Shinseki, Secretary of Veterans Affairs v. Sanders

(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.