Forsythe v. McDonough, Brief of Separation of Powers Clinic as Amicus Curiae in Support of Petitioner

Abstract

The Court should grant the petition for a writ of certiorari and reverse the decision below, which held harmless the Department of Veterans Affairs’ (VA) violation of its own lawful regulations imposing a certain timing for notice regarding information needed to substantiate veterans’ disability claims.

The Federal Circuit’s view that such a violation is necessarily harmless is in significant tension with this Court’s 2009 decision in Shinseki, which addressed the very same VA regulation and held that courts should not apply rigid rules or frameworks when evaluating whether an agency’s failure to comply with its own regulations was prejudicial.

The decision below also highlights an apparent conflict between Shinseki and several of this Court’s earlier cases holding that courts are authorized to grant judicial relief with no showing of prejudice when an agency violates certain types of valid regulations. The opinion in Shinseki did not address those earlier cases, and the lower courts continue to follow them, but the authorization of relief without any showing of prejudice is difficult, if not impossible, to square with Shinseki’s rejection of rigid rules for harmlessness.

Because only this Court can say whether its own prior decisions have been overruled, the Court should grant the petition and address whether its pre-Shinseki cases remain good law.

Keywords: Separation of Powers, Regulation, Veterans Affairs, Judicial Review

JEL Classification: K1, K40, K23