                       NOTE: This disposition is nonprecedential.

  United States Court of Appeals for the Federal Circuit
                                       2009-7014

                                  JEROME P. EVANS,

                                                            Claimant-Appellant,

                                            v.

                    ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                            Respondent-Appellee.


      Douglas J. Rosinski, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., of Columbia,
South Carolina, argued for claimant-appellant.

       Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for respondent-appellee. With
her on the brief were Michael F. Hertz, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Brian M. Simkin, Assistant Director. Of counsel on the brief were
Michael J. Timinski, Deputy Assistant General Counsel, and Amanda R. Blackmon,
Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of
Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims
                      NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                      2009-7014


                                 JEROME P. EVANS,

                                                            Claimant-Appellant,

                                           v.

                  ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                            Respondent-Appellee.



      Appeal from the United States Court of Appeals for Veterans Claims in 08-
      1126.
                        ____________________________

                           DECIDED: December 17, 2009
                          ____________________________


Before NEWMAN, LOURIE, and RADER, Circuit Judges. Opinion for the court filed by
Circuit Judge LOURIE, in which Circuit Judges NEWMAN and RADER join. Concurring
opinion filed by Circuit Judge RADER, in which Circuit Judge LOURIE joins. Concurring
opinion filed by Circuit Judge NEWMAN.

LOURIE, Circuit Judge.

      Jerome P. Evans appeals from the denial of his petition for writ of mandamus by

the Court of Appeals for Veterans Claims (the “Veterans Court”). Evans v. Peake, No.

08-1126, 2008 WL 2882824 (Vet. App. July 16, 2008). In light of our decision in Military

Order of the Purple Heart v. Secretary of Veterans Affairs, 580 F.3d 1293 (Fed. Cir.

2009), we vacate and remand.
         Evans is a veteran who served in the U.S. Army from August 24, 1966, to April 6,

1967.     He was awarded a 10% disability rating for peripheral neuropathy with an

effective date of December 5, 2007, after review by the Compensation and Pension

(“C&P”) Service of the Department of Veterans Affairs. The C&P Service had evaluated

Evans’ claim under Fast Letter 07-19, which created a review system for awards over

$250,000 or retroactive for eight or more years. Evans filed a petition seeking a writ of

mandamus in the Veterans Court, arguing that the Fast Letter review scheme was

facially unconstitutional, worked an unconstitutional taking as applied to him, and was

contrary to the veterans’ benefits adjudication process established by statute and

regulation. Evans sought, inter alia, an order to rescind or invalidate the Fast Letter.

On July 16, 2008, the Veterans Court denied Evans’ petition, stating that he had

adequate alternative avenues of relief. Evans, No. 08-1126, 2008 WL 2882824, at *1.

The Veterans Court denied full-court review on October 22, 2008, and entered judgment

on October 24, 2008. Evans timely appealed the Veterans Court’s decision to this

court.

         After oral argument was heard in Evans’ case, we issued a decision in Military

Order that invalidated the same Fast Letter procedure that Evans had initially

challenged in the Veterans Court. In light of that decision, we vacate and remand to the

Veterans Court for further proceedings consistent with Military Order.

                               VACATED AND REMANDED




2009-7014
                                        -2-
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                      2009-7014

                                 JEROME P. EVANS,

                                                            Claimant-Appellant,

                                           v.

                  ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                            Respondent-Appellee.


      Appeal from the United States Court of Appeals for Veterans Claims in
      08-1126.

RADER, Circuit Judge, with whom LOURIE, Circuit Judge, joins, concurring.

      I agree that this case is controlled by Military Order of the Purple Heart v.

Secretary of Veterans Affairs, 580 F.3d 1293 (Fed. Cir. 2009), and I therefore join the

court’s opinion. I write separately, however, to note my belief that Military Order was

wrongly decided for the reasons provided by Judge Schall’s dissent in that case. See

id. at 1298. Most importantly, the extraordinary award procedure outlined in Fast Letter

07-19 was a procedural rule rather than a substantive one.       The procedure simply

provided a second look for certain awards; it did not change the substantive criteria

upon which awards were made. The present case makes that distinction clear. Our

remand expresses no view as to whether Mr. Evans’s award was ultimately justified.
                      NOTE: This disposition is nonprecedential.


    United States Court of Appeals for the Federal Circuit


                                       2009-7014



                                 JEROME P. EVANS,

                                                      Claimant-Appellant,

                                           v.

                   ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                      Respondent-Appellee.




Appeal from the United States Court of Appeals for Veterans Claims in 08-1126.


NEWMAN, Circuit Judge, concurring in the judgment.

      I concur in the court’s judgment of vacatur and remand. However, I do not share

the view of the panel majority that Military Order of the Purple Heart, 580 F.3d 1293

(Fed. Cir. 2009) was wrongly decided and that the secret Fast Letter procedure

invalidated in Purple Heart was a proper procedural rule. The court in Purple Heart

pointed out that the Fast Letter required the Regional Office to conceal from the veteran

the fact that review of the Regional Office decision had occurred without the veteran’s

knowledge or participation, and without informing the veteran that the decision of the

Regional Office had been changed to his disadvantage. I do not agree with the panel
majority statement in their concurring opinion herein, that the court in Purple Heart was

incorrect in disapproving this procedure.




2009-7014                                   2
