Hamilton: Constructive Possession in the Context of a Section 1151 Claim

 

Hamilton v. McDonough, case no 22-3726, decided May 23, 2024 comes just two months after the Federal Circuit’s decision in Varad v. McDonough and concerns the doctrine of constructive possession in the context of a section 1151 claim. 

The case concerned a claim for Section 1151 benefits after a Federal Tort Claim Act claim had been filed.  The veteran asked that the file from the administrative FTCA claim be associated with his Section 1151 claim.  The Board acknowledged the administrative FTCA claim and the ultimate settlement of the claim, but denied the 1151 claim and noted the veteran had not submitted any evidence in connection with the administrative FTCA claim.

The veteran argued the FTCA claim file was constructively part of the VA claims file and thus should have been discussed by the Board.  The Secretary argued the entirety of the FTCA claim file was shielded from disclosure to the veteran under the attorney work-product doctrine.

The Court concluded:

“the FTCA claim file satisfies the traditional elements for constructive possession. But the attorney work-product doctrine recognizes that at least some of the information generated by members of the legal profession on behalf of their clients in preparation for litigation is protected from disclosure, and the Privacy Act makes clear that this principle applies even when individuals are seeking Federal records related to themselves. The protections of the work-product doctrine and the Privacy Act are relevant to this case. And yet neither the doctrine nor the Privacy Act grants the Secretary a blanket absolution from disclosure of all documents within a folder labeled "FTCA claim file" based on his own say-so. What they protect from disclosure is specific information rather than classes of documents. Thus, when the Secretary invokes the work-product doctrine or the Privacy Act's related exemption to shield an FTCA claim file from disclosure, the Board must assess what information in that file is protected and what information is not protected.

Unprotected information must be associated with the VA claims file according to the duty to assist. As a rule, as explained below, facts are disclosable, opinions are not. Because the Agency never attempted—even in a manner consistent with the work-product doctrine or the Privacy Act—to associate Mr. Hamilton's FTCA claim file with his VA claims file, the Board failed to ensure that VA satisfied its duty to assist.”

Id. at *2.

This decision is a unique application of the law on constructive possession to a Section 1151 claim.  It also spells out the manner in which the Board should have determined what materials were made a part of the records.  However, it also represents a further use of the constructive possession doctrine to expand what should have been considered by the VA.

Decision by Judge Toth and joined in by Judges Greenberg and Allen. 

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