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5 min read

Costello v McDonough

 Procedural Due Process Rights  | CAVC Case | Veterans Benefits Lawyer

Eugene Costello is fighting against the decision made by the Board of Veterans' Appeals that denied his request for a higher disability rating and an earlier effective date for service connection related to coronary artery disease (CAD). Costello strongly believes that 38 C.F.R. § 20.1305(a) is unjust and infringes upon claimants' constitutional right to due process of law. However, the Court of Appeals for Veterans Claims found that Costello did not provide enough evidence to support his claim of a due process violation, and that he even waived his argument that the regulation violated due process principles in his specific case. Consequently, the Court upheld the Board's decision. Despite this setback, Costello continues to argue that the language in 38 C.F.R. § 20.1305(a) is fundamentally flawed and violates the Due Process Clause of the U.S. Constitution. He firmly asserts that the regulation denies claimants the opportunity to express themselves in a meaningful manner. Costello also presents the three factors outlined in Mathews v. Eldridge to support his case. In addition, he claims that § 20.1305(a) contradicts 38 C.F.R. § 19.36, rendering the latter obsolete. Costello now urges the Court to remove a specific clause from § 20.1305(a) and establish a universal rule that grants appellants 90 days to request a hearing, present evidence, or change their legal representation. He argues that the notice provided by § 20.1305(a) is arbitrary, misleading, and fundamentally unjust. In response, the Secretary of Veterans Affairs defends the regulation, emphasizing that it explicitly allows the Board to make a decision before the 90-day period expires. The Secretary contends that Costello has not met the burden of proving that the regulation is invalid and violates constitutional due process rights. The Secretary further argues that the regulation's purpose is to establish a deadline that facilitates the efficient processing of appeals. The Secretary asserts that Costello was given sufficient notice and an opportunity to be heard throughout the appeals process. In light of these arguments, the Court has requested both parties to submit additional legal memoranda to address specific questions.

The Secretary counters Costello's argument, asserting that he has not provided sufficient evidence to demonstrate that the regulation is invalid and violates constitutional due process rights. Additionally, the Secretary emphasizes that the main purpose of the regulation is to establish a "cut-off date" that aids in the smooth and timely processing of appeals. In response to Costello's claim of inadequate notice and opportunity to be heard during his appeal, the Secretary argues that he was indeed given appropriate notice and ample chances to present his case. The Court has intervened and instructed both parties to submit additional legal memoranda to address specific questions. Costello contends that the inclusion of the challenged clause in the regulation lacks any regulatory history to justify its addition. On the other hand, the Secretary maintains that the regulation's purpose aligns with the description provided in the Federal Register. The Court has raised the question of whether the inclusion of specific language in § 20.1305 for legacy appellants, while adopting a defined timeframe for submitting evidence under the AMA, signifies anything about the purpose and correct interpretation of § 20.1305 and § 19.36. Costello argues that the differences in function between the RO and the Board weaken the Secretary's stance.

The Court has raised the issue of whether § 20.1305(a) is invalid under all circumstances. Costello argues that the regulation is invalid in all situations, but he acknowledges that there are three specific circumstances that could potentially render the deficiency moot. On the other hand, the Secretary argues that the regulation is valid in all circumstances, except as limited by the Court's decision in Bryant v. Wilkie. The Court has also asked the Secretary to explain why he did not respond to Costello's argument that the challenged clause conflicts with the purpose of § 19.36. The Secretary asserts that there is no conflict, as the regulations must be read together. Additionally, the Court has asked the parties to address whether claimants have the ability to show good cause for submitting evidence, requesting a change in representation, or requesting a hearing after a Board decision has been rendered. Costello argues that a postdecisional motion would not impact whether due process was provided, while the Secretary argues that the plain language of the regulation prohibits such motions. The Court, however, only considers Costello's contention that the regulation violates VA claimants' procedural due process rights. Costello argues that § 20.1305(a) fails to provide adequate notice or the opportunity to be heard in a meaningful manner, and also conflicts with 38 C.F.R. § 19.36. The Court rejects these arguments, finding that Costello does not provide legal support for his claims or interpret the regulations in a discernable manner.

The Court finds Costello's argument that the regulation provides only illusory notice to be unconvincing. Furthermore, the Court notes that Costello's facial challenge to the constitutionality of the regulation requires him to demonstrate that there are no circumstances under which the regulation would be valid. Regrettably, Costello does not meet this burden. Costello suggests that the regulation could be amended to address the due process violation by implementing a 90-day time limit in line with § 19.36. However, the Court finds that Costello does not clarify how the Court would have the authority to impose such requirements on the regulation or why an explicit waiver should be necessary. Additionally, Costello argues that the regulation is unconstitutional if a claimant waives the 90-day period, but he fails to explain why a claimant cannot submit such a waiver prior to receiving notice. While there may be questions regarding the administration of the regulation by the VA, Costello does not specifically challenge its administration. Moreover, Costello does not provide any legal authority or argument to support the notion that striking the offending clause is an appropriate remedy. Consequently, the Court concludes that Costello has not demonstrated that the scenario he is concerned about extends beyond a hypothetical situation. Furthermore, Costello does not contest the Secretary's interpretation of the regulation. Additionally, Costello's argument that 38 U.S.C. § 7104(a) mandates that the Court examine only the postcertification period lacks development. The Court is not persuaded by Costello's argument, as the Prickett Court did not claim to interpret the language or purpose of § 20.1304(a).

The Secretary contends that the appellant was provided with ample notice and the opportunity to respond throughout the entire appeals process. However, Costello's argument is not relevant to a facial due process challenge, as it requires him to demonstrate that the regulation is invalid in all circumstances. Furthermore, Costello fails to address the regulatory history or the Secretary's reliance on statements in the Federal Register. He also does not present any discernable as-applied due process challenge. The Court, therefore, declines to address an issue that was not raised by Costello in his opening brief. Ultimately, the Court finds that Costello does not present an as-applied due process challenge to § 20.1305 and affirms the Board's decision.

In contrast, the appellant does not raise any objections regarding the violation of fair process principles in relation to § 20.1305(a).

- Interestingly, the appellant does not make any claims of prejudice resulting from the actions of the Board.

- Furthermore, the appellant does not present an argument suggesting that he would have taken any of the specified actions in § 20.1305(a) had he been given a specific timeframe to do so.

- It is assumed by the Court that the appellant's arguments were chosen based on advice received from legal counsel.

- The Court firmly states that it will not offer an advisory opinion on this matter.

- Additionally, the document references a change from § 20.1304(a) to § 20.1305(a) in 2019.

- The "no set of circumstances" standard, which is typically used to demonstrate the facial invalidity of a statute or regulation, is brought into question in two notable cases: Johnson v. United States and Sessions v. Dimaya.

- Costello raises the concern that the Board did not adequately inform him of his rights, although he does not elaborate on this argument.