Veteranclaims’s Blog

July 17, 2021

Tadlock; prejudicial error jurisprudence since we issued Simmons v. Wilkie, 30 Vet.App. 267 (2018); concerned that the Court’s current application of the rule of prejudicial error does not accord with U.S. Court of Appeals for the Federal Circuit precedent; Scott v. Wilkie, 920 F.3d 1375, 1380 (Fed. Cir. 2019) (the Court may not “substitute[e] new rationales of its own” to correct the Board’s decision); Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000);

Filed under: Uncategorized — Tags: — veteranclaims @ 11:33 am

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 18-1160
HOWARD L. TADLOCK, JR., APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge, and PIETSCH, GREENBERG, ALLEN,
MEREDITH, TOTH, and FALVEY, Judges.
O R D E R
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
On September 17, 2019, the Court granted a motion for panel decision and ordered that the single-judge decision remains the decision of the Court. On November 19, 2019, after the Court granted the appellant an extension of time, the appellant filed a timely motion for full-Court review.
“Motions for full-Court review are not favored. Ordinarily they will not be granted unless such action is necessary to secure or maintain uniformity of the Court’s decisions or to resolve a question of exceptional importance.” U.S. VET. APP. R. 35(c). In this matter, the appellant has not shown that either basis exists to warrant full-Court review.
Upon consideration of the foregoing, it is
ORDERED that the motion for full-Court review is denied.
DATED: February 14, 2020 PER CURIAM.
PIETSCH, Judge, concurring: For the reasons that I stated in the dissent that I filed with the Court’s order denying the appellant’s request for reconsideration and panel review, I remain concerned with the direction that the Court’s prejudicial error jurisprudence has taken since we issued Simmons v. Wilkie, 30 Vet.App. 267 (2018) and the potential for inconsistency now introduced into our decisions. I’m also concerned that the Court’s current application of the rule of prejudicial error does not accord with U.S. Court of Appeals for the Federal Circuit precedent.
2
See Scott v. Wilkie, 920 F.3d 1375, 1380 (Fed. Cir. 2019) (the Court may not “substitute[e] new rationales of its own” to correct the Board’s decision); Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (stating that “appellate tribunals are not appropriate fora for initial fact finding”). Based on the information before me, however, I cannot say that this case meets the high standard for en banc consideration. I therefore join this order.
Copies to:
Howard L. Tadlock, Jr.
VA General Counsel (027)

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