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Hon. Bruce E. Kasold, Chief Judge, U.S. Court of Appeals for Veterans Claims


  • H.R. 1647 (authorizing submission of claims at any regional office) and section 2 (waiver of regional office review of new evidence) of H.R. 1484 concern operations within the purview of the Department of Veterans Affairs (VA).  The Court has no special insight and no further comment on these proposals.
  • The Court supports creation of a Commission, as generally proposed in section 3 of H.R. 1484, with the suggestion that subsection (b)(1) of section 3 be modified to focus the scope of the Committee's duties on evaluating the judicial appellate review process, as is the stated scope in the title of section 3.  This can be accomplished by deleting the words "administrative and" from subsection (b)(1).


Good Morning.  Thank you Mr. Chairman and members of the Committee for asking for the views of the U.S. Court of Appeals for Veterans Claims (Court) on two recent bills introduced this year: H.R. 1484 ("Veterans Appeals Improvement Act of 2011") and H.R. 1647 ("Veterans' Choice in Filing Act of 2011").  Because H.R. 1647 (authorizing submission of claims at any regional office) and section 2 (waiver of regional office review of new evidence) of H.R. 1484 concern operations within the purview of the Department of Veterans Affairs (VA), I have no special insight to offer the Committee and leave further comment to the Secretary and Chairman of the Board who would be impacted directly by those provisions.


The Board of Judges of the Court fully supports the creation of a Commission to study judicial review of veterans' benefits determinations, as the title of Section 3 of H.R. 1484 suggests, and to make recommendations for improvement as required by subsection (h).  Indeed, the time is right for a working group to step back and review the judicial appellate review system we have, critically examine its strengths and weaknesses, and identify measures that could benefit the overall judicial appellate review process. 

Although not specifically stated in H.R. 1484, I would anticipate and encourage the Commission to weigh the costs and benefits of the unique two-tiered federal appellate review system currently in place for veterans' benefits decisions.  Similar action was taken in the past with regard to the U.S. Court of Appeals for the Armed Forces, whose appeals are now final, subject to certiorari review by the Supreme Court.  With two decades of experience in appellate review of veterans' benefits claims, and the resultant seasoned body of case law, it is time to consider the added value of a second layer of federal judicial appellate review.

No doubt, continued bites at the apple, so to speak, will be sought by some, but at the end of the day, as the Supreme Court recently recognized:

It is the Veterans Court, not the Federal Circuit, that sees sufficient case-specific raw material in veterans' cases to enable it to make empirically based, nonbinding generalizations about "natural effects." And the Veterans Court, which has exclusive jurisdiction over these cases, is likely better able than is the Federal Circuit to exercise an informed judgment as to how often veterans are harmed by which kinds of notice errors.

Shinseki v. Sanders, 129 S.Ct. 1696, 1707 (2009).

Indeed, I suggest it cannot be argued convincingly that a veteran, the taxpayer, or anyone is best served by waiting nearly two years to have a decision of the Veterans Court overturned by the Federal Circuit, only to wait approximately another two years to have the Federal Circuit overturned by the Supreme Court, as was the situation in the case of Shinseki v. Sanders, 129 S.Ct. 1696, 1707 (2009), or to have a veteran wait 18 months to have a decision of the Veterans Court upheld by the Federal Circuit, only to wait another 9 months to have that decision overturned by the Supreme Court, as was the situation in the recently decided case of Henderson v. Shinseki, 131 S.Ct. 1197 (Mar. 1, 2011).  Because these cases involve issues of law, their impact is far reaching, often causing cases to be stayed, reconsidered, or readjudicated below.  The extra step in the appellate process is unique, time consuming and costly, and worthy of examination for its continued need.

We also support Commission review of whether the Court should have the authority to hear class action or associational standing cases.  As the Committee is no doubt aware, the Court early-on indicated that it may not have authority to permit a class action suit, but the actual basis for denying the class action to proceed in that case was that it would be unmanageable and unnecessary.  See Lefkowitz v. Derwinski, 1 Vet.App. 439 (1991) (noting that it "appear[s]" Court lacks authority to permit class action, and rejecting class action in that case as unmanageable and unnecessary), Judge Kramer concurring in result (noting that the Court has the authority to grant class action where all petitioners meet jurisdictional requirement, and agreeing that granting such status was unwise on policy grounds as stated by majority).  Similarly, the Court has addressed associational standing and determined in a 4-3 decision that the Court did not have the authority to recognize such standing.  See American Legion v. Nicholson, 21 Vet.App. 1 (2007), Judges Kasold, Hagel, and Schoelen dissenting.  I recommend both cases to the Committee and the Commission as providing an excellent starting point for identifying and analyzing the issues raised by class action suits and associational standing litigation, which include, inter alia, whether such authority is needed or even helpful, and what effect it might have on the timely judicial review of appeals.

I do note, however, what appears to be a significant disconnect between the scope of the Commission study as laid out in the title of section 3, and the duties of the Commission as stated in subsection (b)(1) of section 3, which includes an evaluation of the "administrative" as well as the "judicial" appellate review processes.  The administrative appellate review process involves significantly different issues than the judicial appellate review process, and is not only beyond the scope as designated in the title of section 3, its inclusion within the duties of the Commission very well may place so much within the Commission's purview that it would not permit the detailed focus sought on either the administrative or the judicial appellate review process, particularly not in the time provided.

Indeed, the differences between the administrative and judicial appellate review processes are huge.  The administrative appellate review provided to the veteran is part and parcel of the claims adjudication process conducted by VA.  The administrative appellate review includes a de novo review of the evidence, the benefit of the doubt in weighing the evidence, and the ability to submit additional evidence.  It involves a symbiotic relationship between the Secretary and the veteran, with both parties working to maximize benefits for the veteran, as permitted by law.  Perhaps most significantly, these administrative adjudications apply only to the case at hand and set no precedent or policy that must be used to decide future cases.

Judicial appellate review, on the other hand, takes place only after the claim has been administratively adjudicated by VA.  Judicial appellate review is limited to a review of the record upon which VA made its decision.  Moreover, the parties (the Secretary and party seeking benefits) are adversaries, each arguing that the decision below was either correct or wrong, and that the remedy for any error should be reversal or remand.  Judicial appellate review does not permit a substitute of the Court's view for the Board's fact finding, unless such fact finding is clearly erroneous.  And, whereas administrative appellate review is focused solely on the application of law as interpreted by the Secretary in the individual case under consideration, judicial appellate review permits interpretations of the law by federal judges appointed by the President upon the advice and consent of the Senate.  In contrast to adjudications by VA, the Court's interpretations of law are precedential, and binding not only in the case at hand, but in all cases decided henceforth by the Secretary and the Board.

Thus, to maintain integrity between the Department of Veterans Affairs claims adjudication process (including the administrative appellate review process) and the judicial appellate review process (which is entirely independent of VA and where the Secretary is one of the adversarial parties), and to permit focused and timely review of the judicial appellate review process, I recommend that subsection (b)(1) of section 3 be amended by deleting the words "administrative and", thus focusing the Commission's duties on evaluation of the judicial appellate review process, consistent with the title of the section.  Should the Committee believe it is time to study the VA claims, administrative adjudication process, I would recommend a separate Commission be established for such study.

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