No IN THE Supreme Court of the United States. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent.

Transcription

1 No IN THE Supreme Court of the United States ARNOLD J. PARKS, v. Petitioner, ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Federal Circuit BRIEF OF THE NATIONAL VETERANS LEGAL SERVICES PROGRAM AS AMICUS CURIAE IN SUPPORT OF PETITIONER BARTON F. STICHMAN AMY F. ODOM NATIONAL VETERANS ROBERT N. HOCHMAN* SIDLEY AUSTIN LLP One South Dearborn LEGAL SERVICES Chicago, IL PROGRAM (312) K Street, N.W. rhochman@sidley.com Washington, D.C JEFFREY T. GREEN SARAH O ROURKE SCHRUP NORTHWESTERN UNIVERSITY SUPREME COURT PRACTICUM JEFFREY S. BEELAERT JEREMY M. BYLUND SIDLEY AUSTIN LLP 1501 K Street, N.W. 375 East Chicago Ave. Washington, D.C Chicago, IL Counsel for Amicus Curiae February 12, 2014 * Counsel of Record

2 TABLE OF CONTENTS Page INTEREST OF AMICUS CURIAE... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 3 I. THE COURT SHOULD GRANT REVIEW TO ENSURE THAT CONGRESS S IN- TENT TO ESTABLISH A PRO- CLAIMANT VETERANS BENEFITS RE- GIME IS HONORED... 3 II. THE VA ADJUDICATION PROCESS FOR BENEFITS IS UNIQUELY PRO- CLAIMANT... 7 A. The Claims Process Is Inquisitorial... 8 B. Pro-Veteran Statutes And Regulations Do Not Require Issue Exhaustion III. VA PROCEEDINGS ARE MORE LIKE OTHER NON-ADVERSARIAL PROCEED- INGS AND VERY DIFFERENT FROM ADVERSARIAL PROCEEDINGS A. VA Proceedings Are Analogous To Non- Adversarial Proceedings B. VA Proceedings Are Markedly Different Than Adversarial Proceedings CONCLUSION (i)

3 ii TABLE OF AUTHORITIES Page(s) CASES Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136 (D.C. Cir. 2005) Allin v. Brown, 6 Vet. App. 207 (1994) Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005) Ballanger v. Johanns, 495 F.3d 866 (8th Cir. 2007)... 17, 18 Barrett v. Nicholson, 466 F.3d 1038 (Fed. Cir. 2006) Bobbitt v. Principi, 17 Vet. App. 547 (2004) Bolack Minerals Co. v. Norton, 370 F. Supp. 2d 161 (D.D.C. 2005) Brokowski v. Shinseki, 23 Vet. App. 79 (2009)... 9 Coal. for Gov t Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435 (6th Cir 2004)... 14, 15, 16, 18 Collaro v. West, 136 F.3d 1304 (Fed. Cir. 1998)... 4 Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002)... 9 Criswell v. Nicholson, 20 Vet. App. 501 (2006)... 8 Delano Farms Co. v. Cal. Table Grape Comm n, No. 07-cv-1610, 2010 WL (E.D. Cal. July 26, 2010) DeLisio v. Shinseki, 25 Vet. App. 45 (2011) 5 Delta Found., Inc. v. United States, 303 F.3d 551 (5th Cir. 2002) Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002)... 17, 18

4 iii TABLE OF AUTHORITIES continued Page(s) Donnellan v. Shinseki, 24 Vet. App. 167 (2010) Edwards v. Peake, 22 Vet. App. 57 (2008).. 12 Evans v. Shinseki, 25 Vet. App. 7 (2011) Fed. Mar. Comm n v. S.C. State Ports Auth., 535 U.S. 743 (2002)... 13, 17, 18 Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) (en banc), superseded on other grounds by statute, Veterans Benefits Act of 2002, Pub. L. No , 116 Stat , 13, 16 Gagnon v. Scarpelli, 411 U.S. 778 (1973) Gambill v. Shinseki, 576 F.3d 1307 (Fed. Cir. 2009)... 13, 15, 18, 19 Henderson v. Shinseki, 131 S. Ct (2011)... 4 Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998)... 4 Ledford v. West, 136 F.3d 776 (Fed. Cir. 1998) Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000)... 10, 12 Massie v. Shinseki, 25 Vet. App. 123 (2011), aff d, 724 F.3d 1325 (Fed. Cir. 2013)... 5 Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006)... 8 Myers v. Derwinksi, 1 Vet. App. 127 (1991) Ray v. Pickett, 734 F.2d 370 (8th Cir. 1984) Rivera v. Shinseki, 654 F.3d 1377 (Fed. Cir. 2011)... 10, 11

5 iv TABLE OF AUTHORITIES continued Page(s) Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001)... 9 Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000) Serra v. United States Gen. Servs. Admin., 664 F. Supp. 798 (S.D.N.Y. 1987) Shoffner v. Principi, 16 Vet. App. 208 (2002), aff d, 83 F. App x 336 (Fed. Cir. 2003) Simanski v. Sec y of Health & Human Servs., 671 F.3d 1368 (Fed. Cir. 2012) Sims v. Apfel, 530 U.S. 103 (2000)... 12, 15, 16 Vaught v. Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620 (9th Cir. 2008) Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010)... 9 Walters v. Nat l Ass n of Radiation Survivors, 473 U.S. 305 (1985)... 4, 7, 15, 19 Young v. Selsky, 41 F.3d 47 (2d Cir. 1994) STATUTES 38 U.S.C U.S.C U.S.C. 5103(a)(1) U.S.C. 5103A U.S.C U.S.C U.S.C. 5110(a) U.S.C , 10, 11

6 v TABLE OF AUTHORITIES continued Page(s) OTHER AUTHORITIES 38 C.F.R. 3.1(p) C.F.R , 10, C.F.R C.F.R C.F.R C.F.R C.F.R , 11 Challenges to Timely Processing Persist: Hearing on Veterans Disability Benefits Before the S. Comm. on Veterans Affairs, 113th Cong. (2013) (statement of Daniel Bertoni, Dir. Educ., Workforce, & Income Sec. Issues)... 6 History VA History, U.S. Dep t of Veterans Affairs, about_va/vahistory.asp (last updated Mar. 14, 2013)... 4 Steven Reiss & Matthew Tenner, Effects of Representation by Attorneys in Cases Before VA: The New Paternalism, 1 Veterans L. Rev. 2 (2009)... 9 U.S. Dep t of Veterans Affairs Bd. of Veterans Appeals, Report of the Chairman (2013) U.S. Gov t Accountability Office, GAO-13-89, Veterans Disability Benefits: Timely Processing Remains a Daunting Challenge (2012)... 6, 7

7 INTEREST OF AMICUS CURIAE The National Veterans Legal Services Program ( NVLSP ) is an independent nonprofit organization that has worked since 1980 to ensure that the United States government provides our nation s 25 million veterans and active duty personnel with the federal benefits they have earned through their service to our nation. 1 NVLSP has been instrumental in the passage of landmark veterans rights legislation, and it has successfully challenged unfair practices by the Department of Veterans Affairs ( VA ) that deprived veterans and their families of hundreds of millions of dollars in benefits. It also serves as a national support center that recruits, trains, and assists thousands of volunteer lawyers and veterans advocates. NVLSP publications provide veterans, their families, and their advocates with the information necessary to obtain the benefits to which they are entitled under the law. For more than ten years, NVLSP has published the Veterans Benefits Manual, which has become the leading guide for advocates and attorneys who help veterans and their families obtain benefits from the VA. In addition, and of particular relevance here, NVLSP is a veterans service organization recognized 1 Pursuant to Supreme Court Rule 37.6, amicus curiae states that no counsel for any party authored this brief in whole or in part and that no entity or person, aside from amicus curiae, their members, and counsel, made any monetary contribution towards the preparation and submission of this brief. Petitioner Arnold J. Parks filed a blanket consent to the filing of amicus curiae briefs, which was docketed on January 16, Respondent Eric K. Shinseki consented to NVLSP s filing in a letter dated January 29, 2014, which is on file with the clerk s office.

8 2 by the Secretary of Veterans Affairs under 38 U.S.C to assist veterans in the preparation, presentation, and prosecution of claims for benefits before the VA. In this capacity, NVLSP has directly represented thousands of veterans in proceedings before the VA, the Board of Veterans Appeals, and the Court of Appeals for Veterans Claims. NVLSP also represents veterans in federal courts, where most of its efforts focus on impact litigation, cases that, if successful, will benefit large groups of veterans and their families. NVLSP has frequently appeared as amicus curiae before the United States Supreme Court and the federal courts of appeals. Given this experience and expertise, NVLSP is well positioned to describe the adjudication of claims and the challenges faced by veterans presenting claims before the VA. As relevant here, NVLSP has an interest in protecting the rights of veterans, who were not represented by counsel before the agency, to raise arguments in the Veterans Court that were not raised during the non-adversarial and inquisitorial administrative proceedings before the Board. SUMMARY OF THE ARGUMENT 1. This Court should grant Mr. Parks s petition for writ of certiorari because the Federal Circuit s ruling is contrary to the pro-claimant regime established by Congress. In recent decades, veterans law has become increasingly complex and many veterans are unable to navigate the system by themselves. As a result, they often rely on help from the VA in pursuing their claims. The decision below creates a trap for unwary veterans by denying them the opportunity to obtain the benefits that they deserve. If allowed to stand, it will cost individual veterans thousands of dollars in benefits to which they are lawfully entitled.

9 3 2. The statutes and regulations governing the veterans benefits regime do not require issue exhaustion. To the contrary, they are expressly pro-veteran and claimant-friendly. The adjudication process is inquisitorial, not adversarial, and the VA is charged with aiding veterans to obtain benefits. It may come as no surprise, given the nature of the VA claims process, that the Federal Circuit s decision conflicts with this Court s precedent in Sims v. Apfel, 530 U.S. 103 (2000). The Court should grant this petition to correct this injustice before more veterans unfairly lose the benefits they deserve. 3. When compared with other administrative procedures, it is clear that the veterans benefits process is non-adversarial. The VA process has all of the hallmarks of a non-adversarial system including informality, an inquisitorial hearing structure, an agency that is directed to aid claimants in pursuing their claims, and other attributes that distinguish it from traditional litigation models. When compared with traditional, adversarial proceedings, it is clear that issue exhaustion should not apply. ARGUMENT I. THE COURT SHOULD GRANT REVIEW TO ENSURE THAT CONGRESS S INTENT TO ESTABLISH A PRO-CLAIMANT VETERANS BENEFITS REGIME IS HONORED This case is of critical importance to the millions of veterans and their families who receive benefits from the VA. The Federal Circuit s issue exhaustion ruling is contrary to the pro-claimant regime established by Congress and will be detrimental to veterans seeking the benefits they legally deserve.

10 4 The United States has a long history of providing benefits to veterans that traces its roots back to the Plymouth Colony. History VA History, U.S. Dep t of Veterans Affairs, history.asp (last updated Mar. 14, 2013). That tradition continued after the Revolutionary War: Congress began providing veterans pensions in early 1789, and after every conflict in which the nation has been involved Congress has, in the words of Abraham Lincoln, provided for him who has borne the battle, and his widow and his orphan. The VA was created by Congress in 1930, and since that time has been responsible for administering the congressional program for veterans benefits. Walters v. Nat l Ass n of Radiation Survivors, 473 U.S. 305, 309 (1985). Importantly, the process of applying for, and appealing denials of, benefits has always been proclaimant. See, e.g., Henderson v. Shinseki, 131 S. Ct. 1197, 1205 (2011) ( The solicitude of Congress for veterans is of long standing ) (quoting United States v. Oregon, 366 U.S. 643, 647 (1961)). The statutes governing veterans benefits are strongly and uniquely pro-claimant. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). The adjudication process is intended to be a nonadversarial, ex parte, paternalistic system. Collaro v. West, 136 F.3d 1304, (Fed. Cir. 1998). It is the antithesis of an adversarial, formalistic dispute resolving apparatus. Forshey v. Principi, 284 F.3d 1335, 1360 (Fed. Cir. 2002) (en banc), superseded on other grounds by statute, Veterans Benefits Act of 2002, Pub. L. No , 402, 116 Stat. 2820, 2832.

11 5 While the system is meant to be pro-claimant, there is a growing concern among judges and commentators that veterans law is becoming so complex that veterans rights are not being vindicated. As one judge noted: There is an unfortunate and not entirely unfounded belief that veterans law is becoming too complex for the thousands of regional office adjudicators that must apply the rules on the front lines in over a million cases per year. DeLisio v. Shinseki, 25 Vet. App. 45, 63 (2011) (Lance, J., concurring). Imposing an issue exhaustion rule fit for an adversarial process on top of this already increasingly complex system will undermine the pro-veteran regime that Congress established. Veterans are particularly vulnerable to being trapped by administrative rules like issue exhaustion. Most disabled veterans do not have the resources, expertise, or patience to effectively navigate the pro-claimant process that is available to them. Many claimants rely on the VA s duty to assist, only to be forced to appeal a Regional Office ( RO ) denial of a claim to the Board of Veterans Appeals ( Board ), or to the Court of Appeals for Veterans Claims ( Veterans Court ) to obtain a remand that compels the RO to finally provide the assistance the veteran was entitled to years earlier when the claim was first filed. These veterans are forced to endure the VA s slow-moving hamster-wheel, Massie v. Shinseki, 25 Vet. App. 123, 128 (2011) (quoting Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting), aff d, 724 F.3d 1325 (Fed. Cir. 2013)), the unflattering name used by many to describe the frustrating process by which a claim is repeatedly appealed up and remanded back between the RO, the Board, and the Veterans Court before the award is finally made.

12 6 Years-long delays in the award of benefits have become all too common. Adding to this delay is the well-documented backlog of cases. In recent years, VA s claims processing production has not kept pace with the increase in incoming claims. U.S. Gov t Accountability Office, GAO , Veterans Disability Benefits: Timely Processing Remains a Daunting Challenge 9 (2012). Veterans must wait years for the Board to issue a decision on an appeal from an adverse benefits determination. See id. at 7-8. A rule that veterans waive the right to raise an issue at the Veterans Court because they failed to raise it below would transform an already unjustifiable delay in the award of benefits into the outright denial of benefits due. Unless there was some other error in the Board s decision, the Veterans Court would affirm the Board s denial of benefits. Although veterans could still file a reopened claim, if the VA granted the reopened claim, the effective date for the award would be no earlier than the date that the reopened claim was filed. See 38 U.S.C. 5110(a). On the other hand, a rule allowing claimants to raise new issues at the Veterans Court level, without first raising them below, means that if the veteran ultimately prevails on the claim, the effective date of the award would be the date that the VA received the claim that was appealed to the Court. The latter outcome is consistent with the pro-claimant nature of the veterans benefits regime. The number of veterans that could be harmed by the Federal Circuit s ruling is staggering. In fiscal year 2013, the VA estimated it would provide $59.6 billion in compensation benefits to nearly 4 million veterans. Challenges to Timely Processing Persist: Hearing on Veterans Disability Benefits Before the S.

13 7 Comm. on Veterans Affairs, 113th Cong. 1 (2013) (statement of Daniel Bertoni, Dir. Educ., Workforce, & Income Sec. Issues). Furthermore, the wars in Iraq and Afghanistan have led to a new wave of claims for VA benefits. In recent years, the VA has received more than 1 million new claims each year. GAO-13-89, supra, at 9. In 2012, the Board issued 44,300 decisions, and attorneys represented veterans in only 4,354 cases. U.S. Dep t of Veterans Affairs Bd. of Veterans Appeals, Report of the Chairman 23 (2013). In more than 90% of the cases (39,946 cases), veterans were not represented by an attorney, even though thousands of dollars in benefits were at stake. See id. If issue exhaustion is imposed, these veterans may unknowingly risk losing benefits they deserve. II. THE VA ADJUDICATION PROCESS FOR BENEFITS IS UNIQUELY PRO-CLAIMANT The lower court s decision ignores the nature of the VA adjudicative process and how it favors veterans. The plain text of VA regulations and statutes do not require issue exhaustion. A detailed look at the process shows that the veterans benefits scheme is designed to be inquisitorial and non-adversarial. Indeed, it is hard to imagine how the process could be more claimant-friendly. See Walters, 473 U.S. at 311 ( The process is designed to function throughout with a high degree of informality and solicitude for the claimant. ). As a result, imposing an issue exhaustion rule here conflicts with this Court s decision in Sims, which provides a framework for determining when issue exhaustion is inappropriate in an administrative process and rejects imposing exhaustion on a proclaimant, inquisitorial process like the one at issue here.

14 8 A. The Claims Process Is Inquisitorial The VA provides monthly compensation to veterans with service-connected disabilities. 38 U.S.C (for injuries incurred in the line of duty during wartime); id (during peacetime). To obtain this compensation, a qualified veteran first files a claim at one of the VA s 57 regional offices. Formality is not required; an informal written communication that conveys an intent to apply for benefits will suffice. 38 C.F.R. 3.1(p); see also id (a)(3) (defining a [s]ubstantially complete claim as one that identifies the benefit sought and any medical condition(s) on which it is based ); Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006) (veteran must show some intent to apply for benefits). When the VA receives a claim, it has a duty to assist the veteran in obtaining evidence to substantiate it. 38 U.S.C. 5103A(a). The VA must obtain, for example, all relevant records that are in the custody of a federal agency or department, including military records from the Department of Defense or records from the Social Security Administration. Id. 5103A(c); 38 C.F.R (c)(2). Federal agencies have an affirmative duty to provide such information to the VA, 38 U.S.C. 5106, but the duty to assist extends beyond the federal agencies. For instance, if there are treatment or other medical records maintained by private doctors or clinics that are relevant to the claim, the VA must make reasonable efforts to obtain them as well. Id. 5103A(b); 38 C.F.R (c)(1). Once the veteran s application for a claim is complete or substantially complete, the VA has a duty to notify the claimant of any other information that is necessary to substantiate the claim before it makes a decision on the claim. 38 U.S.C. 5103(a)(1); May-

15 9 field v. Nicholson, 444 F.3d 1328, (Fed. Cir. 2006). This preadjudicatory notice should inform the veteran that he must provide additional information or that he should ask the VA to obtain additional information about, for example, the increased severity of a disability and how it has affected the veteran s employment and daily life. Vazquez-Flores v. Shinseki, 24 Vet. App. 94, (2010). The VA is obligated to consider not only the claims specifically identified by the veteran, but also all other benefits to which a veteran might be entitled based on the evidence. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). In other words, the VA must fully and sympathetically develop a veteran s claim to its optimum before reaching the claim on its merits. 2 Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (citing Hodge, 155 F.3d at When developing a claim to its optimum, the VA must determine all potential claims raised by the evidence, applying all relevant laws and regulations.... Cook v. Principi, 318 F.3d 1334, 1347 (Fed. Cir. 2002) (quoting Roberson, 251 F.3d at 1384). When the VA makes a decision regarding the veteran s benefits claim, it must provide notice of the decision, including an explanation of how to seek review. 38 U.S.C. 5104(a). If the VA denies the benefit sought, it must also explain the reasons for its decision and provide a summary of the evidence that it considered. Id. 5104(b). After notice of the denial, the veteran may request a rehearing at the regional office level. 38 U.S.C. 7105; 38 C.F.R (a). 2 For more on the genesis of this duty, see generally Steven Reiss & Matthew Tenner, Effects of Representation by Attorneys in Cases Before the VA: The New Paternalism, 1 Veterans L. Rev. 2 (2009).

16 10 The veteran may appear, either alone or with a representative, at a hearing, which is ex parte because the government has an obligation to assist and because it is in its interest to grant every benefit that can be supported in law C.F.R (a). The hearing officer must explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant s position. Id (c)(2). And the formal rules of evidence do not apply the veteran may introduce any evidence that he or she considers material. Id. B. Pro-Veteran Statutes And Regulations Do Not Require Issue Exhaustion Much like the claims process, the appeals process favors veterans. To appeal an adverse decision from the regional office to the Board, the veteran files a notice of disagreement within one year of the adverse decision. 38 C.F.R There is no requirement for special wording, id , and legal reasoning for the disagreement need not appear in the notice, Ledford v. West, 136 F.3d 776, 780 (Fed. Cir. 1998). In response, the regional office prepares a statement of the case, which serves as the VA s official explanation for denying the claim. Rivera v. Shinseki, 654 F.3d 1377, 1381 (Fed. Cir. 2011). The statement is [also] meant to assist the veteran in gaining every benefit that can be supported in law. Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). When the VA sends its statement of the case to the veteran, it includes a copy of VA Form 9, which is the one-page form that the veteran uses to file a substantive appeal to the Board. 38 C.F.R The veteran perfect[s] the appeal by completing and returning this form, id , which puts the VA on notice because the veteran must clearly identify the

17 11 benefits being appealed. 38 U.S.C. 7105(d)(3). Even though the statute suggests that the veteran should set out specific allegations of error of fact or law, id., it does not prescribe a particular format for the veteran s appeal or a particular degree of specificity that must be provided. Rivera, 654 F.3d at Of course, the veteran must provide some indication... that he wishes to raise a particular issue, but the statement need not be express or highly detailed, Allin v. Brown, 6 Vet. App. 207, 213 (1994), because the Board is required to address all issues reasonably raised on appeal, even if the issue might not be directly raised in the veteran s appellate filings when read in isolation. Rivera, 654 F.3d at 1380 (citing Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009)). The regulation suggests, [t]o the extent feasible, the veteran should frame his or her arguments based on the VA s statement of the case. 38 C.F.R But even that is not mandatory because the VA will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal. Id. Indeed, the Board has a duty to read the documents that a claimant files in support of his appeal liberally and sympathetically in deciding if the claimant has sufficiently alleged an error of fact or law. Rivera, 654 F.3d at And the Board has a duty to consider the full context within which [a claimant s] submissions are made.... Id. at 1382; see also Evans v. Shinseki, 25 Vet. App. 7, 13 (2011) ( the Board is directed to assume the affirmative obligation of construing the arguments in a liberal (pro-veteran) manner. ). The VA is not free to ignore this duty the Board must review all issues which are reasonably raised from a liberal reading of the appellant s substantive appeal. Myers v. Derwinksi, 1 Vet. App. 127, (1991);

18 12 see also Schroeder v. West, 212 F.3d 1265, (Fed. Cir. 2000). The decision below imposes a particularly harsh rule because the Veterans Court actually has jurisdiction to consider any issue advanced in support of the appeal, even if the issue is raised for the first time before the court. Maggitt, 202 F.3d at 1377; see also, e.g., Shoffner v. Principi, 16 Vet. App. 208 (2002) (reviewing and deciding on the merits an issue never raised by the claimant at the Board level), aff d, 83 F. App x 336 (Fed. Cir. 2003). And the Veterans Court may also raise and consider new issues sua sponte. See, e.g., Donnellan v. Shinseki, 24 Vet. App. 167 (2010); Edwards v. Peake, 22 Vet. App. 57 (2008). Given these liberal, pro-veteran rules and the fact that neither the statute nor applicable regulations require issue exhaustion, it would be unfair to impose it judicially without notice to the veterans. Indeed, this Court has previously ruled that issue exhaustion has no place in a non-adversarial administrative regime like the one at issue here. In Sims, the Court held that issue exhaustion does not apply to Social Security claimants even after claimants have properly exhausted their administrative claims. 530 U.S. at 112. The Court noted that issue exhaustion is largely a creature of statute. Id. at 107. Yet, even when there is no issue exhaustion requirement in the statute or rule, courts have nevertheless sometimes applied it as a prudential rule. In Sims, however, the Court held that the nature of Social Security proceedings was more inquisitorial and less adversarial, that parties were not represented by counsel, that the proceedings were informal, and thus there should be no prudential issue exhaustion requirement. Id. at 111. Those features of the Social Security process all apply with even greater force in

19 13 the VA administrative process. There is no reason to treat the two administrative review regimes differently. III. VA PROCEEDINGS ARE MORE LIKE OTHER NON-ADVERSARIAL PROCEED- INGS AND VERY DIFFERENT FROM AD- VERSARIAL PROCEEDINGS Though there are differences in the precise procedures, administrative hearings generally fall into one of two categories, which reflect not only their overall procedural characteristics, but also their ultimate goals vis-à-vis a claimant s case. Non-adversarial administrative hearings are essentially meant to assist the claimant in his or her case. Gambill v. Shinseki, 576 F.3d 1307, (Fed. Cir. 2009). These proceedings do not mirror the traditional adversarial process and relationship between parties that exist in typical litigation. The types of procedures that adhere in these hearings are meant to allow the agency to ultimately resolve the claimant s issues, rather than adjudicate claims for the claimant as against the agency. Forshey, 284 F.3d at On the other hand, adversarial administrative hearings contain procedures that mirror adversarial litigation in front of Article III courts. Fed. Mar. Comm n v. S.C. State Ports Auth., 535 U.S. 743, (2002). These hearings are adjudicative: they are meant to resolve differences between a claimant and the particular agency in question and their adversarial qualities further that purpose. A review of different administrative proceedings reveals that VA proceedings comfortably fall within the category of nonadversarial proceedings (like the Social Security proceedings in Sims), rather than adversarial proceedings, where an issue exhaustion rule would be more appropriate.

20 14 A. VA Proceedings Are Analogous To Non- Adversarial Proceedings The adversarial/non-adversarial test finds its origin in the context of determining whether government officials are protected by immunity. Courts have, for example, found the following non-adversarial: hearings before the General Services Administration, Serra v. United States Gen. Servs. Admin., 664 F. Supp. 798, 803 (S.D.N.Y. 1987), disciplinary hearings before the Department of Correction Services, Young v. Selsky, 41 F.3d 47, (2d Cir. 1994), and submissions of a parole officer s parole violation report, Ray v. Pickett, 734 F.2d 370, 373 (8th Cir. 1984). The patent examination process is also non-adversarial based, in part, on the fact that the proceedings are ex parte. Delano Farms Co. v. Cal. Table Grape Comm n, No. 07-cv-1610, 2010 WL , at *7-8 (E.D. Cal. July 26, 2010). When describing what makes a proceeding nonadversarial, courts look to both the investigatory process and ultimate purpose of the system. For example, cases for compensation under the Vaccine Act are non-adversarial. Simanski v. Sec y of Health & Human Servs., 671 F.3d 1368, 1380 (Fed. Cir. 2012) (concluding that waiver was inappropriate at an informal proceeding with flexible and informal standards for admissible evidence). Hearings before the Board of Directors of Federal Prison Industries are also non-adversarial. Coal. for Gov t Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, (6th Cir 2004). Like in Simanski, the court explained that the proceedings were informal. In addition, the court focused on the fact that the administrative law judge ( ALJ ) develops arguments both for and against granting appellant relief; that the government has no representative in front of the ALJ; that filing briefs

21 15 by parties is allowed but not required; that the ALJ has power to review cases without applicant s approval; that the ALJ has exclusive authority to solicit and question a party or parties; and that the ALJ dominates the proceedings. Id. at Like the proceedings outlined above, proceedings before the Board are inherently non-adversarial. Andrews v. Nicholson, 421 F.3d 1278, 1283 (Fed. Cir. 2005). The veteran benefits system including the handling of claims before the Board is specifically designed as pro-claimant. Walters, 473 U.S. at 324 n.11; Bobbitt v. Principi, 17 Vet. App. 547, 551 (2004). The VA s role in Board proceedings is essentially to act on behalf of the claimant in the resolution of his or her claims. Tellingly, the VA does not appear as a party to the Board proceedings. Sims, 530 U.S. at 111. Veterans like Mr. Parks may also appear without counsel. See Gagnon v. Scarpelli, 411 U.S. 778, 789 (1973) (lack of representation by counsel is indicative of non-adversarial proceedings). Indeed, veterans often rely on the VA s sympathetic and investigatory role as well as its mandate to give claimants the full benefit of any reasonable doubt when presenting and developing claims. Gambill, 576 F.3d at In non-adversarial proceedings, such as those before the Board, it is incumbent upon the VA s hearing official and not the claimant to develop the arguments both for and against granting the relief sought by the claimant. Robinson, 557 F.3d at 1362; see also 38 C.F.R (c). Comparison with Social Security benefits hearings proves particularly instructive. Proceedings before the Social Security Appeals Council are nonadversarial for the same reasons as those before the Board. Like claimants before the Board, claimants in Social Security cases bring a claim to the Social Secu-

22 16 rity Administration in order to collect benefits to which they believe they are statutorily entitled. Sims, 530 U.S. at And the agency s purpose is to investigate whether and to what extent the claimants meet the criteria to collect all available benefits. Id. In this regard, as in Board proceedings, the agency s role is to fully investigate the claims, and assist the claimant in finding relevant information and fully developing the record. Rather than oppose the claimant, as in a traditional adversarial relationship, the agency essentially acts on behalf of the claimant at the same time that it ultimately decides the merits of the claim. The inquisitorial rather than strictly adjudicatory nature of the proceedings is a hallmark of nonadversarial administrative action. Id. at ; see also Forshey, 284 F.3d at 1360 (Mayer, J. & Newman, J., dissenting) ( [T]he veterans system is constructed as the antithesis of an adversarial, formalistic dispute resolving apparatus. It is entirely inquisitorial in the regional offices and at the Board of Veterans Appeals where facts are developed and reviewed. ). It is because of this predominantly fact-finding, rather than litigious, quality of agency proceedings that this and other courts have found issue exhaustion inappropriate in non-adversarial contexts. See, e.g., Sims, 530 U.S. at 112; Vaught v. Scottsdale Healthcare Corp. Health Plan, 546 F.3d 620, 631 (9th Cir. 2008) ( issue exhaustion is not applicable in the ERISA context ); Coal. for Gov t Procurement, 365 F.3d at 465. B. VA Proceedings Are Markedly Different Than Adversarial Proceedings Comparing VA proceedings to adversarial proceedings reinforces the conclusion that VA proceedings are non-adversarial. Contrary to a proceeding before

23 17 the Board, an adversarial administrative action bears significant resemblance to regular civil or criminal litigation. Fed. Mar. Comm n, 535 U.S. at ; Ballanger v. Johanns, 495 F.3d 866, 870 (8th Cir. 2007); Detroit Free Press v. Ashcroft, 303 F.3d 681, 699 (6th Cir. 2002). Both the claimant and the agency are parties to the dispute, and both are often represented by trained and qualified counsel. Delta Found., Inc. v. United States, 303 F.3d 551, (5th Cir. 2002). Moreover, in an adversarial context, the agency acts in opposition to the claimant, rather than solely as an inquisitorial body meant to assist the claimant in developing his case. Instead of acting as a neutral fact-finder, the agency advocates its own position and interests. Bolack Minerals Co. v. Norton, 370 F. Supp. 2d 161, 169 (D.D.C. 2005). Moreover, the agency body adjudicating the claim has no obligation to advise the parties as to potential and available remedies that they have not already brought to the adjudicator s attention. Detroit Free Press, 303 F.3d at 699. Another fundamental characteristic of adversarial administrative hearings is that they are inherently less claimant-friendly. Both claimant and agency bear the burden to establish the record, Ballanger, 495 F.3d at , and the opposing parties must present their respective positions to the adjudicator. Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136, (D.C. Cir. 2005). When presenting a claim before the agency s adjudicatory body, the burden is on the claimant to establish erroneous agency action by a preponderance of evidence. Ballanger, 495 F.3d at 870. Further, parties before the adjudicatory body are required to adhere more closely to formal rules of evidence, id.,

24 18 and any ex parte communications are generally prohibited, id. at 869. There are, moreover, stringent procedural requirements as well as penalties for failing to follow those requirements not present in informal nonadversarial administrative actions. Adversarial proceedings generally begin with a complaint-like document that must contain sufficient information to put the opposing party (usually the agency) on notice of the charge against it, Detroit Free Press, 303 F.3d at 698; Coal. for Gov t Procurement, 365 F.3d at 461, and personal service of the complaint on the opposing party is required, Detroit Free Press, 303 F.3d at 698. The parties to the action can subpoena witnesses, conduct interrogatories, request the production of documents, and make binding information requests on the opposing party similar to that found in typical discovery practice. Fed. Mar. Comm n, 535 U.S. at 758. As in traditional adversarial discovery practice, failure to meet discovery requests can subject a party to sanctions, including the entering of a default judgment. Id. Proceedings before the Board lack any of the hallmarks of adversarial systems that are designed to require parties to prove their claims. Indeed, Congress expressly created a pro-claimant system it fully intend[ed] to maintain a beneficial non-adversarial system of veterans benefits. Gambill, 576 F.3d at (quoting H.R. Rep. No , at 13 (1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5795). In the VA system, there is no room for such adversarial concepts that would unduly hinder the veteran claimant. Id. As such, as in typical non-adversarial proceedings, proceedings in front of the Board generally occur ex parte, Walters, 473 U.S. at 309, and eschew typical trial-court elements such as cross ex-

25 19 amination, best evidence rule, hearsay evidence exclusion, or strict adherence to burden of proof. Gambill, 576 F.3d at 1317 (quoting H.R. Rep. No , at 13 (1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5795); see also Walters, 473 U.S. at The alignment of government and claimant interests is perhaps the most fundamental difference between non-adversarial and adversarial proceedings. The government s interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them. Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. Cir. 2006) (citing Campbell v. United States, 365 U.S. 85, 96 (1961)). By design, purpose, and process, proceedings before the Board exist squarely in the realm of non-adversarial proceedings. An issue exhaustion rule, like that applied by the Federal Circuit in this case, has no place in such a system.

26 20 CONCLUSION For the foregoing reasons, this Court should grant the petition for certiorari. Respectfully submitted, BARTON F. STICHMAN AMY F. ODOM NATIONAL VETERANS ROBERT N. HOCHMAN* SIDLEY AUSTIN LLP One South Dearborn LEGAL SERVICES Chicago, IL PROGRAM (312) K Street, N.W. rhochman@sidley.com Washington, D.C JEFFREY T. GREEN SARAH O ROURKE SCHRUP NORTHWESTERN UNIVERSITY SUPREME COURT PRACTICUM JEFFREY S. BEELAERT JEREMY M. BYLUND SIDLEY AUSTIN LLP 1501 K Street, N.W. 375 East Chicago Ave. Washington, D.C Chicago, IL Counsel for Amicus Curiae February 12, 2014 * Counsel of Record