Maybe Gorsuch Has Some Possibilities

There is certainly evidence in support of the dominant meme of Gorsuch’s extreme conservatism.  However, there may be one nugget of good news in the access to justice area.

In a VA disability case, in which the Court denied cert., Gorsuch choose to dissent from the denial as follows:

Lower courts often presume that Department of Veterans Affairs medical examiners are competent to render expert opinions against veterans seeking compensation for disabilities they have suffered during military service. The VA appears to apply the same presumption in its own administrative proceedings.

But where does this presumption come from? It enjoys no apparent provenance in the relevant statutes. There Congress imposed on the VA an affirmative duty to assist — not impair — veterans seeking evidence for their disability claims. And consider how the presumption works in practice. The VA usually refuses to supply information that might allow a veteran to challenge the presumption without an order from the Board of Veterans’ Appeals. And that Board often won’t issue an order unless the veteran can first supply a specific reason for thinking the examiner incompetent.

No doubt this arrangement makes the VA’s job easier. But how is it that an administrative agency may manufacture for itself or win from the courts a regime that has no basis in the relevant statutes and does nothing to assist, and much to impair, the interests of those the law says the agency is supposed to serve? (bold added)

Now, you might wonder if our intervention is needed to remedy the problem. After all, a number of thoughtful colleagues on the Federal Circuit have begun to question the presumption’s propriety. And this may well mean the presumption’s days are numbered. But I would not wait in hope. The issue is of much significance to many today and, respectfully, it is worthy of this Court’s attention.

Interestingly, Sotomayor also dissented from the denial, writing separately.

To raise an objection, a veteran needs to know the medical examiner’s credentials. And yet, the VA does not provide veterans with that information as a matter of course. Nor does it always provide veterans with that information upon request. The only road to guaranteed access to an examiner’s credentials runs through a Board order. The Board, however, has some- times required the veteran to have already raised a spec- ific objection to an examiner’s competence before ordering the VA to provide the credentials. This places a veteran in “a catch-22” where she “must make a specific objection to an examiner’s competence before she can learn the exam- iner’s qualifications.” 834 F. 3d 1347, 1357 (CA Fed. 2016) (Reyna, J., dissenting from denial of rehearing en banc).

Now, it is easy to to see Gorsuch’s dissent from the denial as being grounded in his deep skepticism towards Chevron deference, the Court’s willingness to defer to agency interpretations of statutes.  It also allows him to point out that individuals can be hurt by this deference as corporations.

But the new Justice does seem troubled by the access to justice denial inherent in the structure of burdens of pleading and disclosure.

This might suggest a willingess to question rules and procedures that place unfair and unnecessary burdens on access to justice.  In particular, it might suggest willingness to take seriously statutory statements of commitments to accessibility of legal procedures.

It is noteworthy that in his 2016 article in Judicature, Access to Affordable Justice, Gorsuch discusses and urges civil justice reforms as one of the paths to increase accessibility, and specifically analyzes, at page 51, mandatory disclosures.

That the Justices are starting to focus on the access to justice implications of court rules and doctrines can only be to the good, and suggests the possibility of building an access jurisprudence.



About richardzorza

I am deeply involved in access to justice and the patient voice movement.
This entry was posted in 100% Access Strategy and Campaign, Access to Justice Generally, Administative Proecdure, Court Management, Federal Agencies, Federal Courts, Rules Reform, Simplification, Supreme Court, Systematic Change, Veterans. Bookmark the permalink.

2 Responses to Maybe Gorsuch Has Some Possibilities

  1. Catherine Carr says:

    This just makes me think of Lewis Powell, who supported legal services for the poor, but is also credited by many for the birth of corporate organizing to promote neoliberalism – at the expense of government support for the vulnerable, and indeed democracy. I think we can expect as much concern from Gorsuch for the individual at the hands of government as we saw from Scalia. Cathy >

  2. Claudia Johnson says:

    Access to justice is so much about procedural due process.

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