Carpenter v. McDonough
| Decision Date | 09 July 2021 |
| Docket Number | 19-1137,19-1136 |
| Parties | KENNETH M. CARPENTER, APPELLANT, AND ROBERT V. CHISHOLM, APPELLANT, v. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, APPELLEE. |
| Court | United States Court of Appeals For Veterans Claims |
Argued November 17, 2020
On Appeal from the Board of Veterans' Appeals
Charles S. Dameron, of Washington, D.C., with whom Jay I Alexander, Daniel J. Farnoly, John Niles, and Barton F Stichman, all of Washington, D.C., were on the brief for the appellants.
Nathan P. Kirschner, of Washington, D.C., with whom William A Hudson, Jr., Acting General Counsel; Mary Ann Flynn, Chief Counsel; and Selket N. Cottle, Deputy Chief Counsel, all of Washington, D.C., were on the brief for the appellee.
Yelena Duterte of Chicago, Illinois, was on the brief for the National Law School Veterans Clinic Consortium as amicus curiae.
Before GREENBERG, MEREDITH, and FALVEY, Judges.
Kenneth M. Carpenter and Robert V. Chisholm are VA-accredited attorneys and principals in law firms that represent claimants before VA. Both firms employ paralegals. Not all the paralegals are VA-accredited. Mr. Carpenter's firm also employs non-paralegal support staff. None of the non-paralegal support staff are VA-accredited. For their non-VA-accredited paralegals and other non-VA-accredited staff, Mr. Carpenter and Mr. Chisholm both have requested remote, read-only access to automated VA claims records. Ultimately, in separate decisions, the Board of Veterans' Appeals denied Mr. Carpenter's unaccredited paralegals and staff and Mr. Chisholm's unaccredited paralegals remote, read-only access to automated VA claims records. Appellants through counsel appealed these decisions. They also filed an unopposed motion to consolidate, which the Court granted on May 31, 2019, and then consolidated the appeals under U.S. Vet. App. Docket Number 19-1136.
These appeals, which are timely and over which the Court has jurisdiction, see 38 U.S.C. §§ 7252(a), 7266(a), were referred to a panel of the Court, with oral argument, [1] to decide whether, in categorically barring non-VA-accredited paralegals and staff from remote, read-only access to the Veterans Benefits Management System (VBMS), [2] VA violates the note to 38 C.F.R. § 14.629. Because that note concerns access to Veterans Benefits Administration (VBA) automated claims records as described in 38 C.F.R. §§ 1.600-.603, we must consider whether the Court's interpretation of those regulations in Green v. McDonald, 28 Vet.App. 281, 290 (2016) (per curiam order), applies to these appeals, particularly considering changes in VA's technological landscape. We are also asked to decide whether VA's bar against remote access to VBMS for accredited attorneys' unaccredited paralegals and support staff violates 38 U.S.C. § 5904(a) and due process, and whether the addition to and omission from the appellants' claims files of some documents constitutes statutory and due process violations.
On February 24, 2021, the Court issued a panel decision affirming the Board decisions. On March 10, 2021, the appellants filed an unopposed motion to deconsolidate their cases because they had different views on how to proceed with their cases. In response to a Court order, on March 15, 2021, Mr. Carpenter stated that he intended to file a motion for reconsideration or en banc review, and Mr. Chisholm stated that he would not take further action on this matter in this Court or at the U.S. Court of Appeals for the Federal Circuit. The next day, the Court deconsolidated the cases, reopened Docket Number 19-1137, and included all docket entries made under Docket Number 19-1136 after May 31, 2019.
After Mr. Carpenter's motion for extension was granted, on May 3, 2021, he moved for panel reconsideration or en banc review. The Court will grant panel reconsideration under both Docket Numbers 19-1136 and 19-1137. See U.S. VET. APP. R. 2, 35. Though Mr. Chisholm does not wish to continue to pursue this matter and though we have deconsolidated these cases, for consistency-i.e., to avoid having two different precedential decisions on the same matter-we will grant Mr. Carpenter's motion for panel reconsideration and sua sponte grant panel reconsideration in Mr. Chisholm's case. Upon reconsideration, the Court will withdraw the February 24, 2021, panel decision and issue this panel decision in its stead. Because the February 2021 panel decision was issued under both appellants' names, this current decision will also be issued under both appellants' names, but the decision will be entered in both dockets rather than under just Docket Number 19-1136.
Returning to the merits, we find, as before, that because the regulations themselves- §§ 1.600-.603-have not changed since Green, the Court must follow the regulations' plain language and Green's analysis of that language. We therefore find that the regulations do not pertain to VBMS access. And the Federal Circuit's decision in Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021), which issued shortly after our February 2021 decision, does not change that determination. We also find that the appellants have not proved that they were prejudiced by the denial of VBMS access to their unaccredited paralegals and staff, such that they could not competently represent their clients. Nor have the appellants proved they are prejudiced by any alleged record deficiencies. Thus, we will affirm the Board's decisions.
In June 2016, Mr. Carpenter requested VBMS access for his unaccredited support staff and paralegals. Record (R.) at 366-67. In December 2016, VA denied the request. R. at 362-63. That same month, Mr. Carpenter filed a Notice of Disagreement (NOD). R. at 361 -62. After further proceedings, on October 31, 2018, the Board denied remote, read-only access to automated VA claims records for Mr. Carpenter's unaccredited paralegals and staff. R. at 2-13.
In November 2014, Mr. Chisholm asked a regional office to grant remote VBMS access to his unaccredited paralegals. R. at 628-30. VA did not act on the request and, in April 2015, Mr. Chisholm filed a petition with this Court. R. at 615-66. In September 2015, VA informed Mr. Chisholm of the basis for withholding access, but did not grant or deny the request. R. at 606-08. In October 2015, Mr. Chisholm responded and again requested access. R. at 667-70. In May 2016, VA accepted the October 2015 letter as a petition for rulemaking (under 5 U.S.C. § 553(e)) to revise 38 C.F.R. § 14.629 to allow VA to provide remote access to non-VA-accredited law firm support staff. R. at 588.
In September 2016, the Court partially granted Mr. Chisholm's petition, holding that "decisions regarding access to claims files are rendered pursuant to a law affecting the provision [of] veterans' benefits," and directing the Secretary to issue an appealable decision. Chisholm v. McDonald, 28 Vet.App. 240, 243 (2016) (per curiam order). In March 2017, the VBA denied Mr. Chisholm's unaccredited paralegals remote access. R. at 457. That same month, Mr. Chisholm filed an NOD. R. at 578-81. After further proceedings, on October 29, 2018, the Board denied Mr. Chisholm's unaccredited paralegals remote, read-only access to automated VBA claims records. R. at 369-82.
In the decisions on appeal, the Board determined that the appellants had not established that their non-VA-accredited paralegals and support staff were entitled to remote, read-only access to VA claims records. R. at 2, 370. The Board addressed the interplay between §§ 1.600-.603 and the note to § 14.629 and, relying on this Court's decision in Green, determined that the regulations do not apply to VBMS access. R. at 4, 372-73. The Board acknowledged that "[i]t is possible the assumptions and factual premises underl[y]ing the Court's decision in Green have changed[, ]" but stated that, "as currently written, the law does not compel the Secretary to grant . . . access." R. at 7, 375. Assuming, however, that Green did not apply, the Board found the language in the note to § 14.629 permissive, and that the Secretary's Privacy Act and administrative concerns regarding access were not unreasonable, arbitrary, capricious, or an abuse of discretion. R. at 5-9, 373-77. The Board further noted that, even if the regulations pertain to VBMS, § 1.600(d)(2) provides that §§ 1.600-.603 "do not create, and may not be relied upon to create, any right or benefit, substantive or procedural, enforceable at law against the United States or [VA]." R. at 7, 375.
As to whether the Secretary's denying access violates 38 U.S.C § 5904 and impedes the appellants' ability to competently and diligently represent their clients, the Board determined that the appellants had not alleged a specific instance in which they could not render effective counsel but rather had cited only hypothetical harm. R. at 9, 377-78. The Board thus found the relationship between access to VBMS for their paralegals and support staff and their statutory and ethical obligations too attenuated. R. at 9, 378. Turning to the appellants' arguments based on the practical considerations of efficiently running a law firm, the Board stated in part that the appellants had not cited a specific instance in which, because paralegals and staff could not access VBMS, the appellants missed a statutory deadline, VA did not provide a decisional document, or the appellants could not access their clients' electronic records. R. at 11-12, 379-81. Ultimately, the Board concluded that this case comes down to the appellants' disagreement with VA's policy, but that the Secretary had cited legitimate privacy and administrative concerns, and that his exercise of...
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