Cook v. Wilkie
Opinion
The Secretary of Veterans Affairs ("the Secretary" or "VA") appeals from the decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") vacating the decision of the Board of Veterans' Appeals ("Board") and remanding for the Board to grant Appellee Warren B. Cook an additional hearing.
Cook v. Snyder
,
I. BACKGROUND
In the Veterans' Judicial Review Act, Congress codified a veteran's longstanding right to a Board hearing. Under the provision at issue, "[t]he Board
shall decide any appeal
only after affording the appellant
an opportunity for a hearing
."
The Veterans Court agreed with Cook. Its decision details the factual and procedural history of Cook's case.
Decision
,
A.
Cook served on active duty in the Navy from 1972 to 1973.
Cook again appealed to the Board and requested an additional hearing to present further evidence.
On remand, Cook again requested another Board hearing to "present[ ] additional evidence in the form of [his] testimony."
Decision
,
Cook appealed to the Veterans Court, arguing that the Board violated his constitutional due process rights by denying his request for a further hearing. The Veterans Court referred the case to a three-judge panel and requested supplemental briefing on whether any statute or regulation entitled Cook to a Board hearing on remand when a Board hearing had already been provided.
B.
In its decision now on appeal, the Veterans Court considered the question of statutory interpretation at issue under the framework applied in
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
,
Considering the plain meaning of § 7107(b), the Veterans Court concluded that the Secretary's interpretation lacked such power. The phrase "an opportunity for a hearing," according to the court, did not resolve the parties' dispute because the indefinite articles "a" and "an" may mean "one" or "any," depending on context. Id. at 340-41. Nor did the language of § 7107(b) as a whole. Although the Veterans Court considered the phrase "shall decide any appeal" to somewhat favor Cook's interpretation as "it suggests that the Board must provide a hearing each or any time an appeal is before it for a decision," the court also observed that the statute did not clearly contemplate multiple Board hearings upon request. Id. at 341.
The court therefore turned to the overall statutory scheme. This favored Cook's right to a post-remand Board hearing, the court reasoned, as the overall veterans' adjudicatory process is solicitous of veterans' claims. Id. at 342. As the focus of a veteran's claim may evolve over its lifetime, the court determined that construing § 7107(b) as providing only an entitlement to a single Board hearing "would be neither solicitous of a claimant nor productive of informed Board decisionmaking." Id. Furthermore, the Veterans Court noted that in these circumstances "any doubt in the interpretation of a VA statute must be resolved in favor of a veteran." Id. at 345.
Thus, the Veterans Court ultimately concluded that § 7107(b) entitles an appellant to an opportunity for a Board hearing following a vacatur and remand from the Veterans Court, even if that appellant was previously given a Board hearing in the case. Id. at 346. The court vacated the Board's decision and remanded for additional proceedings. The Secretary's appeal here followed.
II. DISCUSSION
A.
We have jurisdiction over appeals from the Veterans Court "with respect to the validity of a decision of the [Veterans] Court on ... any statute or regulation ... or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the [Veterans] Court in making the decision."
There is an exception to the finality rule that applies if the following conditions are met:
(1) there must have been a clear and final decision of a legal issue that ... will directly govern the remand proceedings ... ; (2) the resolution of the legal issues must adversely affect the party seeking review; and, (3) there must be a substantial risk that the decision would not survive a remand, i.e. , that the remand proceeding may moot the issue.
Williams
,
Both the Secretary and Cook agree that the decision of the Veterans Court satisfies each condition, see Appellant's Br. 2-3; Appellee's Br. 1, with the Secretary arguing as follows. First, the court decided a legal question of statutory interpretation that will "directly govern" the remand proceedings by requiring the Board to give Cook an opportunity for a hearing. Second, the court's construction of § 7107(b) adversely affects the agency by forcing it to reallocate resources to provide additional Board hearings for Cook and similarly situated appellants. Third, remanding and enforcing the Veterans Court's order would cause the Board to hold a hearing, mooting the issue of whether Cook is entitled to a hearing on remand at all.
We agree with the parties that the exception to finality summarized in Williams squarely applies to this appeal: (1) the Veterans Court's interpretation of § 7107(b) would directly govern the remand proceedings by requiring the Board to hold a hearing; (2) that interpretation adversely affects the agency by forcing it to divert resources to hold more hearings, contrary to the Secretary's wishes; and (3) waiting for the remand and Board hearing would moot the issue of whether such a hearing is required.
Consequently, we conclude that we have jurisdiction over the legal question concerning the Veterans Court's interpretation of § 7107(b).
B.
We review the Veterans Court's statutory interpretation
de novo
.
DeLaRosa v. Peake
,
The Secretary argues that § 7107(b) does not entitle a claimant to a Board hearing after remand from the Veterans Court if the Board has already given the claimant a hearing earlier in the case. According to the Secretary, the word "appeal" only refers to the submission of certain forms for the Board's initial review and does not encompass subsequent adjudications on remand.
Cook responds that the plain language of § 7107(b) unambiguously entitles a *818 claimant to a Board hearing before the Board decides any appeal, including after a remand. Even if the statute is ambiguous, Cook argues that § 7107(b) should be interpreted in favor of a claimant's request for a post-remand hearing.
We agree with Cook that § 7107(b) entitles him to an opportunity for an additional Board hearing in these circumstances. As always, we begin with the text of the statute. Section 7107(b) reads as follows: "[t]he Board shall decide any appeal only after affording the appellant an opportunity for a hearing." Thus, before the Board "decide[s] any appeal," it must afford the appellant "an opportunity for a hearing."
We first address the phrase "decide any appeal." As the Supreme Court has recently observed, "the word 'any' naturally carries 'an expansive meaning.' "
SAS Inst., Inc. v. Iancu
, --- U.S. ----,
The next question is whether the Board decides an "appeal" when it again reviews an RO's decision following an order of the Veterans Court vacating and remanding the Board's prior decision. Again, the text supplies an answer. An appeal is "[a] proceeding undertaken to have a decision reconsidered by a higher authority; esp[ecially], the submission of a lower court's or agency's decision to a higher court for review and possible reversal." Appeal , Black's Law Dictionary (10th ed. 2014). Here, the Veterans Court vacated the Board's decision. This "nullif[ied] or cancel[led]" the decision, making it void. Vacate , Black's Law Dictionary (10th ed. 2014). As the Veterans Court voided the Board's prior decision, on remand the Board must review the RO's decision anew in accordance with the Veterans Court's instructions. In other words, the Board must again decide the appeal, or a "proceeding undertaken to have a decision reconsidered by a higher authority." Because the Board must decide the appeal on remand, we conclude that § 7107(b) requires the Board to afford the appellant an opportunity for another hearing. 2
The Secretary does not dispute the ordinary meaning of "appeal," but emphasizes interpreting an appeal as "the
submission
of a lower court's or agency's decision to a higher court for review and possible reversal."
Appeal
, Black's Law Dictionary (10th ed. 2014) (emphasis added). That aspect of an appeal, the Secretary contends, is consistent
*819
with the agency's own regulation defining an "appeal" as consisting of "a timely filed Notice of Disagreement ... and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal."
In sum, the text of § 7107(b) better supports Cook's argument that the Board must provide a claimant an opportunity for a hearing before it decides every appeal, including after remand from the Veterans Court. We therefore affirm the Veterans Court's decision.
CONCLUSION
We have considered the Secretary's remaining arguments but find them unpersuasive. For the foregoing reasons, we affirm the decision of the Veterans Court.
AFFIRMED
Congress has recently amended this provision,
see
Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, § 2(t),
We do not hold that all remand orders from the Veterans Court to the Board necessarily trigger the opportunity for a hearing requirement of § 7107(b). Certain ministerial remands, for example, may not require the Board to decide an appeal.
Reference
- Full Case Name
- Warren B. COOK, Claimant-Appellee v. Robert WILKIE, Secretary of Veterans Affairs, Respondent-Appellant
- Cited By
- 14 cases
- Status
- Published