When a federal agency fails contemporaneously to explain its reasons for an action, must the retrospective elaboration be of a decisionmaker with authority to take the action at issue lawfully?

QUESTION PRESENTED When a federal agency fails contemporaneously to explain its reasons for an action, the law speaks of two options. One is for the agency to act anew. The other is for it to elaborate its reasons retrospectively. In speaking of an agency elaborating its reasons, though, the law is imprecise. The phrase is anthropomorphic. Also, no agency is a monolith. The imprecisions have led to what is now a circuit split as to who within an agency may elaborate the initial reasons for an agency’s action retrospectively. Below, the Federal Circuit created that split by holding that who within an agency elaborates the action’s reasons does not matter. That the “agency” speaks is, to it, enough. Here, the agency at issue is the Department of Veterans Affairs (“VA”). One of its departments is the Veterans Benefits Administration (“VBA”), which has Regional Benefit Offices (“RO”). They decide claims in the first instance. A separate VA department, the Board of Veterans’ Appeals (“Board”), reviews appeals. In the proceedings below, an RO staffer found against the petitioner without providing adequate reasons. Later, a Board judge purported to elaborate VA's reasons, retrospectively, for the RO staffer’s initial decision. The Federal Circuit affirmed on the basis that the “agency” had spoken. The question presented is this: For an agency to cure a prior failure to explain adequately its reasons for an action, must the retrospective elaboration be of a decisionmaker with authority to take the action at issue lawfully?