UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 98-295

THOMAS J. KUZMA, APPELLANT,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before KRAMER, Chief Judge, and FARLEY, HOLDAWAY, 

IVERS, STEINBERG, and GREENE, Judges.

O R D E R

On November 5, 2001, the appellant, through counsel, submitted a motion, pursuant

to Rule 27 of the Court's Rules of Practice and Procedure (Rules), to vacate an October 17,

1997, decision of the Board of Veterans' Appeals and remand the matter pursuant to Holliday

v. Principi, 14 Vet.App. 280, 290 (2001) (remanding rating-increase claim for readjudication due

to enactment of Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.

2096 (Nov. 9, 2000)). On December 7, 2001, the Secretary submitted a motion for leave to file

out of time a motion for an extension of time to respond to the appellant's motion. On that

same date, the Secretary also submitted a motion for an extension of time, until January 7, 2002,

to file a response. On January 4, 2002, the Secretary submitted a motion for an extension of

time, until February 8, 2002, to file a response. On February 8, 2002, the Secretary submitted

a response to the appellant's November 5, 2001, motion. On February 15, 2002, the Court

ordered the appellant to explain why the Court should not reject for filing, due to unreasonable

delay, his November 5, 2001, motion to remand and allowed the Secretary to file a reply to the

appellant's response. Kuzma v. Principi, 15 Vet.App. 429, 431 (2002) (en banc order). On

February 25, 2002, the appellant responded. The Secretary has not replied.

Upon consideration of the foregoing, it is

ORDERED that the appellant's November 5, 2001, motion to remand the matter is

accepted for filing as of the date that it was submitted. It is further

ORDERED that the Secretary's December 7, 2001, and January 4, 2002, motions are

granted. The Secretary's February 8, 2002, response is accepted for filing as of the date that it

was submitted.

DATED: May 29, 2002 PER CURIAM.

STEINBERG, Judge, concurring: I join in the Court's decision to accept for filing the

appellant's November 5, 2001, motion for a remand to the Board of Veterans' Appeals (Board) for
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readjudication in light of the enactment of the Veterans Claims Assistance Act of 2000, Pub. L. No.

106-475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA). I write separately for two reasons: (1) To respond

to the dissenting statement; and (2) to identify other issues that I believe are now implicated in this

case (and similar cases) in light of the opinion of the U.S. Court of Appeals for the Federal Circuit

(Federal Circuit) in Dyment v. Principi, 287 F.3d 1377, ____, No. 00-7075, 2002 WL 733978, at *7

(Fed. Cir. April 24, 2002) (holding that VCAA-enacted duty to assist and duty to notify are not

retroactively applicable), mot. for en banc consideration filed (May 3, 2002); see also Bernklau v.

Principi, ___ F.3d. ____, ____, No. 00-7122, 2002 WL 1011295, at *7 (Fed. Cir. May 20, 2002)

(holding that Dyment "was plainly correct").

A. Rule 27 Motions

First, on the question of the efficacy of rejecting the appellant's submission as urged by my

dissenting colleague, I believe that doing so would be totally unprecedented, would impose

retroactively a new pleading requirement not included in the Court's Rules of Practice and Procedure

(Rules), and would do so in a most inequitable manner, without fair notice. The appellant submitted

his motion pursuant to Rule 27. That Rule provides in paragraphs (a) and (b):

(a) Content of Motions; Response. Unless another form is required by

these rules, an application for relief must be made by filing a motion, with proof of

service (see Rule 25(e)) on all other parties. The motion must: 

(1) contain or be accompanied by anymaterial required by any of the rules governing

such a motion; 

(2) state with particularity the specific grounds on which it is based;

(3) describe the relief sought; and

(4) if the appellant is represented

(A) describe the steps taken to contact the other party to determine whether

the motion is opposed; and

(B) indicate whether the motion is opposed and, if so, whether the moving

party has been advised that a response in opposition will be filed. 

Motions should not be accompanied by proposed implementing orders. If a motion

is supported by briefs, affidavits, or other papers, they must be served and filed with

the motion. Any party may file a response or opposition to a motion within 14 days

after service of the motion, but motions authorized by Rule 8 (Stay or Injunction

Pending Appeal) may be acted upon after reasonable notice of the motion to all

parties, and the Court may shorten or extend the time for responding to any motion.
 On November 13, 2000, the Court issued In re: Veterans Claims Assistance Act of 2000, Misc. No. 4-00 1

(Nov. 13, 2001 (temporarily located at 15 Vet.App. 27)), which stated as follows regarding the filing of motions relating

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(b) Motions for Procedural Orders. Notwithstanding subsection (a) of this

rule, motions for procedural orders, including any motion for an extension of time

under Rule 26(b), may be acted on at any time, without awaiting a response, and, by

rule or order of the Court, motions for certain procedural orders may be disposed of

by the Clerk. Any party adversely affected by such an action may, by motion, request

that the Court reconsider, vacate, or modify the action within 10 days after the action

is announced.

U.S. VET. APP. R. 27 (a), (b). As can be seen, this Rule on its face imposes no deadlines for filing

any motions. Moreover, there is no provision anywhere in the Rules imposing a deadline for filing

an initial motion (outside the separately defined category of motions for reconsideration, for panel

and en banc decisions, and so forth, for which limits are prescribed in Rule 35). In addition, Rule 27

does not, as my dissenting colleague seems to suggest, limit the filing of motions to procedural

matters, because paragraph (b) provides separately for such matters as an exception to paragraph (a).

Examination of the Notes to Federal Rule of Appellate Procedure (FRAP) 27, on which our Rule 27

was based, supports the broad applicability of our Rule 27 (including open-ended timing) to both

substantive and procedural motions. Those Notes state: 

The provision of subdivision (a) which permits any party to file a response in

opposition to a motion within 7 days after its service upon him assumes that the

motion is one of substancewhich ought not be acted upon without affording affected

parties an opportunity to reply. A motion to dismiss or otherwise determine an

appeal is clearly such a motion.

FRAP 27, Advisory Committee Notes to 1967 Adoption (emphasis added). A remand motion that

proposes readjudication in light of a newly enacted statute and is submitted after the appellant's

briefs were filed would seem to fall into the category of a motion to "determine an appeal".

It appears that the dissenting judge would reject the appellant's filing in this case based upon

the structure of Rules 28, 29, and 31, which relate specifically to briefs. Rule 28, in particular, lays

out a brief's specific contents, listing six separate sections that a brief must contain. Motions, on the

other hand, are limited by only three (four in the case of a represented appellant) content

requirements, set forth in Rule 27(a). The structure of these rules and the special requirements for

the filing of a brief might be seen as implying that a brief should be the vehicle whereby major

substantive arguments are made in a case. However, as shown above, Rule 27 clearly contemplates

that both procedural and substantive motions may be filed. Because substantive motions are

contemplated by the Rules, it would be incongruous to reject a motion that raises a single argument

for remand based on a statute enacted after the filing of the briefs in this case. Indeed, it seems that

a remand motion was the only appropriate filing for the appellant to submit in order to propose a

VCAA remand in this case ; the briefingwas alreadyclosed, and a notice of supplemental authorities 1
to the VCAA:

[It is] ORDERED that, effective on the date of the enactment of the VCAA, and until further

notice of the Court, as to any appeal (1) any party, or the parties jointly, may (without leave of the

Court or unless otherwise ordered by the Court), file, and serve under Rule 25(c), a motion or other

paper addressing the potential applicability of the VCAA to the disposition of that appeal; and (2)

Rule 28(g) (Citation of Supplemental Authorities) is suspended as to the VCAA . . . .

Id. at 27 (emphasis added). On August 31, 2001, the Court issued In re: Rescission of Misc. No. 4-00, Misc. No. 6-01,

15 Vet.App. CCCXCI (2001), which rescinded Misc. No. 4-00 with 14 days advance notice, as of September 14, 2001.

Misc. No. 6-01 stated that "the Court will rescind Misc. No. 4-00 and thus reinstate the full applicability of the Court's

rules to all cases" (emphasis added). Thus, if the Court's Rules are read to allow filing of substantive motions at any

point, even if Misc. No. 4-00 created a special category of "VCAA motions", Misc. No. 6-01 would seem to have

restored the status quo ante. Any reading of both miscellaneous orders together to exclude VCAA-remand motions filed

after September 14, 2001, would be inconsistent with the very policy underlying Misc. No. 4-00. Such a reading would

have the anomalous effect of reading Misc. No. 4-00 as not a liberalizing suspension of the certain rules, but rather as

having imposed a new, tighter stricture on a special class of cases, namely those affected by the VCAA. Any such

reading of that Order would place the Court in a position of acting, in response to a decidedly pro-veteran piece of

legislation (Misc. No. 4-00 also recognized that the VCAA "may affect the disposition of many appeals"), in a decidedly

anti-veteran fashion.

 Rule 28(g) of the Court's Rules of Practice and Procedure states:

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(g) Citation of Supplemental Authorities. When pertinent and significant authorities come to the

attention of a party after the party's brief has been filed or after oral argument but before the decision,

a party shall promptly advise the Clerk, by letter, with a copy to all other parties, setting forth the

citations. If the authority is not readily available in a Reporter system, the party shall provide the

Clerk with a copy. The letter must refer to the page of the brief or to a point argued orally to which

each citation pertains, and the letter must state without argument the reasons for the supplemental

citations. Any response must be made promptly and must be similarly limited.

U.S. VET. APP. R. 28(g) (emphasis added).

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could not properly be used to raise the remand argument. Although the timing of the remand 2

motion, nearly one year after the enactment of the VCAA, is troubling, it should not be overlooked

that the motion was capable of being filed at such a late date because, among other reasons, the Court

had failed by that time to act on the appeal, which was filed on February 17, 1998. 

Nor was this motion used as a vehicle for presenting significant substantive argument on the

merits of an issue on appeal; only then might it be appropriate to declare the motion a subterfuge for

a brief. Characterizing the instant VCAA-remand motion as a supplemental brief would lend the

appearance of an attempt to find a basis for returning the pleading in order to avoid having to

consider it. 

Furthermore, although the appellant here is represented, there is a strong policy reason in

support of a liberal attitude toward substantive motions, namely, to assist pro se litigants, for whom

strict pleading requirements could impose substantial roadblocks to justice. The U.S. Court of
 The Court explained: 3

It is well settled that pro se litigants generally are entitled to a liberal construction of their

pleadings, which should be read "to raise the strongest arguments that they suggest." Graham v.

Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quotation marks omitted); see Haines v. Kerner, 404 U.S.

519, 520 . . . (1972) (per curiam) (holding that allegations in a pro se complaint are "held to less

stringent standards than formal pleadings drafted by lawyers"); Liriano v. United States, 95 F.3d 119,

122 (2d Cir. 1996) (per curiam) (pro se supplemental brief "substantially constitutes the motion

envisioned by [28 U.S.C.] § 2244(b)(3)(A), and will be treated as satisfying the motion requirement").

We see no reason why the general rule should not apply to pro se motions filed pursuant to

section 2255 [of title 28, U.S. Code]. Where a motion, nominally seeking an extension of time,

contains allegations sufficient to support a claim under section 2255, a district court is empowered,

and in some instances may be required, under Haines to treat that motion as a substantive motion for

relief under section 2255.

Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001). 

 See Holliday v. Principi, 14 Vet.App. 280, 286 ("the Court holds that all provisions of the VCAA are

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potentially applicable to claims pending on the date of the VCAA's enactment"), mot. for recons. denied, 14 Vet.App.

327 (per curiam order), mot. for full Court review denied, 15 Vet.App. 21 (2001) (en banc order).

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Appeals for the Second Circuit recognized this principle recently by construing a nominally

procedural motion to be a substantive motion that preserved a pro se litigant's appeal.3

Finally, as to practice under our Rule 27, it is my understanding that, historically, motions

for remand have been submitted at almost any pre-judgment stage (i.e., they are filed as soon as a

copy of the BVA decision is filed or well after briefing). It appears that the Court has never declined

to accept such a motion for filing on the ground that it is out-of-time. Providing further support for

the Court's accepting the filing of a motion at any stage in the deliberative process is the Court's wellaccepted practice of permitting parties to file, long after briefing is completed, joint motions for a

merits disposition and to settle a case right up to the courtroom door.

B. Dyment Opinion

Regarding the dissent's reference to the Dyment opinion, I do not believe that that case has

any bearing on the question of whether this Court should close its eyes to the appellant's motion.

What consideration we give to the motion is a very different matter from whether we should exclude

all consideration of it. I do, however, agree with my colleague that the Dyment opinion is very much

implicated in the disposition of this appeal, specifically as to whether a remand for readjudication

of this pre-VCAA BVA decision is called for in connection with the enactment of the VCAA. 

4
 See Holliday, 14 Vet.App. at 285 (holding, inter alia, that all provisions of VCAA are retroactively applicable 5

to claims pending at time of enactment of VCAA); VA Gen. Coun. Prec. 11-00, p. 4 (Nov. 27, 2000) ("all of the

[VCAA]'s provisions apply to claims filed on or after November 9, 2000, as well as to claims filed before then but

not finally decided as of that date"); cf. Landgraf v. USI Film Products, 511 U.S. 244, 270 (1994) ("[s]ince the early

days of this Court, we have declined to give retroactive effect to statutes b urd en in g p rivate rig h ts unless Congress

had made clear its intent" (emphasis added)).

 66 Fed. Reg. 45,620, 45,630-32 (Aug. 29, 2001) (to be codified at 38 C.F.R. pt. 3) (Duty-to-Assist

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regulations, amending 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326).

 But see Bernklau v. Principi, ___ F.3d ____, ____, No. 00-7122, 2002 WL 1011295, at *9 n.9 (Fed. Cir.

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May 20, 2002) ("[w]e note that the new regulations associated with the VCAA apply to 'any claim filed before that date

but not yet decided by [VA] on or after November 9, 2000, . . . as well as to any claim filed before that date but not

decided by [VA] as of that date'").

 Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991) (holding that "where the law or regulation changes after

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a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the

version mo[re] favorable to [the] appellant should . . . apply unless Congress provided otherwise or permitted the

[Secretary] to do otherwise and the Secretary did so" (emphasis added)).

 See 38 U.S.C. §§ 7104(b), 7105(c), 7266; 66 Fed. Reg. 45,620, 45,620 (Aug. 29, 2001) (providing, except

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as to two provisions relating to reopening of claims, that "the provisions of this final rule apply to any claim for benefits

received by VA on or after November 9, 2000, as well as to any claim filed before that date but not yet decided by VA

as of that date"); VA Gen. Coun. Prec. 11-00, supra note 5 (holding VCAA generally applicable to "claims filed before

[November 9, 2000,] but not finally decided as of that date"); see also Bernklau, supra note 7.

 See supra note 9. 10

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On this latter point, it appears that the VCAA is no longer retroactively applicable to a Board 5

decision issued before the VCAA's enactment date (November 9, 2000) and on appeal in the Court.

See Dyment, supra; see also Bernklau, supra. However, the Court has not issued a precedential

opinion interpreting Dyment, and I believe that any such opinion should be preceded by full briefing

on the effect of Dyment, including briefing as to (1) whether the VA Duty-to-Assist regulations

issued on August 29, 2001 (and nowhere referenced in Dyment ) have application under Karnas v. 6 7

Derwinski to an appeal in this Court of a pre-VCAA-enactment BVA decision where neither VA 8

nor the BVA had issued a decision that had become final and nonappealable before that date ; (2) 9

whether, if the VCAA were construed not to authorize retroactive application of its provisions (other

than section 7), the Secretary would, nevertheless, have had the authority to continue to apply the

August 29, 2001, regulations under pre-VCAA authority in effect on the date of the issuance of the

regulations; and (3) whether, if question (2) is answered in the affirmative, the Secretary would also

have had the authority to apply those regulations retroactively. See, e.g., 38 U.S.C. §§ 501, 10

5103(a), 7722(d).
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IVERS, Judge, dissenting:

I would vote that the Court not accept for filing the veteran's pleading captioned as a motion

for remand pursuant to the VCAA. Briefing in this case closed on February 2, 2000, with the

submission of the veteran's reply brief. On November 15, 2000, the Court automatically recalled

judgment in the October 16, 2000, decision pursuant to In re: Veterans Claims Assistance Act of

2000, Misc. Order No. 4-00, (Nov. 13, 2000), which also allowed either party, without further leave

of the Court, to file a motion or other paper addressing the potential applicability of the VCAA to

the disposition of that appeal, and suspended Rule 28(g)(Citation of Supplemental Authorities) as

to the VCAA. On September 14, 2001, Misc. Order No. 4-00 was rescinded, and the automatic

allowance of pleadings concerning the VCAA outside the Rules and without leave of Court was

rescinded. In re: Rescission of Misc. Order No. 4-00, Veterans Claims Assistance Act of 2000, Misc.

Order No. 6-01, 15 Vet.App. CCCXCI (Aug. 31, 2001). On November 5, 2001, almost one year

after the passage of the VCAA, and more than 7 weeks after the rescission of Misc. Order No. 4-00,

the Court received the veteran's pleading captioned as a motion for remand pursuant to the VCAA.

As noted above, briefing in this case had been closed for 20 months when the Court received the

veteran's pleading. 

An epigram widely attributed to Abraham Lincoln is appropriate in this case: How many legs

does a dog have if you count his tail as a leg? Four. You can call a tail a leg if you want to, but it

doesn't make it a leg. The veteran's most recent pleading, although captioned as a motion, is, in

substance, a supplemental brief, which he has filed out of time. Nor did the veteran file a

supplemental brief or a motion addressing the applicability of the VCAA during the time permitted

under Misc. Order No. 4-00. Therefore, the Court should not accept this pleading captioned as a

motion for remand.

The above analysis notwithstanding, the issue of a remand pursuant to the VCAA has

recently been addressed by the U. S. Court of Appeals for the Federal Circuit (Federal Circuit) in

Bernklau v. Principi, _ F.3d _, No. 00-7122 (Fed. Cir. May 20, 2002) and Dyment v. Principi, 287

F.3d 1377, 1385 (Fed. Cir. 2002). In both Bernklau and Dyment, the Federal Circuit held that

section 3(a) of the VCAA–which contains the assistance to claimants provisions to include the dutyto- assist provisions of section 5103A–is not retroactive as to claims that were under consideration

before the enactment of the VCAA. In light of Bernklau and Dyment, the issue of whether or not

to remand the veteran's claim pursuant to the VCAA has become moot, and hence, the need for

further consideration of the issue as to whether or not to accept the veteran's submission is also moot.

Therefore, I respectfully dissent.