Argument Recap

Earlier this month, the Federal Circuit heard oral argument in Frantzis v. McDonough, a case we have been following because it attracted an amicus brief. In this case, the Federal Circuit is reviewing 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 hearing before the Board member who ultimately decides the administrative appeal. Judges Moore, Clevenger, and Chen heard the argument. This is our argument recap.

Robert C. Brown, Jr. arguing for Louis R. Frantzis. Brown began by arguing the main issue is the propriety and legality “of switching a judge within the administrative process at the Board of Veterans Appeals.” In reviewing the statute’s language, one judge suggested the statute is silent on whether there should be a hearing and whether the person who decides the case must be present at that hearing. The judge, after discussing how Congress previously repealed a provision that expressly required the person conducting the hearing to determine the case, asked why the court “shouldn’t accept Congress’s choice” to remove the requirement. Brown responded by pointing out the new statute does not say “the Board can switch a judge,” but instead “provides alternative venues and methods for providing hearings.” Additionally, he argued, the statute’s language does not contradict another provision, which “still requires that the member or panel assigned to the proceeding shall make the determination.” 

The argument turned to the Board’s decision not to consider the “fair process” doctrine. One judge asked why the Board “would have no discretion” not to reach an issue Frantzis didn’t raise. In response, Brown pointed to Supreme Court case law indicating “the court is not limited to the particular legal theories advanced by the parties, but rather retains an independent power to identify and apply the proper construction of the governing law.” He argued that, because the outcome of the case “produced precedent,” the Board “should not have exercised discretion to not hear that argument.” 

Mark R. Lippman argued on behalf of the amici Vietnam Veterans of America. He began by suggesting it is “pretty clear that not every omission” in a statute “represents a purposeful [attempt] to exclude what was omitted.” He encouraged the court not to find purposeful omission here “without looking at legislative history” and “prominent textual clues throughout the statute.” Lippman contended the statute’s purpose is to promote efficiency within Veterans Affairs, not to “compromise or eliminate core procedural rights” of veterans. In response, one judge nevertheless suggested that Congress may have intended to eliminate this specific requirement for efficiency. 

Turning to the “fair process” argument, a judge asked why due process does not address Frantzis’s “core procedural fairness” concerns. Lippman responded by arging the lower court has previously held that fair process “goes further.” Another judge asked if Lippman was arguing that, “whatever the fair process doctrine is, this particular panel . . . abused its discretion by refusing to consider it.” Lippman responded affirmatively, expressing concern over how the lower court’s opinion may impact thousands of claimants “based upon a dubious assertion of waiver.” 

Borislav Kushnir argued for the Secretary of Veterans Affairs. He began by asserting that the text, structure, and “statutory history” demonstrate that the updated statute no longer requires the same Board member to conduct a hearing and issue a decision in the same case. One judge suggested removing the same-judge requirement may remove “a very significant beneficial right,” and further suggested the legislative history is silent on why the requirement was removed. The judge pointed to a separate statutory provision, which affords the right to the same judge to “legacy veterans,” and asked why it is not arbitrary and capricious and a violation of the Equal Protection Clause for the law to provide that benefit to one class of veteran but not others. Kushnir responded that “legacy appeals continue to enjoy that same Board requirement” because the change in law did not apply to them. 

The argument turned to the fair process doctrine. One judge asked Kushnir to explain the doctrine, “because if it’s part of the legal inquiry of statutory interpretation” it cannot be waived. Kushnir explained the government’s view that the doctrine is a “substantive doctrine,” which is an “extra-statutory and . . . extra-constitutional” right that is not usually applied through a statutory interpretation canon. A judge later asked whether waiver may be foreclosed based on “the fact that the Veterans’ Court expressly asked Frantzis to come and address” the doctrine. The government argued there is “no case suggesting that.” 

In rebuttal, Brown contended there is relevant precedent of the Federal Circuit that reaches the application of the fair process doctrine. One judge responded that, in the opinion in question, the Federal Circuit “basically made the fair process doctrine coextensive with the due process clause.” 

We will continue monitoring this case and report on developments.