Pitts v. Shinseki

• Decision Date: 20 November 2012
• Docket Number: No. 2011–7182.,2011–7182.
• Citation: 700 F.3d 1279
• Parties: Ernest PITTS, Jr., Claimant–Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

700 F.3d 1279

Ernest PITTS, Jr., Claimant–Appellant,
v.
Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellee.

No. 2011–7182.

United States Court of Appeals,
Federal Circuit.

Nov. 20, 2012.

[700 F.3d 1280]

Miguel F. Eaton, Jones Day, of Washington, DC, argued for claimant-appellant. With him on the brief was Luke A. Sobota.

Jessica Toplin, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director.

Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Brian D. Griffin, Attorney, United States Department of Veterans Affairs, of Washington, DC. Of counsel was Y. Ken Lee, Attorney.

Before BRYSON, DYK, and PROST, Circuit Judges.

[700 F.3d 1281]

BRYSON, Circuit Judge.

Ernest Pitts, Jr., a veteran, claims entitlement to disability benefits from the Department of Veterans Affairs (“DVA”) based on post-traumatic stress syndrome (“PTSD”), a psychiatric disorder other than PTSD, a sinus disorder, and a skin disorder, all of which he contends are service-connected conditions. He was represented by counsel before the Court of Appeals for Veterans Claims (“CAVC”), which upheld a ruling of the Board of Veterans' Appeals rejecting his claims.

On appeal to this court, Mr. Pitts argues that his lawyer provided him inadequate representation in the CAVC and in so doing deprived him of his constitutional right to effective assistance of counsel before that court. We hold that the Constitution does not guarantee effective representation of counsel in connection with veterans' benefits appeals before the CAVC.

I

Mr. Pitts was in active military service between 1971 and 1974. Following his honorable discharge he filed claims seeking service connection for a psychiatric disorder and a lower back injury. A DVA regional office denied those claims in 1978, and the Board of Veterans' Appeals upheld that denial in 1983. In 1992, Mr. Pitts filed a claim seeking service connection for PTSD, and during the same year he sought to reopen his claim for a lower back injury. The regional office denied both claims. Those decisions became final when Mr. Pitts did not seek review by the Board of Veterans' Appeals.

In 1999, Mr. Pitts filed claims seeking service connection for sinusitis and a skin disorder. He also sought to reopen his earlier claims and submitted additional evidence of service connection for those disabilities. The regional office, however, determined that he had failed to show service connection for his newly claimed disabilities and that he had failed to submit new and material evidence sufficient to warrant reopening his previously denied claims.

The Board of Veterans' Appeals in 2005 upheld the regional office's decision with respect to all of Mr. Pitts's claims. The Board found that the evidence did not show that either his sinus condition or his skin condition was related to his military service. As to his request to reopen his earlier claims, the Board considered his newly submitted evidence, which consisted of certain medical records as well as his own statements and those of a family member asserting that his disabilities were service related. The Board found his submissions insufficient to disturb its previous rulings that (1) his lower back condition resulted not from service but from a post-service work-related injury; (2) there was no evidence that his psychiatric disorder other than PTSD was linked to his service; and (3) his PTSD claim was not shown to be service connected because there was no evidence of an in-service stressor.

When Mr. Pitts appealed that decision to the CAVC, the parties filed a joint motion to vacate and remand to enable the DVA to retrieve pertinent records from the Social Security Administration that the DVA had not previously sought to obtain. The joint motion added that Mr. Pitts would be free, on remand, to submit additional evidence and argument in support of his claims.

On remand, the Board conducted another hearing in September of 2006 and subsequently reopened Mr. Pitts's PTSD claim based on his assertions that he was shot at during service and that someone he knew had been killed in action. The Board also directed the regional office to attempt to verify the claimed stressor for

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Mr. Pitts's PTSD claim, to obtain the Social Security Administration records and any other relevant records, and to issue a detailed notice to Mr. Pitts as to the information and evidence that would be necessary to establish his entitlement to benefits. The regional office sent Mr. Pitts a notice explaining the type of evidence needed to reopen his previously denied claims and to establish each of his claims. In 2009, after the regional office obtained pertinent records from the Social Security Administration and elsewhere, the Board found that the DVA had complied with its duties to notify and assist Mr. Pitts. On the merits, the Board ruled that there was no new and material evidence sufficient to warrant reopening Mr. Pitts's claims for service connection for his lower back injury and his psychiatric disorder other than PTSD, because the records had not established a nexus between those conditions and his service. As to his sinus disorder and skin condition claims, the Board found that the evidence did not establish that those conditions were service connected. And as to his reopened PTSD claim, the Board concluded that the record did not show that he had a current diagnosis of PTSD.

Mr. Pitts then appealed to the CAVC. He argued on appeal that the hearing officer who conducted the Board's September 2006 hearing had not satisfied the requirements of 38 C.F.R. § 3.103(c)(2) because he had not sufficiently explained the evidentiary deficiencies in Mr. Pitts's case and had not suggested that Mr. Pitts submit further evidence in support of his claims. The CAVC agreed that the hearing officer had not satisfied the regulatory requirement. The court explained that the hearing officer had merely listed the claims on appeal, rather than explaining why they had been denied, and had failed to address the question whether there was sufficient evidence to reopen Mr. Pitts's claim of service connection for a psychiatric disorder other than PTSD.

Having found the remand proceeding deficient, however, the CAVC concluded that the error was harmless. The court first held that Mr. Pitts had not met his burden of showing that the error was prejudicial. The court noted that Mr. Pitts, through his counsel, had “fail[ed] to assert precisely how he was prejudiced by any purported hearing officer error or indicate what additional evidence he would have submitted if an error had not been committed.” Pitts v. Shinseki, No. 09–4560, slip op. at 4, 2011 WL 2184324 (Vet.App. June 7, 2011). Instead, he merely asserted that it would require “pure speculation” to conclude that the error did not prejudice him. Id. Notwithstanding counsel's failure to make a specific argument as to prejudice, the court reviewed the record and determined that the Board's error did not prejudice Mr. Pitts because he had “actual knowledge of the issues and evidence material to his claims.” Id. at 5. In light of the prior joint motion for remand, the court concluded that Mr. Pitts “was aware of the evidentiary and legal weaknesses of his claims prior to them being returned to the Board,” and that he was clearly aware of the problems with his claims, as those same evidentiary deficiencies had been pointed out in the prior appeal. Id.

Mr. Pitts subsequently obtained new counsel and prosecuted an appeal to this court.

II

Mr. Pitts's principal argument on appeal is that the lawyer who represented him before the CAVC provided ineffective assistance of counsel, which rendered the proceedings before that court fundamentally unfair, thus denying him his right to

[700 F.3d 1283]

due process under the Fifth Amendment. In particular, he contends that although his counsel successfully argued that the remand proceedings were defective, he did not make the further contention that the error was prejudicial. The failure to specifically assert and argue prejudice, he claims, amounted to constitutionally ineffective assistance of counsel and requires reversal of the CAVC's judgment.¹

It is well established that, as a general matter, the constitutional right to counsel—and thus the constitutional right to the effective assistance of counsel—does not attach in civil cases that do not involve the potential deprivation of a liberty interest.² In Lariscey v. United States, 861 F.2d 1267, 1270 (Fed.Cir.1988), this court stated that in civil proceedings, “the right to counsel is highly circumscribed, and has been authorized in exceedingly restricted...