Mahl v. Principi

ORDER

PER CURIAM:

On December 7, 2000, the Court issued an order granting the Secretary’s November 13, 2000, motion for remand. The July 30, 1999, decision of the Board of Veterans’ Appeals, which denied the appellant’s claim for entitlement to a rating in excess of 10% for post-traumatic stress disorder and for a total disability rating based on individual unemployability, was vacated and the matter remanded as required by the recent enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub.L. No. 106-475,114 Stat. 2096 (Nov. 9, 2000). On December 27, 2000, the appellant filed a motion for reconsideration and for a panel decision, urging the Court to rule on the appellant’s allegations of error which were unrelated to the VCAA.

It has been the practice of this Court from the outset that, as a general rule, when an undoubted error requires that the Court order a remand, the Court will not address other putative errors raised by the appellant that are not necessary in effecting the proposed disposition. In short, if the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand. In Best v. Principi, 15 Vet.App. 18 (2001) (per curiam order), the Court noted that it generally decides cases on the narrowest possible grounds, and therefore is not required to rule upon other allegations of error in effecting a remand resulting from the VCAA’s passage. That order also made clear that a judge may, at his discretion, determine that, while it is not necessary, it may be appropriate to address multiple allegations of error in remanding a case. See also Dunn v. West, 11 Vet.App. 462, 467 (1998) (the Court’s remand of the appellant’s PTSD claim under one theory mooted the remaining theories that would also mandate a remand of that claim); Aronson v. Brown, 7 Vet.App. 153, 155 (1994) (where issue becomes moot, the Court is divested of jurisdiction to consider it).

When this Court has, by single judge or otherwise, broadened its opinion beyond what is required, it has been the exception, not the rule. The Court’s practice of limiting its opinions to the issue necessary to effect a remand is consistent with the jurisdictional statute under which the Court operates. That statute states that “in any action brought under this chapter, the Court of Appeals for Veterans Claims, to the extent necessary to its decision and when presented shall ... (1) decide all questions of law.” 38 U.S.C. § 7261(a) (emphasis added). Of course, within the statutory definition of “to the extent necessary,” there may be circumstances that would cause the Court, in its discretion, to touch upon another issue, whether raised by the appellant or not. However, such matters will be rare and will fall under the rubric of the “Court’s discretion.”

Considering only the issues necessary to the disposition of the case, or, in other words, deciding a case on the narrowest possible grounds, is the tradition in general appellate practice. See, e.g., United States v. Shipsey, 190 F.3d 1081, 1088-89 (9th Cir.1999) (because the court held that the district court erred by constructively amending the theft counts in the indictment, requiring reversal and a remand for a new trial, the court need not reach the appellant’s remaining challenges); Umpleby v. Potter & Brumfield, Inc., 69 F.3d 209, 215 (7th Cir.1995) (“While there were many procedural problems that occurred below, including the arguably erroneous admission of much evidence, we need not reach these issues in light of our decision to remand for a new trial”); United States v. Young, 17 F.3d 1201, 1205 n. 9 (9th Cir.1994) (“Because we find that [the appellant] is entitled to a new trial, we need not reach his claim that the district court abused its discretion in refusing to hear his motion to suppress the evidence found in his truck.... [The appellant] may renew his claim on remand”); Dakota Industries, Inc. v. Ever Best Ltd., 28 F.3d 910, 914 (8th Cir.1994) (“In light of our reversal and order of a new trial, we need not consider [the appellant’s] arguments of other jury instruction and trial errors”).

The statute and cases cited above which counsel judicial restraint are not only good law, but also make good, common sense. The new adjudication ordered by this Court is just that-a new adjudication. It will, necessarily, be conducted in an entirely different context legally and perhaps factually as well. The putative errors that the appellant raised before this Court concerning the “old” adjudication can be reasserted if he still believes that the “old errors” have been perpetuated and are relevant in the context of the new adjudication. The briefs before this Court will, presumably, be available. The adjudicators may then consider these matters for whatever value they may have, in the context of the new adjudication. If the appellant still believes error has been committed, he may then present that issue to this Court by way of an appeal. See Kutscherousky v. West, 12 Vet.App. 369, 372 (1999). The Court will continue the practice it has followed, which is consistent with its jurisdictional statute and appellate practice elsewhere; we will render our decisions on the narrowest possible grounds.

If this Court were to “lay down the law,” as the dissent suggests we should, given the different factual and legal context in which the new adjudication will take place, such an opinion would be nothing more than advisory, amounting to awarding declaratory relief, which we are not authorized to do. Nagler v. Derwinski, 1 Vet.App. 297, 306-07 (1991). Even if we had jurisdiction to consider the appellant’s non-VCAA arguments (but see Aronson, supra ), we must be ever mindful of the “unwisdom of venturing an advisory opinion.” In re Smith, 7 Vet.App. 89, 94 (1994) (J. Steinberg, dissenting); see also Waterhouse v. Principi, 3 Vet.App. 473, 474 (1992) (in order for there to be a case or controversy, the Court “must have the ability to resolve the conflict through the specific relief it provides”).

Judge Steinberg’s insertion of an EAJA rational for broadening our decisions beyond what is necessary to effect a disposition on the merits is also troubling. He would do this by labeling some allegations of error “colorable” and the rest, presumably, “non-colorable.” Leaving aside that such labeling seems to be his own invention with a basis in neither statutory nor case law, it seems most unusual that a court would litigate the merits of a case, even partly, for potential EAJA purposes. In fact, to do so would be to render a decision, at least in part, as to an issue (EAJA) neither “presented” nor “necessary,” to use the words of our jurisdictional statute. Moreover, such an adjudication would trigger two evils. By considering only “colorable” allegations of error, as Judge Steinberg would have us do, our action could and would be construed as an invitation to file an EAJA application, with assured approval, where “colorable” arguments are found or precluding successful EAJA applications where the arguments are found “non-colorable.” Surely it must be clear that in the labeling process which finds certain issues “colorable” (meritorious) and others “non-colorable” (non-meritorious), the Court is actually adjudicating both issues with consequences for both EAJA (assuming that the dicta in Cullens v. Gober, 14 Vet.App. 234 (2001), referred to in the dissent, ever became the law) and, incidentally, for the new adjudication at the administrative level. Our treatment of an issue as “non-colorable” could be construed by an adjudicator as a decision on the merits that would preclude its consideration in the new adjudication. This would be unwarranted meddling in the new adjudication and, insofar as EAJA is concerned, would be an anomalous action for supposedly neutral judges to be taking at a time when there hasn’t even been an EAJA application. The other evil is that it would surely encourage pleadings that were framed more for EAJA purposes rather than for obtaining the underlying relief for the veteran. The EAJA tail would be once again, as happens all too often in this Court, wagging the merits dog.

Upon consideration of the foregoing and the record on appeal, it is

ORDERED, by the single judge, that the appellant’s motion for reconsideration is DENIED. It is further

ORDERED, by the panel, that the appellant’s motion for a panel decision is DENIED.