Shinseki, Secretary of Veterans Affairs v. Sanders , 129 S. Ct. 1696 ( 2009 )


Menu:
  • (Slip Opinion)              OCTOBER TERM, 2008                                       1
    Syllabus
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
    being done in connection with this case, at the time the opinion is issued.
    The syllabus constitutes no part of the opinion of the Court but has been
    prepared by the Reporter of Decisions for the convenience of the reader.
    See United States v. Detroit Timber & Lumber Co., 
    200 U. S. 321
    , 337.
    SUPREME COURT OF THE UNITED STATES
    Syllabus
    SHINSEKI, SECRETARY OF VETERANS AFFAIRS v.
    SANDERS
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
    THE FEDERAL CIRCUIT
    No. 07–1209. Argued December 8, 2008—Decided April 21, 2009*
    As part of the Department of Veterans Affairs’ (VA) statutory duty to
    help a veteran develop a benefits claim, the Secretary of Veterans Af
    fairs (Secretary) must notify an applicant of any information or evi
    dence that is necessary to substantiate the claim. 
    38 U. S. C. §5103
    (a). VA regulations require the notice to specify (1) what fur
    ther information is necessary, (2) what portions of that information
    the VA will obtain, and (3) what portions the claimant must obtain.
    These requirements are referred to as Type One, Type Two, and Type
    Three, respectively.
    The Court of Appeals for Veterans Claims (Veterans Court), which
    hears initial appeals from VA claims decisions, has a statutory duty
    to “take due account of the rule of prejudicial error.” §7261(b)(2). It
    has developed a system for dealing with notice errors, whereby a
    claimant arguing that the VA failed to give proper notice must ex
    plain precisely how the notice was defective. The reviewing judge
    will then decide what “type” of notice error the VA committed. Under
    the Veterans Court’s approach, a Type One error has the “natural ef
    fect” of harming the claimant, but Types Two and Three errors do
    not. In the latter instances, the claimant must show harm, e.g., by
    describing what evidence he would have provided (or asked the Sec
    retary to provide) had the notice not been defective, and explaining
    just how the lack of that notice and evidence affected the adjudica
    tion’s essential fairness.
    The Federal Circuit, which reviews Veterans Court decisions, re
    ——————
    * Together with Shinseki, Secretary of Veterans Affairs v. Simmons,
    also on certiorari to the same court (see this Court’s Rule 12.4).
    2                        SHINSEKI v. SANDERS
    Syllabus
    jected the Veterans Court’s approach and set forth its own framework
    for determining whether a notice error is harmless. When the VA
    provides a claimant with a notice that is deficient in any respect, the
    framework requires the Veterans Court to presume that the error is
    prejudicial and requires reversal unless the VA can demonstrate (1)
    that the defect was cured by the claimant’s actual knowledge or (2)
    that benefits could not have been awarded as a matter of law. The
    Federal Circuit applied its framework in both of the present cases.
    In respondent Sanders’ case, the VA denied disability benefits on
    the ground that Sanders’ disability, blindness in his right eye, was
    not related to his military service. Sanders argued to the Veterans
    Court that the VA had made notice errors Type Two and Type Three
    when it informed him what further information was necessary, but
    failed to tell him which portions of that information the Secretary
    would provide and which portions he would have to provide. The
    Veterans Court held these notice errors harmless, but the Federal
    Circuit reversed, ruling that the VA had not made the necessary
    claimant-knowledge or benefits-ineligibilty showing required by the
    Federal Circuit’s framework.
    The VA also denied benefits in respondent Simmons’ case after
    finding that her left-ear hearing loss, while service connected, was
    not severe enough to warrant compensation. Simmons argued to the
    Veterans Court, inter alia, that the VA had made a Type One notice
    error by failing to notify her of the information necessary to show
    worsening of her hearing. The court agreed, finding the error preju
    dicial. Noting that a Type One notice error has the “natural effect” of
    producing prejudice, the Veterans Court added that its review of the
    record convinced it that Simmons did not have actual knowledge of
    what evidence was necessary to substantiate her claim and, had the
    VA told her more specifically what additional information was
    needed, she might have obtained that evidence. The Federal Circuit
    affirmed.
    Held:
    1. The Federal Circuit’s harmless-error framework conflicts with
    §7261(b)(2)’s requirement that the Veterans Court take “due account
    of the rule of prejudicial error.” Pp. 8–15.
    (a) That §7261(b)(2) requires the same sort of “harmless-error”
    rule as is ordinarily applied in civil cases is shown by the statutory
    words “take due account” and “prejudicial error.” Congress used the
    same words in the Administrative Procedure Act (APA), 
    5 U. S. C. §706
    , which is an “ ‘administrative law . . . harmless error rule,’ ” Na
    tional Assn. of Home Builders v. Defenders of Wildlife, 
    551 U. S. 644
    ,
    ___. Legislative history confirms that Congress intended §7261(b)(2)
    to incorporate the APA’s approach. Pp. 8–9.
    Cite as: 556 U. S. ____ (2009)                    3
    Syllabus
    (b) Three related features, taken together, demonstrate that the
    Federal Circuit’s framework mandates an approach to harmless error
    that differs significantly from the one normally taken in civil cases.
    First, the framework is too complex and rigid: In every case involving
    any type of notice error, the Veterans Court must find the error
    harmful unless the VA demonstrates the claimant’s actual knowledge
    curing the defect or his ineligibility for benefits as a matter of law.
    An error’s harmlessness should not be determined through the use of
    mandatory presumptions and rigid rules, but through the case
    specific application of judgment, based upon examination of the re
    cord. See Kotteakos v. United States, 
    328 U. S. 750
    , 760. Second, the
    framework imposes an unreasonable evidentiary burden on the VA,
    requiring the Secretary to demonstrate, e.g., a claimant’s state of
    mind about what he knew or the nonexistence of evidence that might
    significantly help the claimant. Third, the framework requires the
    VA, not the claimant, to explain why the error is harmless. The bur
    den of showing harmfulness is normally on the party attacking an
    agency’s determination. See, e.g., Palmer v. Hoffman, 
    318 U. S. 109
    ,
    116. This Court has placed the burden on the Government only when
    the underlying matter was criminal. See, e.g., Kotteakos, 
    supra, at 760
    . The good reasons for this rule do not apply in the ordinary civil
    case. Pp. 9–13.
    (c) The foregoing analysis is subject to two important qualifica
    tions. First, the Court need not, and does not, decide the lawfulness
    of the Veterans Court’s reliance on the “natural effects” of certain
    kinds of notice errors. Second, although Congress’ special solicitude
    for veterans might lead a reviewing court to consider harmful in a
    veteran’s case error that it might consider harmless in other cases,
    that is not at issue, and need not be decided here. Pp. 13–15.
    2. In Sanders’ case, a review of the record demonstrates that the
    Veterans Court lawfully found the notice errors harmless. The VA’s
    Types Two and Three notice errors did not matter, given that Sand
    ers has pursued his claim for many years and should be aware of why
    he has been unable to show that his disability is service connected.
    Sanders has not told the reviewing courts what additional evidence
    proper notice would have led him to obtain or seek and has not ex
    plained how the notice errors could have made any difference.
    In Simmons’ case, some features of the record suggest that the VA’s
    Type One error was harmless, e.g., that she has long sought benefits
    and has a long history of medical examinations. But other features,
    e.g., that her left-ear hearing loss was concededly service connected
    and has continuously deteriorated over time, suggest the opposite.
    Given the uncertainties, the Veterans Court should decide whether
    reconsideration is necessary. Pp. 15–17.
    4                     SHINSEKI v. SANDERS
    Syllabus
    
    487 F. 3d 881
    , reversed and remanded; 
    487 F. 3d 892
    , vacated and re
    manded.
    BREYER, J., delivered the opinion of the Court, in which ROBERTS,
    C. J., and SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined. SOUTER,
    J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ.,
    joined.
    Cite as: 556 U. S. ____ (2009)                              1
    Opinion of the Court
    NOTICE: This opinion is subject to formal revision before publication in the
    preliminary print of the United States Reports. Readers are requested to
    notify the Reporter of Decisions, Supreme Court of the United States, Wash
    ington, D. C. 20543, of any typographical or other formal errors, in order
    that corrections may be made before the preliminary print goes to press.
    SUPREME COURT OF THE UNITED STATES
    _________________
    No. 07–1209
    _________________
    ERIC K. SHINSEKI, SECRETARY OF VETERANS
    AFFAIRS, PETITIONER v. WOODROW F. SANDERS
    ERIC K. SHINSEKI, SECRETARY OF VETERANS
    AFFAIRS, PETITIONER v. PATRICIA D. SIMMONS
    ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
    APPEALS FOR THE FEDERAL CIRCUIT
    [April 21, 2009]
    JUSTICE BREYER delivered the opinion of the Court.
    In these two civil cases, the Department of Veterans
    Affairs (VA) denied veterans’ claims for disability benefits.
    In both cases the VA erroneously failed to provide the
    veteran with a certain kind of statutorily required notice.
    See 
    38 U. S. C. §5103
    (a). In both cases the VA argued that
    the error was harmless. And in both cases the Court of
    Appeals for the Federal Circuit, after setting forth a
    framework for determining whether a notice error is
    harmless, rejected the VA’s argument.
    In our view, the Federal Circuit’s “harmless-error”
    framework is too complex and rigid, its presumptions
    impose unreasonable evidentiary burdens upon the VA,
    and it is too likely too often to require the Court of Appeals
    for Veterans Claims (Veterans Court) to treat as harmful
    errors that in fact are harmless. We conclude that the
    framework conflicts with established law. See §7261(b)(2)
    (Veterans Court must “take due account of the rule of
    prejudicial error”).
    2                  SHINSEKI v. SANDERS
    Opinion of the Court
    I
    A
    The law entitles veterans who have served on active
    duty in the United States military to receive benefits for
    disabilities caused or aggravated by their military service.
    The Veterans Claims Assistance Act of 2000 requires the
    VA to help a veteran develop his or her benefits claim.
    §5103A. In doing so, the Secretary of Veterans Affairs
    (Secretary), upon “receipt of” an “application” for benefits,
    must “notify the claimant . . . of any information, and any
    medical or lay evidence, not previously provided to the
    Secretary that is necessary to substantiate the claim.” As
    “part of” the required “notice,” the Secretary must also
    “indicate which portion of” the required “information and
    evidence . . . is to be provided by the claimant and which
    portion . . . the Secretary . . . will attempt to obtain.”
    §5103(a).
    Repeating these statutory requirements in its regula
    tions, the VA has said it will provide a claimant with a
    letter that tells the claimant (1) what further information
    is necessary to substantiate his or her claim; (2) what
    portions of that information the VA will obtain for the
    claimant; and (3) what portions the claimant must obtain.
    
    38 CFR §3.159
    (b) (2008). At the time of the decisions
    below, the regulations also required the VA to tell the
    claimant (4) that he may submit any other relevant infor
    mation that he has available. §3.159(b)(1). (The VA refers
    to these notice requirements as Type One, Type Two, Type
    Three, and Type Four, respectively.)
    B
    The VA’s regional offices decide most claims. A claim
    ant may appeal an adverse regional office decision to the
    VA’s Board of Veterans’ Appeals, an administrative board
    with the power to consider certain types of new evidence.
    Cite as: 556 U. S. ____ (2009)              3
    Opinion of the Court
    
    38 U. S. C. §§7107
    (b), 7109(a); 
    38 CFR §20.1304
    (c). The
    claimant may seek review of an adverse Board decision in
    the Veterans Court, an Article I court. And the claimant
    (or the Government) may appeal an adverse decision of the
    Veterans Court to the Court of Appeals for the Federal
    Circuit—but only in respect to certain legal matters,
    namely, “the validity . . . of any statute or regulation . . . or
    any interpretation thereof . . . that was relied on” by the
    Veterans Court in making its decision. 
    38 U. S. C. §7292
    .
    A specific statute requires the Veterans Court to “take
    due account of the rule of prejudicial error.” §7261(b)(2).
    In applying this statutory provision, the Veterans Court
    has developed its own special framework for notice errors.
    Under this framework, a claimant who argues that the VA
    failed to give proper notice must explain precisely how the
    notice was defective. Then the reviewing judge will decide
    what “type” of notice error the VA committed. The Veter
    ans Court has gone on to say that a Type One error (i.e., a
    failure to explain what further information is needed) has
    the “natural effect” of harming the claimant; but errors of
    Types Two, Three, or Four (i.e., a failure to explain just
    who, claimant or agency, must provide the needed mate
    rial or to tell the veteran that he may submit any other
    evidence available) do not have the “natural effect” of
    harming the claimant. In these latter instances, the
    claimant must show how the error caused harm, for ex
    ample, by stating in particular just “what evidence” he
    would have provided (or asked the Secretary to provide)
    had the notice not been defective, and explaining just “how
    the lack of that notice and evidence affected the essential
    fairness of the adjudication.” Mayfield v. Nicholson, 
    19 Vet. App. 103
    , 121 (2005).
    C
    In the first case, Woodrow Sanders, a veteran of World
    War II, claimed that a bazooka exploded near his face in
    4                   SHINSEKI v. SANDERS
    Opinion of the Court
    1944, causing later blindness in his right eye. His war
    time medical records, however, did not indicate any eye
    problems. Indeed, his 1945 discharge examination showed
    near-perfect vision. But a 1948 eye examination revealed
    an inflammation of the right-eye retina and surrounding
    tissues—a condition that eventually left him nearly blind
    in that eye. Soon after the examination Sanders filed a
    claim for disability benefits. But in 1949 the VA denied
    benefits on the ground that Sanders had failed to show a
    connection between his eye condition and his earlier mili
    tary service.
    Forty-two years later, Sanders asked the VA to reopen
    his benefits claim. He argued that the 1944 bazooka
    explosion had hurt his eye, and added that that he had
    begun to experience symptoms—blurred vision, swelling,
    and loss of sight—in 1946. He included a report from a
    VA doctor, Dr. Joseph Ruda, who said that “[i]t is not
    inconceivable that” the condition “could have occurred
    secondary to trauma, as stated by” Sanders. A private
    ophthalmologist, Dr. Gregory Strainer, confirming that
    Sanders’ right retina was scarred, added that this “[t]ype
    of . . . injury . . . can certainly be concussive in character.”
    App. C to Pet. for Cert. 26a–27a.
    In 1992, the VA reopened Sanders’ claim. 
    Id.,
     at 29a.
    After obtaining Sanders’ military medical records, the VA
    arranged for a further medical examination, this time by
    VA eye specialist Dr. Sheila Anderson. After examining
    Sanders’ medical history (including records of the exami
    nations made at the time of Sanders’ enlistment and
    discharge), Anderson agreed with the medical diagnosis
    but concluded that Sanders’ condition was not service
    related. Since Sanders’ right-eye “visual acuity” was
    “20/20” upon enlistment and “20/25” upon discharge, and
    he had “reported decreased vision only 6 months prior” to
    his 1948 doctor’s “visit,” and since “there are no other
    signs of ocular trauma,” Anderson thought that Sanders’
    Cite as: 556 U. S. ____ (2009)             5
    Opinion of the Court
    condition “is most likely infectious in nature, although the
    etiology at this point is impossible to determine.” “Based
    on the documented records,” she concluded, “the patient
    did not lose vision while on active duty.” The VA regional
    office denied Sanders’ claim. 
    Ibid.
    Sanders sought Board review, and in the meantime he
    obtained the opinion of another VA doctor, Dr. Duane Nii,
    who said that the “etiology of the patient’s” eye condition
    “is . . . difficult to ascertain.” He thought that “it is possi
    ble that” the condition “could be related to” a bazooka
    explosion, though the “possibility of” an infection “as the
    etiology . . . could also be entertained.” 
    Id.,
     at 30a. The
    Board concluded that Sanders had failed to show that the
    eye injury was service connected. The Board said that it
    had relied most heavily upon Anderson’s report because,
    unlike other reports, it took account of Sanders’ military
    medical records documenting his eyesight at the time of
    his enlistment and discharge. And the Board conse
    quently affirmed the regional office’s denial of Sanders’
    claim.
    Sanders then appealed to the Veterans Court. There he
    argued, among other things, that the VA had made a
    notice error. Sanders conceded that the VA had sent him
    a letter telling him (1) what further information was
    necessary to substantiate his claim. But, he said, the VA
    letter did not tell him (2) which portions of the information
    the Secretary would provide or (3) which portions he
    would have to provide. That is to say, he complained
    about notice errors Type Two and Type Three.
    The Veterans Court held that these notice errors were
    harmless. It said that Sanders had not explained how he
    would have acted differently, say, by identifying what
    different evidence he would have produced or asked the
    Secretary to obtain for him, had he received proper notice.
    Finding no other error, the Veterans Court affirmed the
    Board’s decision.
    6                  SHINSEKI v. SANDERS
    Opinion of the Court
    D
    The Court of Appeals for the Federal Circuit reviewed
    the Veterans Court’s decision and held that the Veterans
    Court was wrong to find the notice error harmless. The
    Federal Circuit wrote that when the VA provides a claim
    ant with a notice letter that is deficient in any respect (to
    the point where a “reasonable person” would not have read
    it as providing the necessary information), the Veterans
    Court “should . . . presum[e]” that the notice error is
    “prejudicial, requiring reversal unless the VA can show
    that the error did not affect the essential fairness of the
    adjudication.” Sanders v. Nicholson, 
    487 F. 3d 881
    , 889
    (2007). To make this latter showing, the court added, the
    VA must “demonstrate” (1) that the “defect was cured by
    actual knowledge on the” claimant’s “part,” or (2) “that a
    benefit could not have been awarded as a matter of law.”
    
    Ibid.
     Because the VA had not made such a showing, the
    Federal Circuit reversed the Veterans Court’s decision.
    E
    In the second case before us, the claimant, Patricia
    Simmons, served on active military duty from December
    1978 to April 1980. While on duty she worked in a noisy
    environment close to aircraft; after three months she
    began to lose hearing in her left ear; and by the time she
    was discharged, her left-ear hearing had become worse.
    Soon after her discharge, Simmons applied for disability
    benefits. The VA regional office found her hearing loss
    was service connected; but it also found the loss insuffi
    ciently severe to warrant compensation. In November
    1980, it denied her claim.
    In 1998, Simmons asked the VA to reopen her claim.
    She provided medical examination records showing fur
    ther loss of hearing in her left ear along with (what she
    considered related) loss of hearing in her right ear. The
    VA arranged for hearing examinations by VA doctors in
    Cite as: 556 U. S. ____ (2009)            7
    Opinion of the Court
    1999, 2001, and 2002. The doctors measured her left-ear
    hearing loss, ranking it as moderate to severe; they also
    measured her right-ear hearing loss, ranking it as mild to
    moderate. After comparing the results of the examina
    tions with a VA hearing-loss compensation schedule, the
    regional office concluded that Simmons’ left-ear hearing
    loss, while service connected, was not severe enough to
    warrant compensation. At the same time, the regional
    office concluded that her right-ear hearing loss was nei
    ther service connected nor sufficiently severe. Simmons
    appealed the decision to the Board, which affirmed the
    regional office’s determination.
    In 2003, Simmons appealed to the Veterans Court.
    Among other things, she said that she had not received a
    notice about (and she consequently failed to attend) a
    further right-ear medical examination that the VA later
    told her it had arranged. She added that, in respect to her
    claim for benefits for loss of hearing in her left ear, the VA
    had made a Type One notice error (i.e., it had failed to tell
    her what further information was needed to substantiate
    her claim). Simmons conceded that she had received a
    letter from the VA. But the letter told her only what, in
    general, a person had to do to show that a hearing injury
    was service connected. It did not tell her anything about
    her specific problem, namely, what further information
    she must provide to show a worsening of hearing in her
    left ear, to the point where she could receive benefits.
    The Veterans Court agreed with Simmons, and it found
    both errors prejudicial. In respect to Simmons’ left-ear
    hearing loss (the matter at issue here), it pointed out that
    it had earlier said (in Mayfield, 19 Vet. App., at 120–124)
    that a Type One notice error has the “natural effect of
    producing prejudice.” The court added that its “revie[w]
    [of] the record in its entirety” convinced it that Simmons
    did not have “actual knowledge of what evidence was
    necessary to substantiate her claim” and, had the VA told
    8                  SHINSEKI v. SANDERS
    Opinion of the Court
    Simmons more specifically about what additional medical
    information it needed, Simmons might have “obtained” a
    further “private” medical “examination substantiating her
    claim.” App. G to Pet. for Cert. 81a. The Veterans Court
    consequently remanded the case to the Board.
    The Government appealed the Veterans Court’s deter
    mination to the Court of Appeals for the Federal Circuit.
    And that court affirmed the Veterans Court’s decision on
    the basis of its decision in Sanders. Simmons v. Nichol
    son, 
    487 F. 3d 892
     (2007).
    F
    We granted certiorari in both Sanders’ and Simmons’
    cases in order to determine the lawfulness of the Federal
    Circuit’s “harmless-error” holdings.
    II
    The Federal Circuit’s holdings flow directly from its use
    of the “harmless-error” framework that we have described.
    Supra, at 6. Thus we must decide whether that frame
    work is consistent with a particular statutory require
    ment, namely, the requirement that the Veterans Court
    “take due account of the rule of prejudicial error,”
    
    38 U. S. C. §7261
    (b)(2). See supra, at 3. We conclude
    that the framework is not consistent with the statutory
    demand.
    A
    We believe that the statute, in stating that the Veterans
    Court must “take due account of the rule of prejudicial
    error,” requires the Veterans Court to apply the same kind
    of “harmless-error” rule that courts ordinarily apply in
    civil cases. The statutory words “take due account” and
    “prejudicial error” make clear that is so. Congress used
    the same words in the Administrative Procedure Act
    (APA). 
    5 U. S. C. §706
     (“[A] court shall review the whole
    record . . . and due account shall be taken of the rule of
    Cite as: 556 U. S. ____ (2009)            9
    Opinion of the Court
    prejudicial error”). The Attorney General’s Manual on the
    Administrative Procedure Act explained that the APA’s
    reference to “prejudicial error” is intended to “su[m] up in
    succinct fashion the ‘harmless error’ rule applied by the
    courts in the review of lower court decisions as well as of
    administrative bodies.” Dept. of Justice, Attorney Gen
    eral’s Manual on the Administrative Procedure Act 110
    (1947) (emphasis added). And we have previously de
    scribed §706 as an “ ‘administrative law . . . harmless error
    rule.’ ” National Assn. of Home Builders v. Defenders of
    Wildlife, 
    551 U. S. 644
    , ___ (2007) (slip op., at 12) (quoting
    PDK Labs. Inc. v. United States Drug Enforcement
    Admin., 
    362 F. 3d 786
    , 799 (CADC 2004)). Legislative
    history confirms that Congress intended the Veterans
    Court “prejudicial error” statute to “incorporate a refer
    ence” to the APA’s approach. S. Rep. No. 100–418, p. 61
    (1988). We have no indication of any relevant distinction
    between the manner in which reviewing courts treat civil
    and administrative cases. Consequently, we assess the
    lawfulness of the Federal Circuit’s approach in light of our
    general case law governing application of the harmless
    error standard.
    B
    Three related features of the Federal Circuit’s frame
    work, taken together, convince us that it mandates an
    approach to harmless error that differs significantly from
    the approach courts normally take in ordinary civil cases.
    First, the framework is complex, rigid, and mandatory. In
    every case involving a notice error (of no matter which
    kind) the Veterans Court must find the error harmful
    unless the VA “demonstrate[s]” (1) that the claimant’s
    “actual knowledge” cured the defect or (2) that the claim
    ant could not have received a benefit as a matter of law.
    Suppose the notice error, as in Sanders’ case, consisted of
    a failure to describe what additional information, if any,
    10                  SHINSEKI v. SANDERS
    Opinion of the Court
    the VA would provide. It might be obvious from the record
    in the particular case that the error made no difference.
    But under the Federal Circuit’s rule, the Veterans Court
    would have to remand the case for new proceedings
    regardless.
    We have previously warned against courts’ determining
    whether an error is harmless through the use of manda
    tory presumptions and rigid rules rather than case-specific
    application of judgment, based upon examination of the
    record. See Kotteakos v. United States, 
    328 U. S. 750
    , 760
    (1946). The federal “harmless-error” statute, now codified
    at 
    28 U. S. C. §2111
    , tells courts to review cases for errors
    of law “without regard to errors” that do not affect the
    parties’ “substantial rights.” That language seeks to
    prevent appellate courts from becoming “ ‘ impregnable
    citadels of technicality, ’ ” Kotteakos, 
    328 U. S., at 759
    . And
    we have read it as expressing a congressional preference
    for determining “harmless error” without the use of pre
    sumptions insofar as those presumptions may lead courts
    to find an error harmful, when, in fact, in the particular
    case before the court, it is not. See 
    id., at 760
    ; O’Neal v.
    McAninch, 
    513 U. S. 432
    , 436–437 (1995); see also R.
    Traynor, The Riddle of Harmless Error 26 (1970) (herein
    after Traynor) (reviewing court normally should “deter
    mine whether the error affected the judgment . . . without
    benefit of such aids as presumptions . . . that expedite fact
    finding at trial ”).
    The Federal Circuit’s presumptions exhibit the very
    characteristics that Congress sought to discourage. In the
    cases before us, they would prevent the reviewing court
    from directly asking the harmless-error question. They
    would prevent that court from resting its conclusion on the
    facts and circumstances of the particular case. And they
    would require the reviewing court to find the notice error
    prejudicial even if that court, having read the entire re
    cord, conscientiously concludes the contrary.
    Cite as: 556 U. S. ____ (2009)           11
    Opinion of the Court
    Second, the Federal Circuit’s framework imposes an
    unreasonable evidentiary burden upon the VA. How is the
    Secretary to demonstrate, in Sanders’ case for example,
    that Sanders knew that he, not the VA, would have to
    produce more convincing evidence that the bazooka acci
    dent caused his eye injury? How could the Secretary
    demonstrate that there is no evidence anywhere that
    would entitle Sanders to benefits? To show a claimant’s
    state of mind about such a matter will often prove diffi
    cult, perhaps impossible. And even if the VA (as in Sand
    ers’ case) searches the military records and comes up
    emptyhanded, it may still prove difficult, or impossible, to
    prove the nonexistence of evidence lying somewhere about
    that might significantly help the claimant.
    We have previously pointed out that setting an eviden
    tiary “barrier so high that it could never be surmounted
    would justify the very criticism that spawned the harm
    less-error doctrine,” namely, reversing for error “ ‘regard
    less of its effect on the judgment.’ ” Neder v. United States,
    
    527 U. S. 1
    , 18 (1999) (quoting Traynor 50). The Federal
    Circuit’s evidentiary rules increase the likelihood of rever
    sal in cases where, in fact, the error is harmless. And, as
    we pointed out in Neder, that likelihood encourages abuse
    of the judicial process and diminishes the public’s confi
    dence in the fair and effective operation of the judicial
    system. 
    527 U. S., at 18
    .
    Third, the Federal Circuit’s framework requires the VA,
    not the claimant, to explain why the error is harmless.
    This Court has said that the party that “seeks to have a
    judgment set aside because of an erroneous ruling carries
    the burden of showing that prejudice resulted.” Palmer v.
    Hoffman, 
    318 U. S. 109
    , 116 (1943); see also Tipton v.
    Socony Mobil Oil Co., 
    375 U. S. 34
    , 36 (1963) (per curiam);
    United States v. Borden Co., 
    347 U. S. 514
    , 516–517
    (1954); cf. McDonough Power Equipment, Inc. v. Green
    wood, 
    464 U. S. 548
    , 553 (1984); Market Street R. Co. v.
    12                 SHINSEKI v. SANDERS
    Opinion of the Court
    Railroad Comm’n of Cal., 
    324 U. S. 548
    , 562 (1945) (find
    ing error harmless “in the absence of any showing of . . .
    prejudice”).
    Lower court cases make clear that courts have corre
    lated review of ordinary administrative proceedings to
    appellate review of civil cases in this respect. Conse
    quently, the burden of showing that an error is harmful
    normally falls upon the party attacking the agency’s de
    termination. See, e.g., American Airlines, Inc. v. Depart
    ment of Transp., 
    202 F. 3d 788
    , 797 (CA5 2000) (declining
    to remand where appellant failed to show that error in
    administrative proceeding was harmful); Air Canada v.
    Department of Transp., 
    148 F. 3d 1142
    , 1156–1157 (CADC
    1998) (same); Nelson v. Apfel, 
    131 F. 3d 1228
    , 1236 (CA7
    1997) (same); Bar MK Ranches v. Yuetter, 
    994 F. 2d 735
    ,
    740 (CA10 1993) (same); Camden v. Department of Labor,
    
    831 F. 2d 449
    , 451 (CA3 1987) (same); Panhandle Co-op
    Assn. v. EPA, 
    771 F. 2d 1149
    , 1153 (CA8 1985) (same);
    Frankfort v. FERC, 
    678 F. 2d 699
    , 708 (CA7 1982) (same);
    NLRB v. Seine & Line Fishermen, 
    374 F. 2d 974
    , 981 (CA9
    1967) (same).
    To say that the claimant has the “burden” of showing
    that an error was harmful is not to impose a complex
    system of “burden shifting” rules or a particularly onerous
    requirement. In ordinary civil appeals, for example, the
    appellant will point to rulings by the trial judge that the
    appellant claims are erroneous, say, a ruling excluding
    favorable evidence. Often the circumstances of the case
    will make clear to the appellate judge that the ruling, if
    erroneous, was harmful and nothing further need be said.
    But, if not, then the party seeking reversal normally must
    explain why the erroneous ruling caused harm. If, for
    example, the party seeking an affirmance makes a strong
    argument that the evidence on the point was overwhelm
    ing regardless, it normally makes sense to ask the party
    seeking reversal to provide an explanation, say, by mar
    Cite as: 556 U. S. ____ (2009)           13
    Opinion of the Court
    shaling the facts and evidence showing the contrary. The
    party seeking to reverse the result of a civil proceeding
    will likely be in a position at least as good as, and often
    better than, the opposing party to explain how he has been
    hurt by an error. Cf. United States v. Fior D’Italia, Inc.,
    
    536 U. S. 238
    , 256, n. 4 (2002) (SOUTER, J., dissenting).
    Respondents urge the creation of a special rule for this
    context, placing upon the agency the burden of proving
    that a notice error did not cause harm. But we have
    placed such a burden on the appellee only when the mat
    ter underlying review was criminal. See, e.g., Kotteakos,
    
    328 U. S., at 760
    . In criminal cases the Government seeks
    to deprive an individual of his liberty, thereby providing a
    good reason to require the Government to explain why an
    error should not upset the trial court’s determination.
    And the fact that the Government must prove its case
    beyond a reasonable doubt justifies a rule that makes it
    more difficult for the reviewing court to find that an error
    did not affect the outcome of a case. See United States v.
    Olano, 
    507 U. S. 725
    , 741 (1993) (stating that the Gov
    ernment bears the “burden of showing the absence of
    prejudice”). But in the ordinary civil case that is not so.
    See Palmer, 
    supra, at 116
    .
    C
    Our discussion above is subject to two important qualifi
    cations. First, we need not, and we do not, decide the
    lawfulness of the use by the Veterans Court of what it
    called the “natural effects” of certain kinds of notice er
    rors. We have previously made clear that courts may
    sometimes make empirically based generalizations about
    what kinds of errors are likely, as a factual matter, to
    prove harmful. See Kotteakos, 
    supra,
     at 760–761 (review
    ing courts may learn over time that the “ ‘natural effect’ ”
    of certain errors is “ ‘to prejudice a litigant’s substantial
    rights’ ” (quoting H. R. Rep. No. 913, 65th Cong., 3d Sess.,
    14                 SHINSEKI v. SANDERS
    Opinion of the Court
    p. 1 (1919))). And by drawing upon “experience” that
    reveals some such “ ‘natural effect,’ ” a court might prop
    erly influence, though not control, future determinations.
    See Kotteakos, 
    supra,
     at 760–761. We consider here,
    however, only the Federal Circuit’s harmless-error frame
    work. That framework, as we have said, is mandatory.
    And its presumptions are not based upon an effort to
    determine “natural effects.”
    Indeed, the Federal Circuit is the wrong court to make
    such determinations. Statutes limit the Federal Circuit’s
    review to certain kinds of Veterans Court errors, namely,
    those that concern “the validity of . . . any statute or regu
    lation . . . or any interpretation thereof.” 
    38 U. S. C. §7292
    . But the factors that inform a reviewing court’s
    “harmless-error” determination are various, potentially
    involving, among other case-specific factors, an estimation
    of the likelihood that the result would have been different,
    an awareness of what body (jury, lower court, administra
    tive agency) has the authority to reach that result, a con
    sideration of the error’s likely effects on the perceived
    fairness, integrity, or public reputation of judicial proceed
    ings, and a hesitancy to generalize too broadly about
    particular kinds of errors when the specific factual cir
    cumstances in which the error arises may well make all
    the difference. See Neder, 
    527 U. S., at
    18–19; Kotteakos,
    
    supra,
     at 761–763; Traynor 33–37.
    It is the Veterans Court, not the Federal Circuit, that
    sees sufficient case-specific raw material in veterans’ cases
    to enable it to make empirically based, nonbinding gener
    alizations about “natural effects.” And the Veterans
    Court, which has exclusive jurisdiction over these cases, is
    likely better able than is the Federal Circuit to exercise an
    informed judgment as to how often veterans are harmed
    by which kinds of notice errors. Cf. United States v. Hag
    gar Apparel Co., 
    526 U. S. 380
    , 394 (1999) (Article I court’s
    special “expertise . . . guides it in making complex deter
    Cite as: 556 U. S. ____ (2009)          15
    Opinion of the Court
    minations in a specialized area of the law”).
    Second, we recognize that Congress has expressed spe
    cial solicitude for the veterans’ cause. See post, at 2
    (SOUTER, J., dissenting). A veteran, after all, has per
    formed an especially important service for the Nation,
    often at the risk of his or her own life. And Congress has
    made clear that the VA is not an ordinary agency. Rather,
    the VA has a statutory duty to help the veteran develop
    his or her benefits claim. See Veterans Claims Assistance
    Act of 2000, 38 U. S. C. §5103A. Moreover, the adjudica
    tory process is not truly adversarial, and the veteran is
    often unrepresented during the claims proceedings. See
    Walters v. National Assn. of Radiation Survivors, 
    473 U. S. 305
    , 311 (1985). These facts might lead a reviewing
    court to consider harmful in a veteran’s case error that it
    might consider harmless in other circumstances. But that
    is not the question before us. And we need not here decide
    whether, or to what extent, that may be so.
    III
    We have considered the two cases before us in light of
    the principles discussed. In Sanders’ case, the Veterans
    Court found the notice error harmless. And after review
    ing the record, we conclude that finding is lawful. The VA
    told Sanders what further evidence would be needed to
    substantiate his claim. It failed to specify what portion of
    any additional evidence the Secretary would provide (we
    imagine none) and what portion Sanders would have to
    provide (we imagine all).
    How could the VA’s failure to specify this (or any other)
    division of labor have mattered? Sanders has pursued his
    claim for over six decades; he has had numerous medical
    examinations; and he should be aware of the respect in
    which his benefits claim is deficient (namely, his inability
    to show that his disability is connected to his World War II
    service). See supra, at 5. Sanders has not told the Veter
    16                 SHINSEKI v. SANDERS
    Opinion of the Court
    ans Court, the Federal Circuit, or this Court, what specific
    additional evidence proper notice would have led him to
    obtain or seek. He has not explained to the Veterans
    Court, to the Federal Circuit, or to us, how the notice error
    to which he points could have made any difference. The
    Veterans Court did not consider the harmlessness issue a
    borderline question. Nor do we. We consequently reverse
    the Federal Circuit’s judgment and remand the case so
    that the court can reinstate the judgment of the Veterans
    Court.
    Simmons’ case is more difficult. The Veterans Court
    found that the VA had committed a Type One error, i.e., a
    failure to tell Simmons what information or evidence she
    must provide to substantiate her claim. The VA sent
    Simmons a letter that provided her only with general
    information about how to prove a claim while telling her
    nothing at all about how to proceed further in her own
    case, a case in which the question was whether a conced
    edly service-connected left-ear hearing problem had dete
    riorated to the point where it was compensable. And the
    VA did so in the context of having arranged for a further
    right-ear medical examination, which (because of lack of
    notice) Simmons failed to attend. The Veterans Court
    took the “natural effect” of a Type One error into account
    while also reviewing the record as a whole.
    Some features of the record suggest the error was harm
    less, for example, the fact that Simmons has long sought
    benefits and has a long history of medical examinations.
    But other features—e.g., the fact that her left-ear hearing
    loss was concededly service connected and has continu
    ously deteriorated over time, and the fact that the VA had
    scheduled a further examination of her right ear that (had
    notice been given) might have revealed further left-ear
    hearing loss—suggest the opposite. Given the uncertain
    ties, we believe it is appropriate to remand this case so
    that the Veterans Court can decide whether re
    Cite as: 556 U. S. ____ (2009)                 17
    Opinion of the Court
    consideration is necessary.
    *     *    *
    We conclude that the Federal Circuit’s harmless-error
    framework is inconsistent with the statutory requirement
    that the Veterans Court take “due account of the rule of
    prejudicial error.” 
    38 U. S. C. §7261
    (b)(2). We reverse the
    Federal Circuit’s judgment in Sanders’ case, and we va
    cate its judgment in Simmons’ case. We remand both
    cases for further proceedings consistent with this opinion.
    It is so ordered.
    Cite as: 556 U. S. ____ (2009)           1
    SOUTER, J., dissenting
    SUPREME COURT OF THE UNITED STATES
    _________________
    No. 07–1209
    _________________
    ERIC K. SHINSEKI, SECRETARY OF VETERANS
    AFFAIRS, PETITIONER v. WOODROW F. SANDERS
    ERIC K. SHINSEKI, SECRETARY OF VETERANS
    AFFAIRS, PETITIONER v. PATRICIA D. SIMMONS
    ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
    APPEALS FOR THE FEDERAL CIRCUIT
    [April 21, 2009]
    JUSTICE SOUTER, with whom JUSTICE STEVENS and
    JUSTICE GINSBURG join, dissenting.
    Federal law requires the Court of Appeals for Veterans
    Claims to “take due account of the rule of prejudicial
    error.” 
    38 U. S. C. §7261
    (b)(2). Under this provision,
    when the Department of Veterans Affairs (VA) fails to
    notify a veteran of the information needed to support his
    benefit claim, as required by 
    38 U. S. C. §5103
    (a), must
    the veteran prove the error harmful, or must the VA prove
    its error harmless? The Federal Circuit held that the VA
    should bear the burden. Sanders v. Nicholson, 
    487 F. 3d 881
     (2007). The Court reverses because the Federal Cir
    cuit’s approach is “complex, rigid, and mandatory,” ante,
    at 9, “imposes an unreasonable evidentiary burden upon
    the VA,” ante, at 10–11, and contradicts the rule in other
    civil and administrative cases by “requir[ing] the VA, not
    the claimant, to explain why the error is harmless,” ante,
    at 11. I respectfully disagree.
    Taking the last point first, the Court assumes that there
    is a standard allocation of the burden of proving harm
    lessness that Congress meant to adopt in directing the
    Veterans Court to “take due account of the rule of prejudi
    2                  SHINSEKI v. SANDERS
    SOUTER, J., dissenting
    cial error.” 
    38 U. S. C. §7261
    (b)(2). But as both the major
    ity and the Government concede, “[t]here are no hard-and
    fast standards governing the allocation of the burden of
    proof in every situation,” Keyes v. School Dist. No. 1, Den
    ver, 
    413 U. S. 189
    , 209 (1973), and courts impose the
    burden of dealing with harmlessness differently in differ
    ent circumstances. As the Court says, the burden is on
    the Government in criminal cases, ante, at 13, and even in
    civil and administrative appeals courts sometimes require
    the party getting the benefit of the error to show its harm
    lessness, depending on the statutory setting or specific
    sort of mistake made, see, e.g., McLouth Steel Prods. Corp.
    v. Thomas, 
    838 F. 2d 1317
    , 1324 (CADC 1988) (declaring
    that imposing the burden of proving harm “on the chal
    lenger is normally inappropriate where the agency has
    completely failed to comply with” notice and comment
    procedures).
    Thus, the question is whether placing the burden of
    persuasion on the veteran is in order under the statutory
    scheme governing the VA. I believe it is not. The VA
    differs from virtually every other agency in being itself
    obliged to help the claimant develop his claim, see, e.g., 38
    U. S. C. §5103A, and a number of other provisions and
    practices of the VA’s administrative and judicial review
    process reflect a congressional policy to favor the veteran,
    see, e.g., §5107(b) (“[T]he Secretary shall give the benefit
    of the doubt to the claimant” whenever “there is an ap
    proximate balance of positive and negative evidence re
    garding any issue material to the determination of a mat
    ter”); §7252(a) (allowing the veteran, but not the
    Secretary, to appeal an adverse decision to the Veterans
    Court). Given Congress’s understandable decision to place
    a thumb on the scale in the veteran’s favor in the course of
    administrative and judicial review of VA decisions, I
    would not remove a comparable benefit in the Veteran’s
    Court based on the ambiguous directive of §7261(b)(2).
    Cite as: 556 U. S. ____ (2009)            3
    SOUTER, J., dissenting
    And even if there were a question in my mind, I would
    come out the same way under our longstanding “rule that
    interpretive doubt is to be resolved in the veteran’s favor.”
    Brown v. Gardner, 
    513 U. S. 115
    , 118 (1994).
    The majority’s other arguments are open to judgment,
    but I do not see that placing the burden of showing harm
    on the VA goes so far as to create a “complex, rigid, and
    mandatory” scheme, ante, at 9, or to impose “an unreason
    able evidentiary burden upon the VA,” ante, at 10–11.
    Under the Federal Circuit’s rule, the VA simply “must
    persuade the reviewing court that the purpose of the
    notice was not frustrated, e.g., by demonstrating: (1) that
    any defect was cured by actual knowledge on the part of
    the claimant, (2) that a reasonable person could be ex
    pected to understand from the notice what was needed, or
    (3) that a benefit could not have been awarded as a matter
    of law.” Sanders, supra, at 889. This gives the VA several
    ways to show that an error was harmless, and the VA has
    been able to shoulder the burden in a number of cases.
    See, e.g., Holmes v. Peake, No. 06–0852, 
    2008 WL 974728
    ,
    *2 (Vet. App., Apr. 3, 2008) (Table) (finding notice error
    harmless because the claimant had “actual knowledge of
    what was required to substantiate” his claim); Clark v.
    Peake, No. 05–2422, 
    2008 WL 852588
    , *4 (Vet. App., Mar.
    24, 2008) (Table) (same).
    The Federal Circuit’s rule thus strikes me as workable
    and in keeping with the statutory scheme governing vet
    erans’ benefits. It has the added virtue of giving the VA a
    strong incentive to comply with its notice obligations,
    obligations “that g[o] to the very essence of the nonadver
    sarial, pro-claimant nature of the VA adjudication system
    . . . by affording a claimant a meaningful opportunity to
    participate effectively in the processing of his or her
    claim.” Mayfield v. Nicholson, 
    19 Vet. App. 103
    , 120–121
    (2005).
    I would affirm the Federal Circuit and respectfully
    dissent.
    

Document Info

Docket Number: 07-1209

Citation Numbers: 173 L. Ed. 2d 532, 129 S. Ct. 1696, 556 U.S. 396, 2009 U.S. LEXIS 3119

Judges: Breyer, Souter, Stevens, Ginsburg

Filed Date: 4/21/2009

Precedential Status: Precedential

Modified Date: 11/15/2024

Authorities (25)

City of Frankfort, Indiana v. Federal Energy Regulatory ... , 678 F.2d 699 ( 1982 )

Market Street Railway Co. v. Railroad Commission of ... , 65 S. Ct. 770 ( 1945 )

Keyes v. School Dist. No. 1, Denver , 93 S. Ct. 2686 ( 1973 )

United States v. Borden Co. , 74 S. Ct. 703 ( 1954 )

United States v. Haggar Apparel Co. , 119 S. Ct. 1392 ( 1999 )

United States v. Fior D'Italia, Inc. , 122 S. Ct. 2117 ( 2002 )

Palmer v. Hoffman , 63 S. Ct. 477 ( 1943 )

Simmons v. Nicholson , 487 F.3d 892 ( 2007 )

Sanders v. Nicholson , 487 F.3d 881 ( 2007 )

Kotteakos v. United States , 66 S. Ct. 1239 ( 1946 )

McLouth Steel Products Corporation v. Lee M. Thomas, ... , 838 F.2d 1317 ( 1988 )

Walters v. National Assn. of Radiation Survivors , 105 S. Ct. 3180 ( 1985 )

O'NEAL v. McAninch , 115 S. Ct. 992 ( 1995 )

Neder v. United States , 119 S. Ct. 1827 ( 1999 )

bar-mk-ranches-robert-redd-heidi-redd-ks-summers-livestock-two-swipe , 994 F.2d 735 ( 1993 )

Panhandle Cooperative Association, Bridgeport, Nebraska v. ... , 771 F.2d 1149 ( 1985 )

City of Camden, New Jersey v. United States Department of ... , 831 F.2d 449 ( 1987 )

Justin Nelson v. Kenneth S. Apfel, Commissioner, Social ... , 131 F.3d 1228 ( 1997 )

national-labor-relations-board-v-seine-and-line-fishermens-union-of-san , 374 F.2d 974 ( 1967 )

United States v. Detroit Timber & Lumber Co. , 26 S. Ct. 282 ( 1906 )

View All Authorities »