Frantzis: Board Hearing Before the Person to Decide the Case

Frantzis v. McDonough, Case Number 20-5236, decided June 21, 2022 discusses whether under the AMA a veteran is entitled to a Board hearing before the Board member who will ultimately decide their appeal.

The Court answered the question thus:

“The Court holds that nothing in the AMA or its implementing regulations mandates that the Board member conducting a claimant's Board hearing must ultimately decide the appeal. While there was such a requirement in place under the Legacy Appeals System, when Congress enacted the AMA as the successor to the Legacy Appeals System, Congress removed the statutory language that required the same Board member who conducted a hearing to also participate in the appeal's final determination. Additionally, there is nothing in VA's implementing regulations that creates the purported right appellant seeks to have the Court vindicate. Given that nothing in the relevant statutes or regulations dictates that the Board member who presides at a hearing must render the Board's decision, appellant can only prevail if some other principle (such as the fair process doctrine) imposes that requirement. But we decline to consider whether there is such an extrastatutory or extraregulatory source of the supposed requirement that appellant advances because he did not make such an argument until well into the appeal.”

Thus, it appears the AMA does not require a hearing before the Board member who will make a decision, but that other constitutional concerns, specially the fair process doctrine might require, but the Court refused to consider those issues unless they are initially briefed.

Judge Jaquith wrote a dissent arguing the fair process doctrine generally requires the Board member who holds the hearing to decide the case.  He wrote: “Changing Board members post-hearing—such that the decisionmaker is "assessing credibility based on a second-hand conveyance or a review of a transcript—undermines the claimant's ability to personally impress his credibility upon his factfinder[]." Moreover, "the right to a hearing as a conduit for conveying one's credibility could be rendered meaningless" if the credibility determination is made by a Board member who did not participate in the veteran's hearing. Mr. Frantzis has a "right to be afforded the opportunity to be heard by [the Board member] assigned to adjudicate his appeal."

This decision is shocking and I expect to be appealed to the Federal Circuit.

Decision by Judge Allen and joined in by Judge Falvey.  Dissent by Judge Jaquith.

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