The Federal Circuit explained that it could review a Veterans Court remand order when the appellant challenged the Veterans Court’s power to order the remand.
April 23, 2024
In Chavez v. McDonough, the Federal Circuit reviewed an order of the Veterans Court that remanded an action for further proceedings. Veterans Court remand orders normally are not immediately appealable. But these orders can be final and thus appealable when they (among other things) involve an argument that the Veterans Court lacked authority to order the remand.
The Veteran’s Appeal in Chavez
Simplifying a bit, Chavez involved a veteran’s disability claim. Although he had initially been given a disability rating of 100%, the Department of Veterans Affairs later changed that rating to 70%. The veteran challenged this reduction before the Board of Veterans’ Appeals, which upheld the reduction.
The veteran then sought further review in the Court of Appeals for Veterans Claims, commonly known as the “Veterans Court.” The veteran contended that the Board relied on improper evidence when upholding the rating reduction. For relief, the veteran asked the Veterans Court to reinstate his 100% rating.
The Veterans Court agreed with the veteran on the merits. But rather than reverse the Board and render judgment (as the veteran had asked), the Veterans Court remanded for further explanation from the Board.
The veteran then sought review in the Federal Circuit. In that appeal, the government argued that the Federal Circuit lacked appellate jurisdiction.
Jurisdiction Over Veterans Court Remands
The Federal Circuit held that it had jurisdiction.
The Federal Circuit began with the general rule that it reviews only the final decisions of the Veterans Court. Remands are not normally not final—they involve further proceedings before the Board of Veterans Appeals. So Federal Circuit review normally must wait until after the further Board proceedings on remand and the subsequent appeal to the Veterans Court.
But the Federal Circuit has developed an exception to the general bar on remand appeals:
[W]e will depart from the strict rule of finality when the Court of Appeals for Veterans Claims has remanded for further proceedings only if three conditions are satisfied: (1) there must have been a clear and final decision of a legal issue that (a) is separate from the remand proceedings, (b) will directly govern the remand proceedings or, (c) if reversed by this court, would render the remand proceedings unnecessary; (2) the resolution of the legal issues must adversely affect the party seeking review; and, (3) there must be a substantial risk that the decision would not survive a remand, i.e., that the remand proceeding may moot the issue.
The appeal in Chavez satisfied all three requirements.
As to the first, the Federal Circuit concluded that the appeal involved a “clear and final decision on a legal issue”: whether the Veterans Court had authority to remand the action. The veteran did not argue only that the Board erred in its application of the law to the facts of his case when it remanded his case to the Board. He instead argued that the Veterans Court erred in not reversing the Board outright and entering judgment in his favor. That is, he argued that the Veterans Court was legally compelled to rule for him and thus legally barred from remanding the case. That was a legal argument. And the Veterans Court had “squarely rejected [the] argument that [it] lacks the authority to remand under those circumstances.”
The appeal also satisfied the second and third requirements. The Veterans Court decision was adverse, as reversal of that court would grant the veteran the relief that he sought. And the veteran’s argument—that he is legally entitled to win without a remand—would be mooted by a remand.
Chavez v. McDonough, 2024 WL 1685140 (Fed. Cir. Apr. 19, 2024), available at the Federal Circuit and Westlaw