuasive value of the evidence weighs against a claim.” Wisser argued that these are “two distinct legal concepts.”

Judge Prost asked Wisser for his response to Lippman’s position that he’d be happy with the test being approximate balance. Wisser responded that the government’s “position is that there is no better way, and no more reasonable way, to interpret the statute than the way that Ortiz did.” Wisser added that “approximate balance means that there is some relative equality of the evidence, [and] that is not amenable to a strict mathematical formula that is weighed in favor of either party by preponderance of evidence.” According to Wisser, “that, by pure logic and legal definition, it is not approximate balance, and therefore, the benefit of the doubt rule does not apply.”

In rebuttal, Lippman began by arguing that the court has “to determine what the law or interpretation existed of the benefit of the doubt or reasonable doubt at the time of the Veterans Judicial Review Act of 1988, which is the touchstone for determining of the reasonable doubt rule.”

At the conclusion of the oral argument, Judge Clevenger noted how he thought this case would need to be taken up en banc by the Federal Circuit. He explained to Lippman that “what you are really asking this court [to do] is to overrule Ortiz.” Indeed, he said, “most of this discussion belongs in a brief . . . seeking an en banc rehearing.” That said, he asserted, “it is useful as a precursor for two judges to think about the en banc consequences of this case.”

We will report on the Federal Circuit’s disposition of this case.