Shinseki v. Sanders - Oral Argument - December 08, 2008

Shinseki v. Sanders

Media for Shinseki v. Sanders

Audio Transcription for Opinion Announcement - April 21, 2009 in Shinseki v. Sanders

Audio Transcription for Oral Argument - December 08, 2008 in Shinseki v. Sanders

John G. Roberts, Jr.:

We will hear argument first this morning in Case 07-1209, Peake v. Sanders et al. Mr. Miller.

Eric D. Miller:

Mr. Chief Justice, and may it please the Court.

Congress has directed the Veterans Court to take due account of the rule of prejudicial error in reviewing administrative determinations of veterans benefits.

For four reasons, the court of appeals erred in holding that the Veterans Court should presume the existence of prejudice whenever it finds that the VA has erred in providing notice to a claimant.

First, section 7261, the Veterans Court prejudicial error statute, uses language that is essentially identical to that of the APA's prejudicial error provision.

And when Congress adopted that language in 1988, it was understood to place upon the party challenging an agency's action the burden of showing that any error was prejudicial.

Second, a notice error of the kind at issue here does not have the natural--

Antonin Scalia:

Why do you say that?

That it was understood so?

Because of the Attorney General's commentary on the APA?

Eric D. Miller:

--The principal reason that it was understood is because the uniform practice in the courts of appeals as of 1988 was to place upon challengers to agency action the burden of showing prejudice from the error.

And the Congress was well aware of that, and in particular the Senate Veterans Affairs Committee, in explaining its choice of the rule, cited the Ninth Circuit's decision in Seine & Line Fishermen's Union, which expressly stated that the burden--

John G. Roberts, Jr.:

You basically have four cases in the courts of appeals to support that proposition, right?

Eric D. Miller:

--Well, Your Honor, it's considerably more than that.

And the only -- and the only cases that even suggest -- that lend any support to a contrary rule are in the very different context of notice and comment rulemaking under rule -- under section 553.

And the reason that that's different is really for two reasons, and that is that the -- the interest that section 553 is intended to protect is not the interest of any particular commenter or any particular outcome of the rulemaking.

It's the interest of the public in having the agency's decisionmaking fully informed by all of the relevant comments.

John G. Roberts, Jr.:

Well, but this is -- I mean, it's kind of the -- it's the first notice.

It gets the ball rolling.

I mean, I think it's like you have two teams and you don't tell one of the teams when the game starts, and then you say, well, it doesn't matter because they would have lost anyway, there's no prejudice.

Eric D. Miller:

The reason that in a great many cases there's not going to be prejudice from error of the kind at issue here is that the VA has an informal nonadversarial system that provides multiple layers of review and many opportunities to correct the effect of any official notice error.

And that's illustrated by the procedural history of these cases.

To take Ms. Simmons's case for an example--

Ruth Bader Ginsburg:

Well, can we go back to the question that was first posed?

We have never held that every agency -- you know, agencies come in many sizes and shapes -- that in all cases, the APA places the burden on the appellant or the petitioner.

But this Court has never held that across the board, no matter what agency we are talking about, that's the rule.

Eric D. Miller:

--That's correct.

This Court has not held that.

But Congress was aware that the uniform practice, certainly in agency adjudications in the courts of appeals, was to place the burden on the challengers, and Congress--

John Paul Stevens:

When was Congress aware of this, when the Administrative Procedure Act was passed, you mean?