Groves v. McDonough

Case: 21-2081 Document: 41 Page: 1 Filed: 05/17/2022

United States Court of Appeals
for the Federal Circuit
______________________

GENE S. GROVES,
Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________

2021-2081
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-3084, Chief Judge Margaret C.
Bartley, Judge Amanda L. Meredith, Judge Joseph L.
Falvey, Jr.
______________________

Decided: May 17, 2022
______________________

GENE S. GROVES, Shafter, TX, pro se.

JOSEPH ALAN PIXLEY, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.
MCCARTHY.

CAROLINE LOURGOS, Kirkland & Ellis LLP, Chicago, IL,
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2 GROVES v. MCDONOUGH

argued for amici curiae Jason M. Wilcox, Caroline Lourgos.
Also represented by JASON M. WILCOX, Washington, DC.
______________________

Before MOORE, Chief Judge, LOURIE and DYK, Circuit
Judges.
DYK, Circuit Judge.
Gene S. Groves appeals from a decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) affirming a Board of Veterans’ Appeals (“Board”)
decision denying Mr. Groves entitlement to Department of
Veterans Affairs (“VA”) Vocational Rehabilitation and Em-
ployment (“VRE”) benefits. See Groves v. McDonough, 33
Vet. App. 368 (2021) (“Decision”). Because we find that the
Veterans Court legally erred in finding that the Board was
compelled to grant Mr. Groves an automatic indefinite stay
of proceedings, we vacate and remand.
BACKGROUND
Mr. Groves served in the U.S. Army on active duty from
January 1970 to August 1971, including service in Vi-
etnam. In October 1990, a VA regional office (“RO”)
awarded Mr. Groves benefits for post-traumatic stress dis-
order, shell fragment wounds, and a nerve injury. In Au-
gust 1998, Mr. Groves sought education benefits through
the VA’s VRE program, under Chapter 31, Title 38, of the
U.S. Code. 1 A veteran requesting services under Chapter

1 The Vocational Rehabilitation and Employment
(subsequently renamed “Veteran Readiness and Employ-
ment”) program is intended to “provide for all services and
assistance necessary to enable veterans with service-con-
nected disabilities to achieve maximum independence in
daily living and, to the maximum extent feasible, to become
employable and to obtain and maintain suitable employ-
ment.” 38 U.S.C. § 3100; 38 C.F.R. §§ 21.1(a), 21.70.
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GROVES v. MCDONOUGH 3

31 must, among other responsibilities, conform to proce-
dures established by the VA governing pursuit of a rehabil-
itation plan, including enrollment in a course and
cooperation with VA staff in carrying out an initial evalua-
tion. See 38 C.F.R. § 21.362(c). Mr. Groves never attended
the initial VRE evaluation—due at least in part to the iso-
lated nature of his town and his asserted inability to
travel—notwithstanding the VA counseling officer’s at-
tempts to accommodate Mr. Groves over a period of years.
In December 2000, Mr. Groves appeared at a VA Voca-
tional Rehabilitation Office and delivered a document to
his counselor stating that the “President [had] arranged for
[his] Vocational Rehabilitation needs to be taken care of
away from the El-Paso VA facility, [such that the counselor
could] close his files.” S.A. 40. Mr. Groves informed the
rehabilitation counselor that he saw “no reason to meet” at
that time. Id.
Thereafter, the VA notified Mr. Groves “that all action
on his claim for VRE benefits had been suspended and that
his claim had been placed in discontinued status, due to his
failure to complete the required evaluation.” Id. Mr.
Groves reapplied for VRE benefits in February 2001, but
again “appear[ed] . . . not willing to undergo a vocational
evaluation to assess his vocational needs,” according to his
counselor. S.A. 41. In April 2001, the VA again placed Mr.
Groves’s claim in “discontinued” status and notified him
that VRE services could not be provided until he completed
the required counseling. S.A. 29. Mr. Groves filed a Notice
of Disagreement in response to the VA’s decision on his
claim.
In December 2005, the Board denied Mr. Groves enti-
tlement to VRE benefits based upon his failure to cooper-
ate. On appeal, the Veterans Court vacated the Board
decision and remanded the case for the Board to address
whether the VA had complied with various regulatory re-
quirements before denying VRE services to Mr. Groves. In
June 2012, while Mr. Groves’s claim was still being
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4 GROVES v. MCDONOUGH

considered by the Board, Mr. Groves sent the VA a letter
in which he stated that he “enjoin[ed] the RO and [Board]
from further action . . . regarding the [VRE] claims due to
the destruction of records[] and repeated [c]onstitutional
and due process violations.” S.A. 2–3.
The Board determined that the notice from Mr. Groves
did not constitute a withdrawal of the appeal, and in Jan-
uary 2013, it remanded his VRE claim to the RO for proper
notice to Mr. Groves and to schedule an initial VRE evalu-
ation. The RO made repeated attempts to schedule Mr.
Groves for his initial counseling, with no success. In Octo-
ber 2016, Mr. Groves sent another letter to the VA, stating
that he was “enjoining the agency ‘from any further adju-
dication of his claims.’” S.A. 4 (citation omitted). Therein,
he quoted the Veterans Court’s decision in Hamilton v.
Brown, 4 Vet. App. 528, 544 (1993) (en banc), stating that
“where . . . the claimant expressly indicates an intent that
adjudication of certain specific claims not proceed at a cer-
tain point in time, neither the RO nor the Board has au-
thority to adjudicate those specific claims . . . .” Appellant’s
Mot. to Suppl. R. at 1, ECF No. 38. However, Mr. Groves
provided no reason as to why he required additional time.
Id. 2 In a November 2016 decision, the Board acknowledged

2 In his supplemental brief, Mr. Groves appears to
argue that a stay is necessary because the VA has not acted
on his request for equitable relief. See Groves Suppl. Br. at
8–10, ECF No. 24. Pursuant to 38 U.S.C. § 503(a), equita-
ble relief may be available if the Secretary of the VA deter-
mines that a veteran has been denied benefits due to an
administrative error. It is within the VA’s discretion to
postpone resolution of a veteran’s request for equitable re-
lief pending appeal. See Burris v. Wilkie, 888 F.3d 1352,
1358–59 (Fed. Cir. 2018); see also, e.g., Alford v.
McDonough, Case No. 2021-2029, 2022 WL 1097362, at *1
(Fed. Cir. Apr. 13, 2022) (non-precedential) (observing that
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GROVES v. MCDONOUGH 5

Mr. Groves’s letter but again determined that it did not
constitute a withdrawal of the appeal. The Board then re-
manded the VRE claim for the RO to issue a Supplemental
Statement of the Case. In March 2017, the supplemental
statement issued, informing Mr. Groves that “the claim re-
mained denied[] and identif[ying] the evidence considered
in reaching this determination.” S.A. 42.
In July 2017, on appeal from the remand decision, the
Board denied Mr. Groves entitlement to VRE benefits. Alt-
hough the Board acknowledged Mr. Groves’s “numerous
motions to enjoin the Board from issuing a decision with
regard to the VRE claim,” it found those notices did “not
constitute[] withdrawal[s] of the appeal, such that there
[was] no basis for the Board to not proceed with its appel-
late review of [his] claim.” S.A. 33. The Board proceeded
to the merits and ultimately upheld the RO determination
because “the preponderance of the evidence establish[ed]
that [Mr. Groves’s] claim for VRE services was placed in a
discontinued status due to his failure to maintain satisfac-
tory conduct or cooperation.” S.A. 44.
Mr. Groves appealed to the Veterans Court, and in a
single-judge decision issued on August 29, 2019, the Veter-
ans Court affirmed the Board. Thereafter, the Veterans
Court granted Mr. Groves’s request for panel review “for
the purposes of determining the effect, if any of a claimant’s
written request to VA that it refrain from adjudicating his
or her claim.” S.A. 1–2. The court withdrew the prior sin-
gle-judge memorandum decision and sought briefing from
amici curiae. Both amici argued that the Veterans Court’s
decision in Hamilton, 4 Vet. App. 528 gives a veteran the

the Secretary stayed consideration of veteran’s request for
equitable relief pending appeal of the discontinuation of his
VRE benefits).
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6 GROVES v. MCDONOUGH

right to automatically pause adjudication of his or her
claims.
On March 25, 2021, the Veterans Court issued a panel
decision affirming the Board. The court found that the
Board lacked authority to adjudicate Mr. Groves’s appeal
of the RO decision under Hamilton, which it read as requir-
ing an automatic stay when requested by a veteran. How-
ever, the court found any such error was harmless based
on the record. Decision, 33 Vet. App. at 379–80. In a con-
curring opinion, Chief Judge Bartley agreed with the
panel’s result but not its reasoning. Id. at 383–84. She
disagreed with the majority’s interpretation of Hamilton,
observing that “Hamilton did not create a procedural tool
that allows claimants to indefinitely pause the VA adjudi-
cation process at will.” Id.
Mr. Groves now appeals to this court. Our jurisdiction
to review Veterans Court decisions is generally limited to
questions of law, which we review de novo. 38 U.S.C.
§ 7292(d)(1); Willsey v. Peake, 535 F.3d 1368, 1372 (Fed.
Cir. 2008). We appointed amicus curiae in support of Mr.
Groves’s position, invited supplemental briefing, and held
oral argument on April 19, 2022.
DISCUSSION
Mr. Groves argues that the Veterans Court erred in af-
firming the Board’s decision because the Board was re-
quired to grant him an indefinite stay of proceedings under
Hamilton. The Veterans Court agreed with Mr. Groves
that, under Hamilton, a stay is automatically required
when requested by a veteran and that the Board therefore
erred by not granting Mr. Groves a stay. The court never-
theless affirmed the Board’s decision, finding the Board’s
error was harmless because “neither [Mr. Groves] [n]or
Amici explain[ed] how he was harmed by the Board’s adju-
dication of his VRE claim.” Decision, 33 Vet. App. at 380.
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GROVES v. MCDONOUGH 7

We hold that the Veterans Court erred as a matter of
law in finding that the Board was automatically required
to grant Mr. Groves a stay, and it instead should have de-
termined whether Mr. Groves had established good cause
for a stay and, if so, the appropriate duration and condi-
tions of the stay. We remand to the Veterans Court to re-
consider the question of the stay under the proper standard
and to readdress the harmless error question.
I
The only authority the Veterans Court cites for the
proposition that the agency must suspend the appeal pro-
cess upon request is Hamilton. See Decision, 33 Vet. App.
at 378–79. Setting aside the fact that Hamilton is not bind-
ing on this court, we do not read Hamilton as compelling
the agency to automatically grant a stay of proceedings.
That case involved a scenario in which the appellant chose
not to proceed with an appeal of three claims (osteoporosis,
osteomyelitis, and premature aging) in addition to his
then-pending appeal of two claims (for lung cancer and
Hodgkin’s disease). The veteran did not request that the
agency suspend actions on the appealed claims, as occurred
here. See Hamilton, 4 Vet. App. at 543. Rather, he in-
formed the agency that he wished to proceed at that time
only on the two appealed claims. Nevertheless, the RO
later issued a decision denying all five claims. On appeal,
the Veterans Court acknowledged that “the Board and the
RO [must] adjudicate all claims reasonably raised by the
claimant up until its decision,” but held—as “a corollary of
that rule”—where “the claimant expressly indicates an in-
tent that adjudication of certain specific claims not proceed
at a certain point in time, neither the RO nor [the Board]
has authority to adjudicate those specific claims, absent a
subsequent request or authorization from the claimant.”
Id. at 544.

On its face, Hamilton does not involve the propriety of
stays on appealed claims, but rather holds that the Board
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8 GROVES v. MCDONOUGH

cannot treat an appeal as covering claims not appealed by
the veteran. Id. To the extent that language in Hamilton
can be read to require an automatic stay of proceedings
upon request, we conclude that any such rule is neither re-
quired nor appropriate. Allowing appellants to automati-
cally stay proceedings would be inconsistent with the
statutory scheme, which is replete with measures designed
to facilitate the timely adjudication of veterans’ appeals.
Section 7107 obligates the Board to review cases on appeal
“in regular order according to its place on the docket,” 38
U.S.C. § 7107(a)(4), and other provisions place time limita-
tions on claimants. For example, a claimant has one year
to furnish information and evidence upon receipt of notice
of a deficient claim, see 38 U.S.C. § 5103(b)(1); 38 C.F.R.
§ 21.32(c), and claimants have no more than one year fol-
lowing notice of an RO decision to initiate an appeal of that
decision to the Board, see 38 U.S.C. § 7105(b)(1)(A). While
the VA regulations provide that the proceedings may be left
open to acquire additional evidence, see, e.g., 38 C.F.R.
§ 20.605, a requirement to indefinitely stay proceedings is
antithetical to the interests of prompt adjudication.

An automatic stay also would be inconsistent with or-
dinary principles of judicial administration. To be sure, as
in any proceeding before a tribunal or a court, a veteran
may request a temporary stay with a showing of good
cause. As the Supreme Court stated in Landis v. North
American Co., 299 U.S. 248, 254 (1936), “the power to stay
proceedings is incidental to the power inherent in every
court to control the disposition of the causes on its docket
with economy of time and effort for itself, for counsel, and
for litigants.” It is within the sound discretion of the tribu-
nal to grant or deny a request to stay proceedings. See, e.g.,
Cherokee Nation of Okla. v. United States, 124 F.3d 1413,
1416 (Fed. Cir. 1997) (“When and how to stay proceedings
is within the sound discretion of the trial court.” (citing
Landis, 299 U.S. at 254–55)); see also Rhines v. Weber, 544
U.S. 269, 276 (2005) (“District courts do ordinarily have
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GROVES v. MCDONOUGH 9

authority to issue stays, where such a stay would be a
proper exercise of discretion.” (internal citations omitted)).

But a “court’s discretion [to stay proceedings] is not . . .
without bounds,” Cherokee Nation, 124 F.3d at 1416 (citing
Hendler v. United States, 952 F.2d 1364, 1380 (Fed. Cir.
1991)), and “[a] stay so extensive that it is ‘immoderate or
indefinite’ may be an abuse of discretion,” id. (citing Lan-
dis, 299 U.S. at 257); see also Gould v. Control Laser Corp.,
705 F.2d 1340, 1341 (Fed. Cir. 1983) (acknowledging that
a “protracted or indefinite” stay may be “an abuse of dis-
cretion”). “In deciding to stay proceedings indefinitely,” we
have held, there must be a “pressing need” for the stay, and
the tribunal must “balance [the] interests favoring a stay”
against opposing interests. Cherokee Nation, 124 F.3d at
1416. “Overarching this balancing is the court’s para-
mount obligation to exercise jurisdiction timely in cases
properly before it.” Id.

We see no reason to treat the Board differently than
any other tribunal in that it has “broad authority” to man-
age the activities of its docket. Ramsey v. Nicholson, 20
Vet. App. 16, 28 (2006). 3 While proceedings before the
Board are denominated appeals from an RO, they are in
fact much more like trial court proceedings, see, e.g., De-
loach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013)
(“The evaluation and weighing of evidence are factual de-
terminations committed to the discretion of the [Board as]
factfinder.”); see also Gilbert v. Derwinski, 1 Vet. App. 49,
52 (1990) (explaining that the Board is an “administrative
tribunal [that] functions as a factfinder in a manner simi-
lar to that of a trial court”), and therefore we think our
cases involving stays of trial court proceedings generally

3 As recognized in Ramsey, the Board may stay cases
on its own accord “for well-articulated reasons of sound
case management.” 20 Vet. App. at 28.
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10 GROVES v. MCDONOUGH

apply to proceedings before the Board. In addressing the
question of a stay, it is important to take into account that
veterans are often pro se litigants before the Board who
may lack a complete understanding of legal standards and
therefore “[a] liberal and sympathetic reading of [argu-
ments] is necessary.” Comer v. Peake, 552 F.3d 1362, 1368
(Fed. Cir. 2009) (discussing 38 C.F.R. § 20.02, which re-
quires the Board to “construe an appellant’s arguments ‘in
a liberal manner for purposes of determining whether they
raise an issue on appeal’”); see also Hughes v. Rowe, 449
U.S. 5, 15 (1980) (holding that pleadings drafted by pro se
litigants should be held to a lesser standard than those
drafted by lawyers since “[a]n unrepresented litigant
should not be punished for his failure to recognize subtle
factual or legal deficiencies in his claims”).

We think a good cause standard is consistent with the
prevailing standard in district court litigation and with VA
regulations that allow veterans to stay deadlines in other
contexts. For example, as a general matter, “[t]ime limits
within which claimants or beneficiaries are required to act
to perfect a claim or challenge an adverse VA decision may
be extended for good cause shown.” 38 C.F.R. § 3.109(b)
(emphasis added). The rules of the Veterans Court also re-
quire that “a party seeking a [Veterans] Court order to sus-
pend action by the Secretary or the Board . . . shall submit
for filing . . . a motion . . . stat[ing] the reason for the relief
requested and the facts relied on.” U.S. Vet. App. R. 8.

Under a good cause standard, relevant considerations
by the Board for determining whether to grant a stay in-
clude the reasons given for the stay, the identity of the
party seeking the stay, whether the stay is opposed by
other parties to the proceeding, and the requested duration
of the stay. As noted earlier, the Board should consider the
uniquely pro-veteran, non-adversarial nature of the veter-
ans’ claims process in evaluating a veteran’s request. Any
stay that is granted should be appropriately tailored to
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GROVES v. MCDONOUGH 11

prevent undue delay. If a long stay is justified, requiring
recurring status reports throughout the duration of a stay
is an appropriate mechanism for helping to prevent undue
delay.
II

The Veterans Court found any error with respect to Mr.
Groves’s request for a stay was harmless because he had
not shown “how he was harmed by” the Board’s decision.
Decision, 33 Vet. App. at 380; id. at 383–84 (Bartley, C.J.,
concurring) (agreeing with result). The government’s posi-
tion is that remand is necessary for the Veterans Court to
consider whether its harmless error determination re-
mains appropriate in light of the standard we adopt today.
See Oral Arg. at 29:57–32:05. We accordingly do not reach
the harmless error question, nor do we foreclose the Veter-
ans Court from making a harmless error determination on
remand.
CONCLUSION
Because the Veterans Court erred in holding that the
Board was required to automatically grant Mr. Groves’s re-
quest for an indefinite stay under its decision in Hamilton,
we vacate the decision of the Veterans Court and remand
for further proceedings consistent with this opinion.
VACATED AND REMANDED
COSTS
No costs.