Drama in the Fed: Tension Over Procedural Rule, Vet. Disability

By William Peacock, Esq. on February 07, 2014 | Last updated on March 21, 2019

Circuit Court procedures often are so complex that they seem arbitrary. A senior judge can hear a case, but he can't vote on en banc rehearing. He can dissent from a panel rehearing denial, but not an en banc rehearing denial. He can sit on the en banc panel but can't vote or dissent on granting the rehearing.

If that sounds confusing, welcome to the party. Senior Judge Plager was equally confused, and irritated, and expressed as much in a footnote to his dissent, calling the original decision and judge-created rule for determining disability levels for veterans a "miscarriage of justice."

The controversial rule, by the way, clarifies which disability rating applies to veterans, arguably conflicts with applicable regulations, and should lead to more unfavorable rulings for veterans seeking disability benefits.

Middleton v. Shinseki: All or Nothing on Vet. Disability Ratings

Veterans' disability ratings are often far from clear. A claimant may meet most, but not all criteria for a higher disability rating, sometimes having symptoms not listed by the rating criteria. As Judge Newman noted in her dissent, the applicable regulations provide a bit of leeway to the claimant:

Per 38 C.F.R. §4.7: Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.

Other regulations provide that "atypical" instances, which do not meet all of the listed criteria, may exist, and that "reasonable doubt ... regarding the degree of disability ... will be resolved in favor of the claimant."

In other words, when it's reasonable doubt, the veteran gets the higher rating. Instead, the Federal Circuit panel held:

[T]here is no question as to which evaluation shall be applied when a veteran does not satisfy all of the required criteria of the higher rating but does satisfy all of the criteria of the lower rating.

They are right -- there should be no question. It should be the higher rating, given that benefit of the doubt regulation. Unfortunately, the majority's rule is all-or-nothing: all of the criteria for a higher rating, or the lower rating applies.

Judge Newman doesn't like it. And Senior Judge Prager, a dissenting member of the original panel really doesn't like it, nor does he care for the intricacies of court procedure.

Senior Judges on the Panel Can Sit En Banc, Can't Vote on En Banc, Can't Dissent ...

As a member of the original panel, Senior Judge Prager can sit in on an en banc rehearing, if granted. He cannot, however, vote on granting an en banc rehearing, nor can he dissent from an en banc denial. This procedural oddity led to a footnote, expressing his distaste for the rule:

[J]udges in senior status, of which I am one, are prohibited from joining another judge's dissent from a denial of en banc, or authoring their own dissent ... This apparently is the rule even in this case, though as a member of the original panel I am expressly authorized by law to have sat on the en banc panel... [T]he failure to take the case en banc has denied me an opportunity to try to correct what I consider to be a miscarriage of justice. However, my compliance with this rule, prohibiting circuit judges, because they are in senior status, from expressing an opinion on this aspect of the decisional work of the court, should not be taken as agreement with this rule, its purpose, effect, or for that matter its constitutionality.

He's angry, and probably correct regarding the miscarriage of justice. As PatentlyO notes, he was able to dissent from the denial of the panel rehearing, so the impact of the odd rule was minimal.

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