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Witness Testimony of Hon. William P. Green Jr., U.S. Court of Appeals for Veterans Claims, Chief Judge

MR. CHAIRMAN AND DISTINGUISHED MEMBERS OF THE SUBCOMMITTEE:

On behalf of the Court, I appreciate the opportunity to present testimony on the challenges facing the United States Court of Appeals for Veterans Claims.  As Chief Judge, I lead the Court in its daily operations, which includes determining how best to use our judicial resources.  I have great assistance from my colleagues – who form the Board of Judges, the Clerk of the Court, and a very competent judicial staff.  The Court is a national appellate court of record.  Our primary responsibility is to provide independent judicial review of final Board of Veterans' Appeals (BVA or Board) decisions that are adverse to a veteran's claim for benefits.

Initially, let me state that less than two years ago, in August 2005, I became the Chief Judge of a relatively new Court.  We had just experienced the first complete turnover or retirement of all of the original judges on our Court.  By statute, judges of this Court are appointed by the President, with the advice and consent of the Senate, to 15-year terms.  The Court was created in November 1988 by the Veterans' Judicial Review Act, and it opened its doors in October 1989 after the first three judges had been confirmed.  Four more judges joined the bench the following year, bringing the Court up to its statutory full strength of seven active judges.  I was appointed to the Court in November 1997  after the death of Judge Hart T. Mankin, one of the original seven, created a vacancy.

Since all judges had been appointed within a few months of one another, as we approached the 15-year mark of the Court's operations, the terms of the remaining original judges began to expire, in succession, in order of seniority.  We went from seven judges, to five judges, as we awaited nomination and confirmation of new judges.  As appointments were made, we returned to seven judges, to temporarily (as provided by statute) nine judges, then – in August 2005 – back to seven judges, with six being new.  From once being a junior judge, I suddenly overnight became the most senior and the Court's Chief Judge, with two colleagues who had served just over one year, and four new colleagues who had served for only several months.  This transformation was indeed challenging.

Now, I am happy to report that our four newest judges have completed two-and-one-half years of service on the bench, and two judges are approaching three-and-one-half years.  We are now a far more experienced Court.  That experience level has produced positive results that I will highlight today.

However, before discussing caseload and case processing, I would like to tell you a little more about the Court in the context of the federal judicial system.  The Court is a federal appellate judicial tribunal.  It stands with the U.S. Court of Appeals for the Armed Forces as one of two specialized federal appellate courts, created under Article I of the U.S. Constitution, joining the 13 Article III circuit courts of appeal and the specialized U.S. Court of Appeals for the Federal Circuit, as a part of the federal appellate judiciary.  When the Court was created, veterans and their families got –  for the first time – the right to judicial review of final BVA decisions.  And they are making use of that right.

Recently, Associate Professor Michael Allen, of the Stetson University College of Law, when commenting on proposed changes to the Court's Rules of Practice and Procedure, observed that the U.S. Court of Appeals for Veterans Claims is one of the busiest federal appellate courts, nationwide.  Professor Allen points out that, in 2006, with 3,729 new cases, the Court's incoming caseload was greater than the First (with 1,852 cases), Seventh (3,634), Eighth (3,312), Tenth (2,742), District of Columbia (1,281), and Federal (1,772) Circuits.  With only seven active judges, this Court's per-judge average is 533 cases, about twice as many cases as the 263 average per judge for the Article III circuit courts of appeal.  This workload presents a significant challenge.

For many years, the veterans' benefits process, administered by the Department of Veterans Affairs (VA), operated without any right by a veteran to independent judicial review of a decision by VA on a claim.  As the possibility of providing judicial review of final agency decisions adversely affecting veterans was debated, good arguments were raised for a variety of proposals as to how that judicial review ought to be provided.  Those who favored judicial review pointed out that there would be significant problems in trying to develop veterans law expertise in any of the courts of more general jurisdiction.  That lack of specialized expertise was perceived to be a potential detriment to veterans and to VA because of the complexity of this area of the law.

One concern that needed to be addressed in creating a specialized appellate court was that, because there had not previously been a right to judicial review, there was not an existing body of veterans law appellate jurisprudence.  Therefore, a structure unique within the federal court system was created.  The Congress established an independent court of appeals that handled only veterans' cases.  The U.S. Court of Veterans Appeals, now the U.S. Court of Appeals for Veterans Claims, was created as an appellate court, applying general principles for appellate review of agency final decisions; and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) was given limited appellate jurisdiction to review decisions of this Court affecting only questions of law.  The serial appellate review by two separate appellate courts achieved the purpose envisioned by its advocates, and we now have the settled body of specialized jurisprudence that was lacking when the system was designed.  Indeed, there are now 20 volumes of law in the West Reporter Series: West's Veterans Appeals Reporter. 

Appeals to the Court are, as a matter of right, without any jurisdictional filter.  Veterans and their qualifying family members who have received from the BVA (in whole or in part) an adverse decision affecting benefits may file an appeal.  They need only file within 120 days after the date of the Board decision, citing the Board decision that is being appealed.  A modest filing fee of $50.00 is required, but that fee is often waived upon a showing of financial hardship.  Thereafter, the Secretary and the appellant (or the appellant's counsel) determine which documents within the veteran's claims file should constitute the Designated Record for the Court's review.  After the record has been designated, the parties must present written briefs, may request oral argument, and can make such other motions affecting the appeal as may be appropriate.  During this period, unrepresented appellants frequently obtain counsel (in fiscal year (FY) 2006, 63% of appellants were unrepresented when they filed an appeal, but only 24% continued to be unrepresented at closure).  Generally, the Court's rules allow 254 days for this appellate process.  The appellant and the Secretary frequently request additional time to accomplish the preparation (about 13,000 requests for extension of time were filed by the parties in FY 2006; more than 10,000 such requests have already been filed in FY 2007).

Before the case is fully briefed and ready for screening for assignment to a judge for decision, the parties may agree on a disposition that does not require action by a judge or panel of judges.  The Secretary and the appellant can agree jointly to vacate the Board decision and remand the case to the Board so that it can address the issues raised on appeal.  Attorneys in the Central Legal Staff are key facilitators in this process.

The case is then assigned to a judge, who must review the case to decide whether it presents a novel issue requiring a panel decision or whether it involves the application of settled law.  If it involves the application of settled law to the facts of the case, a single judge is permitted to decide the case and issue a memorandum decision.  This single-judge decision authority is absolutely essential to the Court's ability to handle a large caseload with only seven judges.  If, during this screening process, the judge believes that the case involves a novel issue of law, the judge will ask the Clerk to assign the case  to a three-judge panel.  That panel can then proceed to a decision, with or without oral argument by the parties.

It is the Court's practice to circulate among all of the judges for review the single-judge decisions and panel opinions.  In the case of single-judge decisions, if two judges believe the case requires decision by a panel, it must be referred to a panel.  This review process assures that single judges do not make decisions that should be the subject of precedential panel decisions and that there are not potential conflicts in precedential panel opinions.  During the circulation of a draft opinion by a three-judge panel, there may be a call for consideration of the matter by the full court when it is believed that the proposed opinion addresses issues of exceptional importance or creates a conflict in the Court's jurisprudence that must be resolved.

Once a decision or opinion issues, either party may request reconsideration and/or panel review of a single-judge decision.  If that request for reconsideration is denied by the single judge, any request for panel review will be considered.  Similarly, there may be a request for full Court consideration of a panel opinion.

But the appeal process does not end here.  Following a final decision by our Court, the unique statutory jurisdictional scheme adopted for the creation of appellate review of VA final decisions permits a veteran or the Secretary to file an appeal to the Federal Circuit.  The Federal Circuit has jurisdiction to review our decisions that interpret the statutes and regulations, but not those decisions that apply the law to the facts of a particular case.

Many of the cases appealed to the Federal Circuit today are dismissed at that level for lack of jurisdiction when that Court concludes that the case had involved the application of law to fact.  In areas where questions of law  are interpreted by our Court, the Federal Circuit reviews our decisions without deference to our interpretation.  During FY 2006, 366 cases from our Court were appealed to the Federal Circuit.

Finally, following review in the Federal Circuit, either party may seek review by the U.S. Supreme Court by filing a Petition for a Writ of Certiorari.  Since 1989, the Supreme Court has considered two of our cases.

Now I turn to the challenges created by the Court's greatly increased caseload.  Last year, I advised the Court's congressional authorizing and appropriations committees that I anticipated that new case filings to the Court would continue to rise and could reach 3,600.  In fact, in FY 2006 the Court received 3,729 new case filings; and we decided 2,842 cases, the third highest number in our history.  The rolling wave of new cases received in FY 2007 continues the previous year's trend of substantial increases in the Court's workload over that experienced from FY 1989 through FY 2004. 

The following table, which also appears on page 4 of the Court's FY 2008 Budget Submission, reveals the trends from FY 1995 through FY 2006 for Board of Veterans' Appeals (BVA or Board) total denials and appeals and petitions to the Court:

 

FY
95

FY 96

FY
97

FY
98

FY
99

FY
00

FY
01

FY
02

FY
03

FY
 04

FY
05

FY
06

BVA Total Denials

 6407

10444

 15865

 15360

 14881

14080

   8514

   8606

 10228

  9299

13033

18107

Case Filings to USCAVC

 1279

 1629

  2229

2371

2397

2442

2296

2150

2532

  2234

 3466

3729

Case Filings as % of Denials

20.0%

15.0%

 14.0%

 15.4%

 16.1%

 17.3%

 27.0%

 25.0%

 24.0%

 24.2%

 26.6%

20.6%

In the first two quarters of FY 2007, we have received the highest numbers ever (2,542 new cases in two quarters).  Although many of those cases related to a single issue in a particular case (over 1,100 cases were appeals of decisions on bilateral tinnitus claims, controlled by Smith v. Nicholson), even without counting those cases, there remained an average of 300 appeals per month.

Additionally, the following chart shows cases filed and cases decided from the first quarter of FY 2006 through the second quarter of FY 2007:     

U.S. Court Of Appeals for Veterans Claims Cases Files and Decided From October 1, 2005 to March 31, 2007

.S. COURT OF APPEALS FOR VETERANS CLAIMS CASES FILES AND DECIDED FROM OCTOBER 1, 2005 TO MARCH 31, 2007

At the same time, the Court decision rate has risen as indicated by an increasing number of cases decided per quarter.  In the first and second quarters of FY 2007, the Court decided 2,941 cases, as compared to 1,274 in the first two quarters of FY 2006.  The number of cases decided thus far in 2007 exceeds the number of incoming cases, which was 2,542.  Nevertheless, new cases continue to arrive at a high rate – between 300 and 400 every month.  The pie graph that follows depicts the Court's case inventory as of May 10, 2007.  Of the 6,080 cases in our inventory, 3,452 are being developed by the parties, and 1,181 have already been decided but are temporarily kept in the inventory for a variety of reasons (426 cases on appeal to the Federal Circuit, 154 cases pending action on Equal Access to Justice Act applications, 417 cases awaiting the time to run for mandate, and 184 cases awaiting the time to run for entry of judgment); 204 cases are stayed upon request of the parties or awaiting disposition of the appeal in a related case; 398 cases are ready for review by the Central Legal Staff; 593 cases are pending a decision by the judges; and 89 are pending action by the Clerk (either on a joint motion of the parties or awaiting a response to a motion for dismissal for jurisdictional reasons).

U.S. Court of Appeals for Veterans Claims Caseload (as of May 10, 2007) Total: 6,080
 

 6,080

There is no single factor that accounts for the Court's sustained high level of new cases.  The increase, however, may be attributable to several circumstances: First, the increased productivity of the Board, including a higher number of denials of benefits, produces more potential appeals; second, increased awareness among veterans and their families of the Court's 19-year existence; and, third, the availability of a larger number of attorneys who practice veterans benefits law who may be advising their clients to appeal to the Court.  Even Board decisions that are not total denials, but rather grants of benefits, may result in an appeal to the Court if the claimant believes that he or she should have a higher rating or an earlier effective date for benefits than that awarded by the Board.

The Court's success in productivity over the last fiscal year can be attributed to three factors: the additional experience acquired by the Court's judges, the increase in the number of law clerks to help the judges prepare cases for decision, and my decision as the Chief Judge to recall retired judges for statutorily authorized periods of 90 days to assist in case resolution.  To date, five retired judges have been recalled to provide service to the Court.  Although their service does add to the Court's output, there are challenges in supporting them adequately.  Presently, we must redirect the efforts of our Central Legal Staff attorneys from their routine case screening to law-clerk duties for our recalled judges.  Continuing through fiscal year 2008, three new attorney positions within the Central Legal Staff will allow us to address the staff workload imbalance or shortage created by the need to provide adequate support for recalled-retired  judges.

We are considering these and other initiatives to enhance our ability to reduce our pending caseload – but not at the expense of forfeiting due process or limiting the opportunity to give each case the benefit of our full and careful judicial review.  The following actions potentially will assist us in meeting the challenges presented by the upsurge in appeals to this Court:

First, our retired judges are recall eligible under 38 U.S.C. § 7299.  If recalled, a retired judge is statutorily obligated to serve 90 days each year.  If a retired judge's circumstances permit and the judge so chooses, another 90 days of service may be provided for a maximum of 180 days in a calendar year.  The critical piece in deciding to recall judges is to recall them at a time when their availability can be most useful.  But, there are space and staffing issues accompanying any recall decision that must be addressed.  The Court is currently budgeted with three staff attorneys to support recalled judges.  To recall at least two judges at one time requires additional space, support staff, and security arrangements.  We are also looking for ways in which their service might practically and productively be used that is most compatible with the Court's existing operations and procedures.

Second, the Court's Rules Advisory Committee has recommended the creation of a joint appendix as the record on appeal instead of using the current Designated Record.  A joint appendix is a condensed record on appeal that is limited to just the documents from the claims file that principally are relied upon by both parties.  It is the form of record used by the Federal Circuit when it reviews appeals from decisions of our Court.  Use of a joint appendix could expedite review at the Court by focusing consideration only on documents relevant to issues argued on appeal.  Currently, the rules of Court afford the parties at least 90 days to agree upon documents from the claims file that are relied upon for creating the record on appeal.  Requests or motions to extend that time period normally are granted to insure a complete and accurate record.  Using an agreed-upon joint appendix would reduce the required review of voluminous records, as well as shorten the time to have the case ready for a judge's review.  The Court is presently receiving and reviewing public comments submitted upon this proposed rules change.

 Third, in appropriate cases where the appellant is represented, we are considering adopting a practice often used in other federal courts of summarily disposing of such cases without explanation.  This option holds significant potential given the caseload in chambers.  A summary disposition states only the action of the court, without giving its rationale.  It might state something like, "On consideration of the record on appeal and the briefs of the parties, the decision of the Board of Veterans' Appeals is hereby Affirmed/Reversed/Remanded."  However, since the Court's inception one of its hallmark policies concerning the resolution of veterans' cases has been to provide to a veteran an explanation of the reasons for the Court’s decision.  We have always adhered to that policy in disposing of single-judge matters, as well as in panel decisions.  Summary action is a departure from that policy but an action worth considering.  The Court's rationale could be explained to the appellant by his or her counsel.  This option, as well as all the other options I have listed, was highlighted at the Court's Judicial Conference in April 2006, which was attended by many of the Court's practitioners – both private attorneys and VA counsel as well as Veterans' Affairs Committee congressional staff.  The subject was also raised in a Bar and Bench Conference held last month.

Fourth, we are working on implementing a case management/electronic case filing system (e-filing).  The Court has partnered with the Administrative Office of the United States Courts to acquire and use the software and e-filing system already developed for the Article III courts.  Indeed, ten of the thirteen circuit courts of appeals now have that capability.  Our goal is to have the first phase of e-filing implemented by June 2008.   The availability of electronic filing should enable us to reduce some of the administrative delays associated with processing an appeal.  Briefs could be filed faster, and if the Department of Veterans Affairs moves to a compatible paperless claims file, significant time savings could be achieved in obtaining an appellate record.  It would also alleviate our current shortage of space for file storage.

The Court's Central Legal Staff has contributed mightily to case disposition, through their dispute-resolution efforts.  We are considering other creative ways to make even greater use of these attorneys, retired judges, and perhaps appointed magistrates or mediators in deciding cases faster. Certainly, for alternative dispute resolutions, we want the parties coming to the table to have full authority to commit to a thoughtful resolution consistent with the law, due process, and the interests of justice.

Finally, the Court is continuing its efforts with the General Services Administration, to work towards making a Veterans Courthouse and Justice Center a reality.  Our present space is or will be inadequate for the type of caseload we are now experiencing.  Significantly, the current lease of three floors of a commercial building that is our courthouse expires in October 2010.  Thus, we need to explore every feasible option quickly because having an appropriate court facility for handling this increased appellate caseload requires several years of lead time.  Adequate space is crucial if we are to make efficient use of recalled judges and any future full-time active judges in residence at the

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Court.  More importantly, the U.S. Court of Appeals for Veterans Claims is the only federal national court without its own dedicated courthouse.  It is especially time now to have a dedicated courthouse that is a lasting symbol of justice and an expression of the nation's gratitude and respect for the sacrifices of America's sons and daughters who have served in the Armed Forces, and their families.  We look forward to your committed support for this worthy project.

Simply stated, we are implementing actions to best meet the demands of an increased docket – but not at the expense of forfeiting due process or limiting the opportunity to give each case the benefit of our full and careful review.  I take my case-flow management responsibilities very seriously and have full support from all judges.  We are properly motivated, collegial, and dedicated to rendering thorough and timely decisions.  It must be remembered that the Court does not adjudicate the facts of these cases for VA.  The appellants already have received perhaps many adjudications and have a decision on their claims.  The Court provides independent judicial review of VA's decisions for legal error and in doing so provides legal precedent that will promote uniformity and fairness in the claims adjudication process.  All may rest assured that no week at the Court goes by without a dialogue among the judges and staff on how to decide these cases efficiently and thoroughly.

That summarizes the Court's challenges and our work to meet them.  On behalf of the judges and staff of the Court, we appreciate very much your past support and continued assistance.