The Big Argument

By Gar Willoughby

UDM Law Student

For the first time in the University of Detroit Mercy School of Law's 99-year history, live oral arguments were presented in front of three federal judges from the United States Court of Appeals for Veterans Claims. Upon accepting an invitation from Lloyd Semple, Dean of UDM Law, and Tammy Kudialis, Director of UDM Law's Project SALUTE and the Veterans Appellate Clinic, the Honorable Bruce E. Kasold, Alan G. Lance, and Lawrence B. Hagel graciously took time from their busy court docket to travel from Washington, D.C. to preside over the proceedings.

Students and faculty alike were enthusiastic about the Oct. 26 visit. Michael Glynn, UDM 2L and president of the school's Veterans Law Society, explained, "Our school prides itself on preparing students to be 'practice ready.' Having the opportunity to host three federal judges at our school to preside over an official hearing is a very, very big deal. Events like this make me want to finish law school and start helping people."

The three-judge panel heard oral arguments in the case of Burden v. Shinseki, an appeal which examined the standard of review to be applied when determining whether a valid marriage existed under Alabama law between a veteran and a surviving spouse, for the purpose of Veterans Affairs death benefits. Representing the Appellant was Angela Hill from Alexander City, Ala. Hill is a sole practitioner who agreed to represent Burden pro bono through the Veterans Consortium Pro Bono Program in Washington, D.C. Counsel for the Appellee, Eric Shinseki, Secretary of the Department of Veterans Affairs, was Karen Hartridge from Washington, D.C.

Burden married a veteran in a ceremonial marriage in April 2004. The veteran died two months later. In August 2004, Burden applied for Dependency and Indemnity Compensation (DIC) which is a monthly compensation awarded to a veteran's surviving spouse, children, or parents when the veteran dies from a service connected disability. In October 2004, the claim was denied by the Veterans Affairs Regional Officer (RO). The RO determined that she was not married to the veteran for at least one year prior to the veteran's death, as required by VA regulations. Burden subsequently submitted a Statement of Marital Relationship and other evidence indicating that she and the veteran had been living together as common law husband and wife since 1998. However, the RO determined that a common law marriage did not exist under Alabama's clear and convincing evidence standard of review. In August, the Veterans Affairs Board of Appeals affirmed the RO's decision. That decision is now the matter on appeal.

The crux of the issue in this case is the standard of review to be applied when determining whether a valid marriage existed for the purpose of VA death benefits. Burden argued that the proper standard of review in determining whether she had a valid common law marriage is the preponderance of the evidence standard (benefit of the doubt), because it is the "touchstone of veterans' law." In contrast, the Appellee (counsel for the government) argued that the proper standard of review in determining whether there was a valid common law marriage is the standard used in any given state. In this case, the state law standard is clear and convincing evidence. Furthermore, the appellee argued that although the preponderance of the evidence standard is traditionally applied in veterans' law, the statute and regulations carve out an exception when the issue concerns the existence of marriage. Moreover, the government argued that the statute clearly instructs the court to apply the law of the place where the parties resided at the time of the marriage.

After the proceedings, the judges explained to the litigators and audience that the matter before them would not be determined immediately and that after careful contemplation, discussion, and further examination of the law a final ruling would be issued in several weeks. The judges then allowed for a lengthy question and answer period. Some students asked about careers in veterans' law, while others were interested in the background of the judges. It became clear that the judges possessed a wealth of experience and knowledge in veterans' affairs issues. The revelation that each judge had personally served in the armed forces gave hope to several law students/veterans in attendance who aspire to help others in the field of veterans' law.

In addition to UDM Law hosting its first oral arguments before the United States Court of Appeals for Veterans Claims, the law school also celebrated two other "firsts."

As a result of UDM Law's capital improvement fundraising initiative, nearly the entire school has been completely made-over. Recently completed is the ceremonial courtroom on the second floor. The visit by the United States Court of Appeals provided the school with an opportunity to showcase its newest gem in a long line of state-of-the-art classroom renovations. Several staff members worked hard to ensure the room would be ready for the court's momentous visit.

Dean Semple remarked, "It was a great honor to be chosen by the court to be the venue for this session. It never would have happened were it not for our nationally recognized veterans' clinical programs, representing veterans in benefit claims throughout the state and the country. We carefully planned all aspects of our recent total renovation of our facilities. The new room in which the court's session was held worked perfectly and met everyone's highest expectations. It was designed with an event such as this one in mind."

Hosting this event required considerable planning and execution by the UDM Law Team. Tammy Kudialis, Director of UDM's veterans' law program, Project SALUTE, was the primary point person with the Court. Amy Smith, Director of Special Projects, and Assistant Dean Denise Hickey handled most of the logistics. Chris Congdon, the Information Technology Director, and his team provided the necessary IT support, which was considerable.

Additionally, Amanda Clark, UDM Law class of 2010, returned to her alma matter to assist in the court proceedings in the capacity of law clerk for the Honorable Lawrence B. Hagel. During her time at UDM, Amanda participated in both the school's Veterans Law Clinic and the Veterans Appeals Clinic. Because of her strong grades, work ethic, and commitment to helping veterans during her time at UDM, Clark was the first UDM Law graduate hired to clerk for the United States Court of Appeals for Veterans Claims. Dean Semple remarked, "Amanda's presence gave the visit by the court a special meaning for all of us. We are proud of our successful graduates such as Amanda and always look forward to seeing them." Tammy Kudialis was also enthusiastic about the success of the event that she helped bring to campus and gushed with pride over the return of Clark. "It was simply thrilling to have the opportunity to watch Amanda put to work the practice-ready skills she learned at UDM Law," said Kudialis.

When asked if UDM Law would be willing to host another visit from the United States Court of Appeals for Veterans Claims, Dean Semple replied, "Absolutely!"

Published: Fri, Nov 11, 2011


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