MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE:

As the Chief Judge of United States Court of Appeals for Veterans Claims (the Court), I exercise responsibilities as the Chief Administrative Officer of the Court.  It is in that capacity, and in the spirit of cooperation between the legislative branch and a national court of record that I join you today to present the Court's views on the proposed legislative changes concerning the Court that are offered in "The Veterans Disability Benefits Claims Modernization Act of 2008, HR ____."

H. ____ – Title III – § 301 – Annual Reports on Workload of United States Court of Appeals for Veterans Claims

Section 301 of the legislation proposes to add to title 38 of the U.S. Code a new section 7288 that would require the Court to submit to the Senate and House Committees on Veterans Affairs an annual report summarizing the Court's workload. 

The Court's longstanding practice has been to produce an Annual Report on its workload.  This report is provided routinely with the Court's budget request, and whenever requested by Congress.  Additionally, the report is published on the Court's website, and permits the public to compare the Court's performance over the course of time.  The Annual Report is modeled after the statistical report compiled and issued each year by the Administrative Office of the United States Courts.  Indeed, our automated case-tracking system was designed to provide statistics modeled after that report, which are then compiled and reconciled by the Clerk of the Court.  Our current reporting practice provides much of the data identified in the proposed legislation.  The Court has responded and will continue to respond to appropriate requests regarding the Court's caseload, including the items in the proposed legislation.  We leave to Congress' discretion whether codification of this practice is necessary. 

H. ____ – Title III – § 302 – Modification of Jurisdiction and Finality of Decisions of the United States Court of Appeals for Veterans Claims

Section 302 of the legislation proposes to amend 38 U.S.C. § 7252 by adding a new paragraph that reads: "(3) With respect to any appeal filed by a claimant, the Secretary may not make an assignment of error or concede an error not raised by the appellant, without first obtaining written consent from the appellant."  It is my view that this provision has serious jurisprudential concerns requiring Congress' careful consideration. 

First, although the amendment requires a veteran's consent to a concession of error by the Secretary, this provision presents potential ethical ramifications that must be considered before prohibiting an attorney, who is an officer of the Court, from identifying to the Court what is believed to be a prejudicial error in the Board decision on review.  However, I leave it to the Secretary to address this consideration. 

Further, requiring the Secretary to obtain written consent from an appellant not only will likely cause confusion for some appellants, especially those unrepresented, but almost certainly will contribute to delay in the legal review of all appeals.  Timely appellate review by the Court is of great importance to veterans, VA, the Court, and Congress.  And, as I have stated recently in a Congressional response, the most obvious and direct way to reduce the amount of time an appeal remains pending before the Court is for the parties to reduce the number of motions for extensions of time that are filed.  In fiscal year 2007, the parties requested over 13,000 extensions of time to prepare and file the record, prepare and file the briefs, and to respond to attorney fee applications.  Appeals cannot be submitted to the judges for decision until the parties have completed the briefing process.  The legislative proposal requiring the Secretary to obtain written consent from an appellant before raising legitimate issues not already raised by the appellant is sure to add to the extensive number of motions for extensions of time that are filed with the Court.  Additionally, if written consent is not secured, and the Secretary is precluded from bringing to the Court's attention errors not raised by the appellant that could be corrected "the first time", there is potential for repetition of that error if the matter is otherwise returned to VA for readjudication. 

Finally, this amendment potentially creates issues involving post decisional matters.  In an attorney fees application filed pursuant to the Equal Access to Justice Act, the Court must decide whether the Secretary's actions in the litigation were "substantially justified."  Making this determination within a system that could prevent the Secretary from identifying potentially prejudicial errors would be extremely difficult.  Further,  I can anticipate that questions would arise as to whether a veteran waives an error and is precluded from later arguing it if he refuses to consent to its presentation by the Secretary.

Section 302 also amends section 7252(a) of title 38, United States Code, by mandating that the Court "may not affirm, modify, reverse, remand, or vacate and remand a decision of the Board without first deciding all assignments of error raised by an appellant for each particular claim for benefits."  For the reasons discussed below, the Court believes such legislation is not necessary and indeed would slow down the Court's efforts to resolve appeals timely.

In conducting appellate review, the Court recognizes the well established concepts of employing judicial restraint and conserving judicial resources in determining whether to address a particular argument when rendering a decision.  Several factors are weighed in employing these concepts.  Indeed, 38 U.S.C. § 7261(a) directs that the Court decide all relevant questions of law that are "necessary to its decision and when presented."  To act within this mandate requires a balancing of interests by the Court.  As observed by Chief Judge Posner in a concurring statement in Rodriguez v. Chicago: "It is a matter of judgment whether to base the decision of an appeal on a broad ground, on a narrow ground, or on both, when both types of ground are available.  If the judges are dubious about the broad ground, then they will do well to decide only on the narrow ground; but if they are confident of the broad ground, they should base the decision on that ground (as well as on the narrow ground, if equally confident of it) in order to maximize the value of the decision in guiding the behavior of persons seeking to comply with the law."  156 F.3d 771, 778 (7th Cir. 1998) (Posner, C.J., concurring).  Similarly, at times, in deciding to not address certain allegations of error, judges of our Court have concluded: "A narrow decision preserves for the appellant an opportunity to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the Board later rule against him."  Best v. Principi, 15 Vet.App. 18, 20 (2001).  The Court has also recognized that in certain instances it is prudent to address multiple arguments, and that a judge has discretion to "determine that, while it is not necessary, it may be appropriate to address multiple allegations of error in remanding a case."  Mahl v. Principi, 15 Vet.App. 37, 38 (2001). 

The Court is aware that the practice of often deciding cases on the narrowest grounds has been discussed at length by practitioners in many venues, and the Court, through its opinions and in other settings (such as judicial question-and-answer sessions at the Court's Judicial Conference and its Bench and Bar Conference) has participated in this dialogue.  We are sensitive to this issue and have strived to respond to the concerns of the litigants who practice before us.  As one of our judges stated at the Court's 2006 Judicial Conference: "I believe that the Court has listened to these comments and taken them to heart. . . . [W]e are trying to reach more of the issues [raised on appeal].  But in certain instances, clearly jurisprudentially it makes more sense not to reach them."

I want to make clear that although the Court may not make a "decision" on every argument in every case, we do consider every assertion of error raised by the appellant and the Secretary, and give thoughtful deliberation on whether the Court's decision should specifically address that argument.  Indeed, I can say with confidence that all of my colleagues are sensitive to the lengthy adjudication process that many veterans have endured by the time their appeals reach our doors, and my colleagues are cognizant of the wishes of both parties to have their arguments heard and considered.  Other factors are at play, however, in determining whether it is necessary, appropriate, or prudent to expend resources and make binding determinations on particular arguments.

When conducting judicial appellate review, the Court, like all other appellate courts, does not engage in fact-finding; appeals must be considered based on a record established while the matter was pending before VA.  Many errors argued to the Court are procedural in nature, and if persuasive and prejudicial, result in the Court vacating the Board's decision and remanding the matter to VA.  A remand of this nature directs VA to correct the procedural errors, conduct additional evidentiary development on the claim that results from the correct procedure, and then, considering anew all of the evidence obtained and arguments raised, issue a new decision.  Where such a remand has been ordered, often other allegations of error become factually moot, and even if persuasive afford an appellant no greater remedy than that which has already been secured – a remand of the matter with direction that VA readjudicate the claim.  For example, if the appellant argues that the Board erred in failing to address a specific authority or piece of evidence, a judge can require that such evidence or authority be addressed on remand without deciding whether it was sufficiently raised or that it was error not to address it the first time.   Or, if an appellant argues that he did not have an opportunity to submit to the VA adjudicator a particular piece of evidence, then he or she will have that opportunity on remand regardless of whether a judge decides it was error in the original decision.    

Likewise, if an argument is persuasively made that VA failed to take required developmental steps or to notify a veteran of how to establish entitlement to benefits, the Court may vacate the Board's decision and remand the matter so that the error may be corrected and the record properly developed.  There is no need to rule on other factual arguments that are based on an improperly developed record.  Knowing that VA will reopen the factual basis upon which the claim will be adjudicated and issue a new decision based on all of the evidence, a judge may reasonably exercise his or her discretion in not making a specific determination on other arguments, such as the sufficiency of the Board's analysis of the evidence.  To do so would be to rule on a matter that would no longer have legal consequences because the Board's decision is no longer valid or useful to the determination.  Therefore, it is my view that to statutorily require that the Court mechanically address "all assignments of error," regardless of their relevant weight or importance, would have an adverse affect on the Court's ability to manage its sizable caseload and to sustain a satisfactory level of production, and would be wasteful of Court resources with no benefit flowing to veterans.  The principle of judicial restraint counsels that "when a court can resolve a case based on a particular issue, it should do so, without reaching unnecessary issues."  Black's Law Dictionary (7th ed. 1999).

Moreover, there are certain arguments, such as Constitutional challenges, that courts deliberately do not reach unless necessary.  For example, the U.S. Supreme Court recently reiterated that there is a "fundamental principle of judicial restraint that courts should neither "'anticipate a question of constitutional law in advance of the necessity of deciding it'" nor "'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.'"  Wash. State Grange v. Wash. State Republican Party, 128 S.Ct. 1184 (March 18, 2008) (quoting Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (quoting Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885)).  Requiring the Court to decide all assertions of error would not only unnecessarily expend judicial resources, but could operate contrary to this principle or require us to make decisions beyond the bounds of the "case or controversy" requirement of Article III of the U.S. Constitution.

Further, I anticipate that defining when an argument has been raised, or sufficiently raised such that it must be addressed, could be problematic and result in confusion and disagreement.  The legal content of appellate briefs filed with the Court, and particularly the  numerous informal filings by unrepresented or pro se appellants, varies greatly, ranging from cryptic statements to lengthy submissions, and often the particular allegations of error are unclear.  The Court endeavors to address the allegations that have merit and to clearly communicate to the parties why it is ruling in a particular way.

Finally, and very importantly, it must be recognized that although the appellant may believe that all of his or her assignments of error have merit, that belief may not be realized.  As observed in Best, supra, if the Court rules that some of the errors raised have no merit, that determination is binding and those specific errors may not be raised in any remand otherwise ordered by the Court.  Such a situation could work to the detriment of veterans, who would otherwise have the opportunity to develop and present any such arguments on remand.  It could also cause potential further delay in the appellate review process because the appellant would  have the right to contest that Court decision by appealing to the U.S. Court of Appeals for the Federal Circuit.

Simply stated, it is my view that section 302's proposed limitation on the Court's discretion to decide alleged assignments of error could have numerous unintended negative consequences for appellants and in the promptness of our judicial review.  I assure the Committee that each judge strives to conduct judicial review responsibly and consistently, and thus I believe this amendment to 38 U.S.C. § 7252 is not necessary.

Conclusion

On behalf of the judges of the Court, I thank you for your consideration of our views on this proposed legislation.