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Witness Testimony of The Honorable Bruce E. Kasold, Chief Judge U.S. Court of Appeals for Veterans Claims

MR. CHAIRMAN AND DISTINGUISHED MEMBERS OF THE SUBCOMMITTEE:

    I am pleased to appear before you today, and I commend the committee's effort in working to ensure that veterans receive decisions on their claims in the most accurate and efficient manner possible.  My colleagues and I at the United States Court of Appeals for Veterans Claims are constantly striving to provide fair, comprehensive, and prompt judicial review of decisions appealed from the Board of Veterans' Appeals to the Court.
 
    To this end, a little over five years ago, my predecessor, Chief Judge Greene, noted an ever increasing number of appeals being filed at the Court and requested authorization for two additional judges, bringing the total number of active judges to nine.  I am happy to report that as of the end of last year, all nine positions are filled.  It takes about one year for a judge to fully get up to speed, but we are in a great position to handle our current caseload.  Of interest, the number of appeals filed last year dropped slightly from just under 4,000 in fiscal year (FY) 2011 to just under 3,700 in FY 2012.  This is still a large number of appeals coming in – in fact 1,500 more per year than we were averaging 10 years ago.  Last year the Court as a whole disposed of over 4,300 appeals, so I can proudly say that our number of appeals OUT exceeded the number coming IN by 700.  Indeed, the Court remains one of the busiest federal appellate courts based on the numbers of appeals filed and decided per active judge.  In addition to appeals, the Court receives petitions pursuant to its authority to issue extraordinary writs in aid of its jurisdiction under the All Writs Act, (28 U.S.C. § 1651(a)), and applications for representation fees and expenses authorized under the Equal Access to Justice Act (EAJA) (28 U.S.C. § 2412(d)).  With nine judges on board and with our single-judge decision authority, I do not anticipate recalling more than one of our retired Senior Judges this year.
    About five years ago the Court modified its procedures to require that most cases involving representation go through a staff conferencing process with one of our Central Legal Staff (CLS) attorneys.  This requirement directs the appellant to identify the specific contested issues to counsel for the Secretary of VA, and then the parties participate in a conference conducted by a CLS attorney, where the issues are discussed and the parties attempt to come to an agreed resolution.  On average, about 65-70% of our cases are conferenced, and of those, approximately 50% end up being resolved, generally with an agreement to remand the claim for additional development.
    In trying to further reduce the average span of time it takes for resolution of an appeal, when I became Chief Judge I identified two main areas of un-programmed delay in our case processing. One was the time it took our Central Legal Staff to prepare case summary and research memoranda in advance of forwarding cases for judicial review, and the other was the time it took to decide cases once they were assigned for judicial review.  I am pleased to state that with some administrative adjustments and hard work by all, we have significantly reduced the time it takes for most fully-briefed cases to get to chambers, from an average of almost 120 days to 30 days.  We also have appreciably reduced the time from case assignment to decision by a judge, with most decisions being issued within 90 days of assignment to a judge.  Panel cases, and cases stayed pending a panel decision are the prime exception.
    But, litigation is time consuming.  Once an appeal is filed, 60 days are allotted for the Secretary of VA to provide to the Court the Board decision being appealed, and to serve on the veteran the record upon which VA's decision was based.  Time is built in for resolving any disputes as to the record.  When an appellant is represented from the start, pre-briefing conferencing is ordered.  If resolution is achieved through the pre-briefing conference process  the median time from filing an appeal to issuance of an order effecting the agreed resolution is about six months.  When resolution is not reached, the appellant then has another 30 to 60 days to file a written brief,  the Secretary has 60 days to file a response brief, and the appellant has 14 days to file a reply.  Then, the Secretary has 14 days to file the Record of Proceedings, which is in essence the distilled record that the parties contend is relevant to their arguments.  In the best case scenario, in the sense that no delays or extensions have occurred, 245 days have already lapsed at this point.  The briefs and Record of Proceedings are thereafter reviewed by CLS and prepared for transfer to chambers, which as I noted is now accomplished on average within 30 days, and a decision generally is rendered by a judge within 90 days thereafter.    
    We have examined whether the briefing process can be streamlined further, but key parties representing the Secretary and counsel for appellants have expressed their objection to shortening the time to prepare their briefs – which time, by the way, is not substantially different from the time provided in appeals to the other Federal appellate courts.  Nevertheless, this is an area that I will continue to assess.  
    Also, in FY 2012, 44% of the appeals were filed by appellants without representation, but the number of cases where the appellant remained unrepresented at the time of decision dropped to 27%.  There is no specified time by which a pro se appellant may seek counsel, but when a pro se appellant finds representation, that appeal generally "re-starts" in the sense that it goes through the pre-briefing conferencing process or re-briefing is requested.  The result often is additional time added for the processing of those types of appeals.   Of further note, and of great impact, is the fact that over 5,000 motions for extensions of time to file a brief or take some other action were filed in FY 2012, about equally divided between appellants and the Secretary.  If each motion constitutes a request for an additional 45 days of processing time, it is easy to see how the life span of an average appeal can grow significantly.  This is another area that we have monitored closely and continuously discuss with our practitioners.  
    As mentioned earlier, panel decisions take longer.  Any judge can send a case to panel so that complex, novel, or reasonably debatable issues can be resolved by panel.  Additionally, all dispositive decisions are circulated among all of the judges prior to issuance.  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 process helps ensure that single judges do not make decisions that should be the subject of precedential panel decisions.  Further, once a single-judge decision is issued, either party may request reconsideration and/or panel review, and whenever a request for a panel decision is made, a panel of three judges will review the appeal.  Thus, the Court's rules permit single-judge decisions in an effort to promptly resolve cases, but safeguards exist to ensure that single-judge decisions are supported by existing precedent, and those safeguards add processing time.
    Additionally, during the circulation of a draft opinion, 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.
    Following a final decision of our Court, an additional appeal to the U.S. Court of Appeals for the Federal Circuit may be filed.  The Federal Circuit has jurisdiction to review our decisions that interpret the law and regulations, but not those decisions that apply the law and regulations to the facts of a particular case.  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.  The Supreme Court has considered a handful of our cases over the years.  All of these procedural safeguards can add to the processing time of an appeal.
    Relevant to today's hearing topic, over the past several years my Chief Judge predecessor and I have testified and advocated that Congress should establish a commission to evaluate the process of appellate review of veterans benefits decisions and to make recommendations on how to improve that system.
    Our current system of judicial review of veterans benefits is unique with that second layer of appellate court review as a matter of right before one may seek review by the U.S. Supreme Court.  That structure may have been prudent when the Court was in its infancy, but now, with 25 years of veterans jurisprudence, it seems time to consider the added value of the second layer of federal appellate review.  That added layer comes at a cost to the system as a whole.  Although each tier of review affords veterans another "bite at the apple" so to speak, which may be desirable to one who has been unsuccessful, that added level of review also adds delay to the entire process before finality is reached.  The delay reaches not only the particular veteran in the case on appeal, but all pending cases that may be impacted by that decision.  
    Is the added layer adding value?  In the words of Supreme Court Justice Robert H. Jackson: "Reversal by a higher court is not proof that justice is thereby better done.  There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed.  We are not final because we are infallible, but we are infallible only because we are final."  Thus, I continue to recommend that a commission be appointed to critically review the costs and benefits of the current two-tiered system of judicial appellate review by right.  Such an independent commission might identify beneficial changes to the current appellate structure that could result in reduced time that veterans wait to have their claims finally and fairly decided.  
    In closing, on behalf of the judges and staff of the Court, I express my appreciation for your past and continued support, and for the opportunity to provide this testimony today.