August 2019 Monthly Brief

22 Aug 2019 In This Issue: Managing Director's Message 2019 Pro Bono Mission Partner Reception TVC Volunteer Inspiring Pro Bono - Caitlin Tweed & Ryan Eletto New Developments In Veterans Law: The Kisor Problem Notable News

Managing Director's Message We have some exciting news to share with you about the TVC Discharge Upgrade Program SM. The Disabled Americans Veterans Charitable Service Trust has committed to sponsor our program with a grant for the next four years.

This grant will fully fund the program, allow us to expand our reach and impact the lives of many more veterans who struggle with the loss of critical benefits and personal dignity.

The Veterans Consortium Discharge Upgrade Program was created to meet the growing needs of the veteran community for assistance with discharge upgrade applications to secure benefits eligibility. TVC provides nationwide pro bono legal representation to veterans with Other Than Honorable Discharges due to conduct related to Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injur y (TBI), Militar y Sexual Trauma (MST), and other behavioral health issues resulting from militar y service. Since September 2017, TVC has served over 2,000 men and women.

We are proud to count The Disabled Americans Veterans Charitable Ser vice Trust as a critical partner in our mission of access to justice for veterans. With their generous support we look for ward to even more success, expansion of services, and greater impact.

Jim Carlsen Managing Director

NOVEMBER

6

Wednesday

2019 Pro Bono Mission Partner Reception Please Mark Your Calendars!

More Info

Mark your calendars for the 2019 TVC Mission Partner Reception. Join us as we celebrate members of our TVC National Volunteer Corps, Mission Partners and supporters who are making a tangible difference in the lives of veterans in need.

During this special evening, we will recognize regional and national leadership as well as introduce some new initiatives. Stay tuned for our upcoming announcement on the awardees!

We’re looking forward to sharing this inspiring evening with you so please save the date and be sure to join us.

Please consider a sponsorship. Your investment will make it possible for us to support and enhance our services to help veterans in need. For information on sponsorship opportunities, please click here.

TVC Volunteer Inspiring Pro Bono (VIP)

Caitlin Tweed, Esq.

Associate, Bracewell LLP TVC National Volunteer CorpsSM

Ryan M. Eletto, Esq.

Associate, Bracewell LLP TVC National Volunteer CorpsSM

Caitlin Tweed’s involvement with The Veterans Consortium (TVC) began in 2016 in quite an understated way. One of her colleagues was leaving Washington, DC Bracewell LLP office for another opportunity and asked her to take over his pro bono case. As a result of that simple handoff, Tweed has embraced veterans law work, earning remands in cases and coordinating TVC’s Volunteer training for other attorneys at her firm.

Her Bracewell colleague, Ryan Eletto, was introduced to veterans law through a clerkship at the United States Court of Appeals for Veterans Claims. When he went into private practice at Bracewell, Eletto was happy to utilize his clerkship experience within the firm’s pro bono program. He has successfully navigated a case to the remand stage and helped orchestrate the training by TVC of other Bracewell lawyers who are now ready to take cases.

For their efforts to help grow the TVC pro bono program at Bracewell and for their exemplary service to veterans through their own representation, Tweed and Eletto have been selected as The Veterans Consortium Volunteers Inspiring Pro Bono for August 2019.

TVC Volunteer Inspiring Pro Bono (VIP) “Working with Caitlin and Ryan has been a true pleasure,” says Courtney Smith, TVC Director of Outreach and Education. “Their energy, enthusiasm and effort in setting up a training session at their law firm takes their personal commitments to taking on veterans cases and multiplies that exponentially. More attorneys taking on cases means more of our veterans are being served and receiving the benefits they deserve. We can’t thank Ryan and Caitlin enough for being catalysts to make this happen.”

Eletto, 30, grew up in Southern California, about an hour northwest of Los Angeles. After graduating from the University of Southern California, he decided to venture to the east coast for law school at the University of North Carolina, Chapel Hill. His clerkship brought him to the nation’s capital and his practice now involves environmental regulatory issues, litigation and investigation matters.

His current pro bono case involves a veteran who suffered a knee injury in 1968, while serving in the Army. The veteran sought benefits for this injury in 2010 after more than 40 years of suffering with the injury.

“He was denied service connection due in part to the long lapse between his inservice injury and when he decided to seek benefits,” Eletto explains, but people who knew the veteran before and after his injury attest that he has suffered from these symptoms since he served.

Tweed, 31, a native of Houston, Texas, did her undergraduate work at the University of Chicago and received her juris doctor from American University, Washington College of Law. She also does regulatory work for Bracewell, mostly relating to oil and gas pipelines. She has found her work with TVC to be great experience for her, as it is more litigation focused.

But beyond the experience, Tweed describes the “great feeling to get remands for veterans who may not have had a fair go-round the first time."

“There’s something about the appeals process I like,” Tweed continues. “It forces the government to do their part by telling the Board to do a better job with their decisions. It’s giving back to the whole community by making sure they are doing their job right.”

Eletto, who lives in Washington, DC and enjoys playing soccer in his free time, credits Katy Clemens, the mentor TVC assigned to him, for her assistance on his cases.

“She’s been incredibly helpful, a wealth of knowledge and ver y generous with her time,” he says.

Tweed also lives in Washington, DC and participates in a community chorus. She and her husband are expecting their first child in the next few weeks.

New Developments in Veterans Law The Kisor Problem: We, The People, Are Failing Our Veterans

By Ty Collier, TVC Staff Attorney

Kisor v. Wilkie was a small win for Mr. Kisor and a big loss for the Constitution. Yet even “small win” overstates. More than being remarkable for its restraint, the Supreme Court’s opinion in Kisor is barely favorable in its result, if at all. Worse, it further entrenches into jurisprudence the languid will of the federal courts. Worse still, the opinion reveals a lethargy among the branches of government in veterans’ rights.

In 1982, Mr. Kisor, a Marine Vietnam War veteran, claimed benefits for his combat-related post-traumatic stress. In 1983 a Regional Office (RO) denied Mr. Kisor’s claim on grounds that the veteran had not been diagnosed with posttraumatic stress disorder. The law provided, in 1983, that VA decisions “shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision.” This is the rule of finality.

Over 20 years later, in 2006, Mr. Kisor sought to “reopen” his claim based on new and material evidence. As new evidence, Mr. Kisor submitted proof of a diagnosis of post-traumatic stress disorder and official service department records substantiating his combat service in Vietnam. This time, and in a true win for Mr. Kisor, the decisionmaker reopened the claim and granted service connection. However, the RO established the effective date as June 5th, 2006, the date of the claim to reopen, not December 1982, the date of the original claim.

Mr. Kisor appealed to the Board of Veterans Appeals for the earlier effective date, but, in 2014, the Board affirmed the RO’s decision, having found that “the effective date assigned was the earliest allowable effective date due to the finality of the May 1983 rating decision.” Here was the rule of finality at work.

The Board also considered whether the new service department records entitled Mr. Kisor to an earlier effective date under another applicable regulation. That regulation allowed for assignment of a retroactive effective date “if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim.” However, the Board found that the records were not relevant.

On appeal after appeal, the Court of Appeals for Veterans Claims and the Court of Appeals for the Federal Circuit affirmed the VA’s decision. Of note, the Federal Circuit addressed the issue of the regulation’s meaning of “relevant.”

The circuit court found that the word in context was ambiguous and its meaning was not readily ascertainable. Then — referring to Supreme Court precedential opinions including Auer and Seminole Rock — the circuit court expressly deferred to the VA’s interpretation. Thus, in a decision of September 2017, the Federal Circuit decided against Mr. Kisor.

Mr. Kisor, through counsel, sought Supreme Court review, asking whether the Supreme Court should overturn [the opinion used “overrule”] Auer and Seminole Rock. The Supreme Court agreed to review the case on that question. In the end, although declining to overturn Auer and Seminole Rock, the Supreme Court vacated and remanded the Federal Circuit’s decision.

Others have explained why the Supreme Court’s opinion in Kisor is remarkable. In addition to Barthold and Andrews [authors of the “small win” post alluded to above], scholar Peter J. Wallison has also questioned the opinion. In a Wall Street Journal op-ed on June 30th, Wallison drew attention to the contrasts in Justice Elena Kagan’s majority opinion and Justice Neil Gorsuch’s concurring opinion. Among his obser vations, and along the lines of Justice Gorsuch’s rationale, Wallison noted that “A requirement that the judiciar y defer to the executive’s interpretation of law may not be consistent with [the separation of powers].”

There is more. Wallison’s query (in print as Is a Judge’s Job to Defer?) answered in the negative — and no doubt Wallison would have it answered in the negative — stands out as rhetoric which encapsulates premises outlined in his book, Judicial Fortitude. In a review of Judicial Fortitude, scholar Yuval Levin calls out the legislature to stand alongside the judiciary as complicit in the Kisor problem: [Fellow conser vatives] emphasize the hyperactivity of the executive and judicial branches, and these are certainly part of the problem. But hiding in plain sight is a deeper cause: the willful underactivity of the legislative branch. In an effort to avoid hard choices and shirk responsibility, Congress enacts vague statutes that express broad goals, empower executive agencies to fill in the practical details, and leave courts to clean up the ensuing mess. The result can look like executive overreach and judicial activism, but the root of the problem is legislative dereliction.

Levin goes on to say, “The particular crisis we now face can be hard to perceive because it takes the form of a delegation of legislative authority to administrative agencies. But it is no less a deformation of the system, because the courts acquiesce to this delegation.”

Yes, Mr. Kisor’s case is an example of the “rule of finality” at work. Yet the “rule” of finality relates back to a longstanding law drawn up by Congress and signed by the President; an on-point example of the legislature’s pell-mell delegation of lawmaking power.

In the worst days of the Depression, the 73rd Congress passed a series of emergency bills, the first of FDR’s new deal framework . One was the socalled Economy Act of 1933. As a VFW veterans’ rights advocate observed in 1936: “With one stroke of the pen, our lawmakers suddenly decided that 500,000 World War [One] veterans, suffering from disabilities that made it impossible for them to work even if they could find employment, would have to shift for themselves.” [The advocate? Former Marine Major General Smedley Butler, two-time recipient of the Congressional Medal of Honor.] In the end, “Despite all the predictions of panic and calamities, the reduction in veteran expenditures was the only major step taken to reduce the costs of the federal government.”

It gets worse. Among its provisions, the Economy Act also said, one, “the President is hereby authorized to prescribe by regulation the minimum degrees of disability ... if any, as in his judgment should be recognized and prescribe the rate of pension payable for each;” and two, “All decisions rendered by the Administrator of Veterans’ Affairs under the provisions of this title, or the regulations issued pursuant thereto, shall be final and conclusive on all questions of law and fact, and no other official or court of the United States shall have jurisdiction to review . . . any such decision.” This was the rule of finality, today “substantially unaltered” since 1933.

Here Congress delegated to the President the power not only to make laws but also to decide disputes as to laws applied. No surprise then that there were those who thought to object. One among them was Congressman Everett Dirksen. In a letter to fellow Congressman Ralph Warren in March of 1933, of the law’s giving to the President the power to prescribe degrees of disability and rates of pensions, Dirksen said: “Here then is a first[-]class dictatorship conferred on the President.” Of the rule of finality, Dirksen said: Here then is a usurpation of judicial power that stops any veteran from taking his case to court if he believes that he is not receiving fair treatment. Yet the Congress voted to take away from a defender of the flag, the right to go into court if he so sees fit. What do you think of bartering away so sacred a right?

Apparently, the House thought well of it, pushing the bill through on a take-itor-leave-it basis — no amendments, no arguments — by a vote of 266 to 138 (Dirksen voted against).

This was 1933. It took well over 50 years to change. The Veterans Judicial Review Act of 1988 opened the doors to judicial review of veterans’ claims, albeit slowly. Still, with 2020 in sight, the Kisor case is yet another application of the rule of finality as a bar to judicial review — all else is pretext.

And this not least because of the judiciar y’s lack of will but also because of the lack of will of the whole of government.

As Levin obser ves, Wallison’s title alludes to Federalist 78, in which Alexander Hamilton argued for “an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution.” As Barthold and Andrews observe, “The separation of powers would, James Madison thought, spur competition among the government’s three branches.”

Thus considered, the obser vations of Barthold, Andrews, Wallison, and Levin, are at once cacophony and chorus, a séance to summon Hamilton and Madison. The people, then, might be reminded of the Pacificus-Helvidius debates around 1793. [Those who have seen the play Hamilton might remember Washington and Hamilton’s lines on “neutrality” and “Britain and France on the verge of war,” Act II, One Last Time.] The correlation would be appropriate: Veterans’ rights are an extension of the government’s war powers.

Still, even today veterans’ rights remain relegated to afterthoughts, ever subject to the will and whims of the political branches.

As Barthold and Andrews note, “the system [M adison] and the other Founders devised is (and always will be) vulnerable to subversion by ideologically aligned judges, legislators and bureaucrats.” Thus, Madison believed, “Institutional constraints ... cannot be relied upon absent a body politic possessed of civic virtue.” This is the principle, no doubt, that impelled Jon Stewart’s June 11th admonishment of Congress on behalf of 9/11 first responders.

Critics’ obser vations are apt. Yet they do not go far enough to expose the true nature of the Kisor problem: we, the people, are failing our veterans. It is up to the people to plead their causes. Judicial fortitude is not enough to rein in the administrative state for the sake of veterans’ rights. What is needed is fortitude in advocacy.

Welcome New Paralegal: Dee Wallace

Please join us in welcoming Dee Wallace, our new paralegal, to The Veterans Consortium!

Prior to joining TVC, Dee was the Senior National Ser vice Officer for Vietnam Veterans of America (VVA. In that role, Dee handled all of the DC, MD, and VA initial and supplemental claims and appeals.

Dee works closely with Danica Gonzalves supporting our Discharge Upgrade Program, reviewing eligibility and providing legal assistance.

"I'm happy to join the TVC team and to continue my work helping veterans obtain the benefits they've earned and deserve," says Dee. She is originally from Brooklyn, NY and moved to the DMV area, where she found purposeful, fulfilling work at VVA. She hopes to continue that work at TVC and we are happy to have her!

NOTABLE NEWS Farewell to our David Isbell Intern: Laura Grasso I couldn’t be more thrilled about the experience I’ve had at TVC this summer. Coming from a background in Veterans Law that was limited mostly to representing veterans at the VA Regional Office level, working at TVC vastly expanded my knowledge to include litigation at the appellate level. I became deeply familiarized with parts of Veterans Law so new to me in just two months.

I attribute this to the culture at TVC—everyone in the office is so ready and willing to answer questions and help anyone out when asked. The extremely talented and knowledgeable attorneys on staff were remarkably skilled at guiding me in the right direction while simultaneously giving me the autonomy necessary to learn.

The atmosphere at TVC is truly approachable, responsive, and collaborative, which makes for a wonderful result: a staff of highly skilled people dedicated to providing first-class representation to veterans. I am so thankful to have been part of such a brilliant team!

Want to apply for the 2020 David Isbell Summer Internship?

Send a cover letter, resume, unofficial law school transcript, and writing sample to Courtney Smith, Director of Volunteer Outreach & Education, at: Courtney.Smith@vetsprobono.org Click Here To Apply

Appellate Advocacy before the U. S. Court of Appeals for Veterans Claims Regional Training in Austin, TX On 9 July 2019, TVC traveled to Austin, TX to train local attorneys on Appellate Advocacy before the U.S. Court of Appeals for Veterans Claims.

The training was attended by over 30 attorneys seeking to help our nation's defenders. We would like to extend a sincere thank you to the Austin Chamber, the Austin Intellectual Property Law Association and Baker Botts L. L. P. for sponsoring this event.

WELCOME TO THE NEWEST MEMBERS OF OUR TVC NATIONAL VOLUNTEER CORPS!

TVC Discharge Upgrade Clinic at the ​Lebanon VA Medical Center

TVC Equal Justice Works Fellow, Danica Gonzalves, visited the Lebanon, PA VA Medical Center on 24 July to hold a discharge upgrade clinic. The event, hosted and sponsored by the Lebanon VAMC, was also staffed by the Pennsylvania Bar Association.

Even with the rural location, over twenty veterans were served. TVC would like to thank the Lebanon VA Medical Center for organizing and hosting and the PA Bar for staffing the event.

Available Pro Bono CAVC Cases for ​ ​ ​ our current ​ ​TVC National Volunteer CorpsSM Click below to view our list of Available Pro Bono Cases in need of representation by a volunteer attorney. *Note: you must be a current volunteer who has taken our training and has been approved as a member on our website in order to log in and view the available cases.

Interested in Sponsoring a Regional Training?

Partner with us and sponsor a U.S. Court of Appeals for Veterans Claims Appellate Advocacy training.

CLICK HERE

For assistance, email volunteer@vetsprobono.org

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