As we reported yesterday, five cases being argued in March at the Federal Circuit attracted amicus briefs. One of these cases is Frantzis v. McDonough. In it, the Federal Circuit will review a determination by the Court of Veteran Claims that, under the Veterans Appeals Improvement and Modernization Act, a claimant is not entitled to an opportunity for a Board hearing before the Board member who ultimately decides the administrative appeal. This is our argument preview.
In his opening brief, Louis R. Frantzis argues Congress did not include anything in the Veterans Appeals Improvement and Modernization Act that authorizes the Board of Veterans’ Appeals “to switch judges, so that one judge can hear the case at the hearing but a different judge makes the final determination.” Frantzis contends the Veteran Court erred by inferring that switching judges is allowed based on the “changes Congress made to 38 U.S.C § 7107,” when no changes were made to 38 U.S.C. § 7102. Additionally, he contends, the Veteran’s Court erred by refusing “to apply fair process to the outcome” of his case.
The Secretary of Veterans Affairs in his response brief argues Frantzis ignores “Congress’s revisions to Section 7107” and incorrectly argues the law continues to impose a “same board member” requirement on all cases. He asserts “Congress plainly removed” the requirement. He argues the Federal Circuit “must give the removal full force and effect” in order to avoid an absurd result. Additionally, McDonough contends, “[w]ithout a statutory hook,” Frantzis and the amici improperly “lean on the fair process doctrine,” which was only raised “late into litigation by the Veterans Court itself.” He argues the Veterans Court had the discretion to decide whether to apply the fair process doctrine. McDonough asks the court to affirm that his “interpretation of the relevant statutory provisions” is the “most natural and consistent reading.”
In his reply brief, Frantzis argues that McDonough incorrectly contends the Veterans Court had discretion to consider or not consider the fair process doctrine. He asserts Supreme Court precedent indicates “a court is permitted to follow authority that the court is aware of, even if it was not argued by the parties.” Additionally, Frantzis maintains, even if the Veterans Court had discretion, it abused it.
The National Law School Veteran’s Clinic Consortium and the Vietnam Veterans of America filed an amicus brief in support of the petitioner and reversal. They argue that the relevant statutory text and legislative history shows no intent by Congress to “compromise the fair process doctrine by eliminating the same judge requirement.” They contend the lower court erred by failing to consider the fair process doctrine.
Oral argument will be heard on Tuesday, March 5. We will continue to keep track of this case and report on any developments.