Frantzis: Board Hearing Before the Person to Decide the Case

Frantzis v. McDonough, Case Number 2022-2210, was decided on June 4, 2024 and concerns whether under the AMA a veteran is entitled to a Board hearing before the Board member who will ultimately decide their appeal.

This was an appeal from a panel decision by the Veterans Court which had answered in the negative that noted there was a requirement in the Legacy Appeals system for the Board member who conducted the hearing to decide the case whereas there is nosuch requirement in the AMA.  Judge Jaquith wrote a dissent saying fair process requires the Board member who held a hearing to decide the case because it allows them to properly access the credibility of the witnesses.

The Federal Circuit affirmed the decision agreeing with the Veterans Court stating: “The statutory scheme and its history are clear—the same judge is not required to both conduct the hearing and author the final determination under the AMA.”  Id. at *6.

As for the due process argument, the Court noted “The fair process doctrine is a recognition that due process applies in the claimant process.  For example, we explained the fair process doctrine requires the Board to “provide a claimant with reasonable notice of [new] evidence . . . and a reasonable opportunity for the claimant to respond to it.”  To the extent Mr. Frantzis argues the fair process doctrine creates a procedural right, the argument was not presented below and is thus forfeited.”  Id. at *6.

Thus, it appears the AMA does not require a hearing before the Board member who will make a decision.  However, the Federal Circuit seemed to at least leave a crack in the door to the fair process doctrine argument, but found the argument was forfeited because it was not presented to the Veterans Court.  I imagine some attorney will look for the right Board decision to make these arguments and fully brief the issue and see how the Veteran Court and Federal Circuit responds.

Decision by Chief Judge Moore and joined in by Judges Clevenger and Chen.

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