On reconsideration, the Court addressed the Secretary’s challenge to its earlier decision that treated the failure to file an appropriate brief as a concession of error. The Court reaffirmed that under U.S. Vet. App. Rule 31(c), it may deem an inadequate response a concession of error, but it clarified that the Secretary’s motion to remand could qualify as a response only if it specifically identified the error below and the remedy sought on remand. The Court also emphasized that summary disposition is appropriate only when the seven Frankel factors are satisfied, and it cautioned counsel that motions for summary affirmance or remand should not be used simply because they seem expedient. Because the Court also recognized limits on Federal Circuit review under 38 U.S.C. § 7292, it amended its earlier opinion and ordered further briefing rather than leaving the prior complete relief in place.

A Secretary filing does not satisfy the Court’s response rules unless it identifies the error below and the relief sought; if the filing is not an appropriate response, the Court may treat the omission as a concession of error, but summary disposition is limited to cases meeting the Frankel criteria.

VA appellate counsel must file a complete, issue-specific response or brief when summary disposition is not clearly appropriate. A generic remand motion can be risky, and the Court will not require summary treatment merely because a case appears easy.

MacWhorter is an important procedural case on how the Court handles inadequate Secretary responses and summary disposition practice. It gives practitioners a cautionary example of how incomplete motions can trigger adverse consequences and underscores the Court’s expectation of meaningful adversarial briefing in non-simple cases.

The Secretary receives a veteran’s appeal with multiple issues and files only a one-paragraph remand motion that does not explain the error below or address the veteran’s requested relief. Under MacWhorter, the Court may deem that filing an inadequate response and require a full brief.

Use this case to challenge perfunctory remand motions or to argue that the Court should require full briefing where the issues are complex or the requested relief is not fully addressed. It is also useful for defending against overbroad requests for summary disposition.

Rule 31(c), Rule 5, Rule 28(b)(2), Frankel v. Derwinski, Cerullo v. Derwinski, Butler v. Derwinski, Alameda v. Secretary of HEW, United States v. Hooton