Next Wednesday, the Supreme Court will hear oral argument in Bufkin v. McDonough, a veterans case decided by the Federal Circuit. The Supreme Court granted review to consider whether the Court of Appeals for Veterans Claims must “ensure that the benefit-of-the-doubt rule was properly applied during the claims process in order to satisfy 38 U.S.C. § 7261(b)(1),” which directs that court to “take due account” of the application of that rule. This is our argument preview.
In his opening merits brief, Bufkin makes two arguments. First, he argues that § 7261(b)(1) requires the Court of Appeals for Veterans Claims, referred to by the parties as the “Veterans Court,” to review the VA’s compliance with 38 U.S.C. § 5107(b). Second, he argues that the Federal Circuit’s reading of the statute is incorrect.
Bufkin’s first argument centers on the assertion that “Congress’s mandate to ‘take due account of the Secretary’s application of [§] 5107(b)'” in § 7261(b)(1) “means that the Veterans Court in every case must review VA’s compliance with . . . [§] 5107(b).” Bufkin argues that type of “review supplements the Veterans Court’s ordinary appellate responsibilities and differs from its clear-error review of VA fact finding.”
Bufkin maintains “Congress designed a system to affirmatively help veterans obtain all benefits they are entitled to by the law.” He asserts “Congress brought the same pro-claimant approach to bear when it provided for judicial review of adverse benefits decisions.” Thus, Bufkin contends, the “Veterans Court performs ordinary appellate review of any errors the veteran alleges, but “it also, crucially, gives an independent look to the benefit-of-the-doubt rule.”
According to Bufkin, § “7261 has two main components” that, together, “confer[] on the Veterans Court three interconnected responsibilities.” The first component is that, “like any court reviewing agency action, the Veterans Court must decide the issues a veteran raises on appeal.” The second component is that, in making those determinations, “the Veterans Court must also ‘review the record’ and consider the Secretary’s compliance with . . . [§] 5107(b)—evaluating whether the veteran received the benefit of the doubt on close questions.” Finally, “if the Veterans Court determines that there has been an error of one kind or another, it must determine the appropriate remedy,” “tak[ing] due account of the rule of prejudicial error,” and “apply[ing] the same kind of ‘harmless-error’ rule that courts ordinarily apply in civil cases.”
Bufkin asserts that the analysis of § 7261 “‘begins and ends with the text,'” with “‘[e]very clause and word’ . . . work[ing] together to confer a special obligation on the Veterans Court to review VA’s compliance with . . . [§] 5107(b) as part of every appeal.” Moreover, besides the text, Bufkin asserts the “statutory history and evidence of Congress’s intent . . . compel the same conclusion.” Moreover, he says, when “construing a statute construing veterans, ‘interpretive doubt is to be resolved in the veteran’s favor.'”
Bufkin’s second argument is that, “[c]ontrary to the text, structure, and origin of . . . [§] 7261, the Federal Circuit held that ‘the . . . command that the Veterans Court ‘take due account’ of the benefit of the doubt rule does not require the Veterans Court to conduct any review . . . beyond the clear error review required by § 7261[(a)(4)].'” Bufkin asserts the Federal Circuit’s “holding cannot be squared with the ‘cardinal principle’ of statutory interpretation that courts ‘must give effect, if possible, to every clause and word of a statute.'” He argues, moreover, that the Federal Circuit “misunderstood the nature of benefit-of-the-doubt review and wrongly believed it to be akin to reviewing VA’s factfinding.”
In his merits response brief, the Secretary of Veterans Affairs makes two arguments. First, he argues, the Veterans Court takes “due account” of the Secretary’s application of § 5107(b) by reviewing the Secretary’s approximate-balance determination for clear error. Second, he argues, the claimant must properly preserve a legal or factual challenge touching on the benefit-of-the-doubt rule.
Related to his first point, McDonough argues “the plain text of . . . [§ 7261(b)] thus makes clear that the account which is ‘due’ is an aspect of the review in . . . [§] 7261(a), not a freestanding inquiry.” He further asserts that § “7261(a), in turn, provides that factual findings are subject only to clear-error review—and the Secretary’s determination that the evidence on a particular issue is not in approximate balance is just such a factual finding.” He provides more detail:
The sort of reweighing that petitioners advocate would also be inconsistent with . . . [§ 7261] (c), which provides that “[i]n no event shall findings of fact made by the Secretary . . . be subject to trial de novo by the Court.” . . . Because the marshalling and weighing of evidence is a fundamentally factual task, . . . the Veterans Court’s performance of that task would effectively amount to such a trial de novo.
Related to his second point, that the claimant must properly preserve a legal or factual challenge touching on the benefit-of-the-doubt rule, McDonough argues § “7261(a) imposes on the scope of review under . . . [§] 7261(b)(1) . . . that the Veterans Court should make the determinations listed in . . . [§7261] (a) only ‘to the extent necessary to its decision and when presented.'” He contends that “the phrase ‘when presented’ makes clear that the Veterans Court must evaluate particular factual or legal aspects of the Secretary’s application of . . . [§] 5107(b) only to the extent that the claimant challenges the Secretary’s benefit-of-the-doubt analysis.”
In his reply brief, Bufkin argues that the government’s position “reduces the Veterans Court’s mandatory benefit-of-the-doubt review to ‘an aspect of’ the court’s review under . . . [§7261] (a).” He maintains this “rewrites” § 7261(b).” Bufkin further argues that the government’s “reading reduces” § 7261(b)(1) “to surplusage—effectively nullifying an important act of Congress—because it construes” § 7261] (b)(1) “to require nothing more than what is already provided for” in § 7261] (a).
Interested parties have submitted numerous amicus briefs to present their perspectives and arguments on this issues in this case. Five amicus briefs have been filed after the grant of certiorari. All five of these briefs support the petitioner:
- The National Law School Veterans Clinic Consortium filed an amicus brief in support of the petitioner. In this brief, the NLSVCC argues that “[a]pplying accepted principles of statutory construction to the plain text of . . . [§] 7261(b) would require the Veterans Court to analyze the rule of prejudicial error and the benefit-of-the-doubt rule in the same manner.” The NLSVCC further asserts that “[a]ny analysis of the agency’s application of the benefit-of-the-doubt rule that is less robust than the prejudicial-error analysis is contrary to the plain language and spirit of the statute.”
- Disabled American Veterans filed an amicus brief in support of the petitioner. DAV argues that “Congress equipped the Veterans Court with the tools for ensuring that the Board affords the benefit of the doubt to all veterans . . . [by] authoriz[ing] the Veterans Court to ‘take due account’ of the benefit-of-the-doubt rule, independent of its review of Board fact-finding.” According to DVA, “[t]his rule permits the Court to review whether the evidence before the Board as to a veteran’s exposure to herbicide agents was in ‘approximate balance’ without deference.”
- Military-Veterans Advocacy filed an amicus brief in support of the petitioner. MVA argues that “the Federal Circuit’s ruling that ‘the statutory command that the Veterans Court “take due account” of the benefit of the doubt rule does not require the Veterans Court to conduct any review of the benefit of the doubt issue beyond the clear error review required by § 7261[(a)(4)],’ . . . leaves the responsibility of the proper application of the benefit-of-doubt rule in the hands of the VA, an executive agency—not the judiciary.” The MVA asserts “the Veterans Court should resolve any question of law regarding proper application of the benefit of the doubt, in accordance with the pro-veteran presumption that Congress granted meaningful appellate review of whether a veteran actually received the benefit of the doubt.”
- The Federal Circuit Bar Association filed an amicus brief in support of the petitioner. The FCBA argues “the Veterans Court and the Federal Circuit applied . . . [§ 7261] in a manner that undermined its impact, interpreting the clear-error standard prescribed for review of factual findings to absolve the Veterans Court of any authority or obligation to independently assess the factual record in detail or to disturb any VA finding that had a ‘plausible basis.'” According to the FCBA, the Federal Circuit erred by assuming “that the same considerations normally constraining Article III courts from making independent empirical assessments of the agency record should extend to the Veterans Court,” and by misreading “§ 7261(c) as prohibiting the Veterans Court from reviewing the existing evidentiary record de novo for compliance with the benefit-of-the-doubt rule.”
- Finally, the National Veterans Legal Services Program filed an amicus brief in support of the petitioner. The NVLSP argues that Congress “requir[ed] the Veterans Court additionally to more broadly ‘review the record of proceedings before the Secretary and the Board,’ and ‘take due account of the Secretary’s application of’ the benefit-of-the-doubt rule.” The NVLSP asserts “the Veterans Court should review the Board’s application of the benefit-of-the-doubt rule as a conclusion of law, based on findings of fact,” because “[i]t is essential that the Veterans Court enforce the benefit-of-the-doubt rule as Congress mandated to ensure that veterans timely receive benefits that they have earned through their service.”
We will post a recap of the oral argument. As always, you can find all the relevant documents and all of our coverage of the case on our case page.