In 2010, the CAVC held that hearing officers at the Board of Veterans’ Appeals had the same obligations as hearing officers at the VA regional offices to provide claimants with information that would help support their appeals. Bryant v. Shinseki, 23 Vet.App. 488 (2010). In 2011, VA issued a rule eliminating the due process and appellate rights that had been the subject of Bryant. The rule was issued without the appropriate notice-and-comment rulemaking procedure, in violation of the Administrative Procedures Act (APA).
The National Organization of Veterans’ Advocates (NOVA) challenged the rule at the Federal Circuit, and VA admitted that it had violated the APA in promulgating it. However, VA continued to apply the 2011 rule even after assuring the Court that it would not do so. The Court then approved a “Plan” “to identify and rectify harms caused by the VA’s wrongful misconduct” that required VA to provide notice to every claimant who had a Board hearing and received a final Board decision that did not grant full relief during the relevant period. VA would identify the cases using search terms that included any reference to § 3.103 or Bryant. In situations where the Board decision had already been appealed, the plan required VA to offer a JMR. In cases that had been appealed and decided, the plan required VA to offer a joint motion to recall mandate and a JMR.
In Mr. Smith’s case, he received a Board denial during the relevant period. The Board did not apply the invalid 2011 rule in its decision, but it did cite § 3.103 and Bryant. On appeal to the CAVC, Mr. Smith argued that the Board erred by failing to apply 38 C.F.R. § 3.156(c) – a regulation that was not at issue in the NOVA case and not implicated by the Plan. However, because the Board mentioned § 3.103 and Bryant, its decision fit the search terms and triggered VA’s obligation to offer a joint motion to recall the CAVC’s judgment and a JMR.
In the JMR, the parties recognized that the Board did not apply the invalid rule – and actually applied the correct rule as stated in Bryant. Nevertheless, the parties agreed to the JMR to further the Federal Circuit’s “goal” of assuring that veterans are not denied benefits as a result of procedural or due process violations – “regardless of whether actual prejudice is apparent.”
The CAVC denied both joint motions, stating that the parties had not demonstrated good cause as it was “clear on the face of the Board’s decision that the Board cited and applied the correct law and not the invalid 2011 Rule” – and the parties admitted as much in their JMR.
On appeal to the Federal Circuit, Mr. Smith characterized the Plan as a “settlement agreement,” and argued that the CAVC failed to “enforce” it. The Federal Circuit disagreed, holding:
The Plan does not require that the Veterans Court grant every single joint motion filed pursuant to the Plan merely because such a motion is proffered pursuant to the search terms used in the Plan. Neither the Plan nor our prior NOVA decisions purport to remove the Veterans Court’s ability to consider the merits of such motions or its discretion to grant or deny them.
Because Mr. Smith did not “identify any breached provision of the Plan that the Veterans Court somehow failed to enforce,” the Federal Circuit found no error in the CAVC’s decision. The Plan required VA to offer a joint motion “when the conditions specified in the Plan were met.” There was nothing in the Plan or the prior litigation that required the CAVC to automatically grant every joint motion “simply because such a motion was proffered.”