[Senate Hearing 109-694]
[From the U.S. Government Publishing Office]
S. Hrg. 109-694
BATTLING THE BACKLOG PART II: CHALLENGES FACING THE U.S. COURT OF
APPEALS FOR VETERANS CLAIMS
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HEARING
BEFORE THE
COMMITTEE ON VETERANS' AFFAIRS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JULY 13, 2006
__________
Printed for the use of the Committee on Veterans' Affairs
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COMMITTEE ON VETERANS' AFFAIRS
Larry Craig, Idaho, Chairman
Arlen Specter, Pennsylvania Daniel K. Akaka, Hawaii, Ranking
Kay Bailey Hutchison, Texas Member
Lindsey O. Graham, South Carolina John D. Rockefeller IV, West
Richard Burr, North Carolina Virginia
John Ensign, Nevada James M. Jeffords, (I) Vermont
John Thune, South Dakota Patty Murray, Washington
Johnny Isakson, Georgia Barack Obama, Illinois
Ken Salazar, Colorado
Lupe Wissel, Majority Staff Director
Bill Brew, Minority Staff Director
C O N T E N T S
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July 13, 2006
SENATORS
Page
Craig, Hon. Larry, Chairman, U.S. Senator from Idaho............. 1
Akaka, Hon. Daniel K., Ranking Member, U.S. Senator from Hawaii.. 2
Jeffords, Hon. James M., U.S. Senator from Vermont............... 3
Burr, Hon. Richard, U.S. Senator from North Carolina............. 4
Murray, Hon. Patty, U.S. Senator from Washington................. 20
Thune, Hon. John, U.S. Senator from South Dakota................. 30
WITNESSES
Greene, Hon. William P., Jr., Chief Judge, U.S. Court of Appeals
for Veterans Claims; accompanied by Norman Herring, Clerk of
the Court, U.S. Court of Appeals for Veterans Claims........... 4
Prepared statement........................................... 7
Response to written questions submitted by:
Hon. Larry E. Craig...................................... 13
Hon. Daniel K. Akaka..................................... 15
Hon. John Thune.......................................... 16
Terry, Hon. James P., Chairman, Board of Veterans' Appeals,
Department of Veterans Affairs................................. 31
Prepared statement........................................... 34
Response to written questions submitted by Hon. Daniel K.
Akaka...................................................... 37
Attachment A............................................. 42
Violante, Joseph A., National Legislative Director, Disabled
American Veterans.............................................. 84
Prepared statement........................................... 85
Response to written questions submitted by Hon. Daniel K.
Akaka...................................................... 88
APPENDIX
Chisholm, Robert V., Past President, National Organization of
Veterans Advocates, prepared statement......................... 93
BATTLING THE BACKLOG PART II:
CHALLENGES FACING THE U.S. COURT OF APPEALS FOR VETERANS CLAIMS
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THURSDAY, JULY 13, 2006
U.S. Senate,
Committee on Veterans' Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in room
418, Russell Senate Office Building, Hon. Larry E. Craig,
Chairman of the Committee, presiding.
Present: Senators Craig, Burr, Thune, Akaka, Murray, and
Jeffords.
OPENING STATEMENT OF HON. LARRY E. CRAIG, CHAIRMAN, U.S.
SENATOR FROM IDAHO
Chairman Craig. Good morning, ladies and gentlemen. The
Committee on Veterans' Affairs of the U.S. Senate will come to
order.
Today, the Committee will continue to look at the veterans'
claims adjudication and appeals system. Last year, we held
hearings to examine challenges facing the Department of
Veterans Affairs in processing and deciding veterans' claims
for benefits. This morning, we will discuss some serious
challenges facing the U.S. Court of Appeals for Veterans
Claims, which hears appeals from those decisions. More
importantly, we will discuss what measures could be taken to
help the Court deal with these challenges.
For this discussion, we are very pleased this morning to be
joined by the Court's Chief Judge, William P. Greene, Jr., and
he is accompanied by the Clerk of the Court, Norman Herring.
Gentlemen, we thank you very much for joining us this morning.
We are also pleased that the Chairman of the Board of
Veterans' Appeals, James Terry, is here for this discussion. He
is accompanied by Assistant General Counsel Randy Campbell.
They will be joined on the panel today by Joe Violante of the
Disabled American Veterans. We welcome all of you.
Before I turn the floor over, I would like to comment on
why I have called this hearing today. I think Judge Greene
would agree that the past few years have been transitional
years for the Court. The last of the original judges--and the
Chief Judge who has previously stepped down is sitting in the
audience--who were appointed when the Court was first created
have all retired and six new judges were confirmed in their
places.
Also, the Court experienced a dramatic, unprecedented rise
in the number of new cases it is receiving. In fact, in fiscal
year 2005, the Court received over 3,400 new cases, which is 37
percent higher than the Court had ever received in a single
year. All this year, the Court expects to receive almost 3,600
new cases.
Those factors have undoubtedly contributed to what is now
the highest level of pending cases the Court has ever
experienced, over 5,800 cases. That is more than double the
number of cases that were pending just 2 years ago, and more
than three times the number of cases pending at the Court a
decade ago.
Recognizing these trends, the Court has asked for and been
provided with funding for additional staff in recent years. But
as you can see from the charts behind me, despite recent
increases in productivity, we are still in the red and taking
more cases on as we go.
If these trends continue, and it is a reasonable projection
outward, the number of pending cases may grow to almost 7,000
by the next year and to 10,000 within the next 5 years. As we
all know, whatever case comes into the Court must go back out,
so as the number of pending cases continues to grow, the
workload the Court will have to deal with in the future also
grows.
I know that since becoming the Chief Judge last August,
Judge Greene has been carefully examining various means of
dealing with this situation, such as recalling retired judges
and having judges conduct settlement conferences. Today, we
will discuss those options and others that may alleviate what I
think is a phenomenal caseload.
The bottom line is that if something is not done soon to
reverse this trend, veterans seeking justice from the Court,
and that is what this is all about, may have to wait in line
several years longer just to get their case before a judge. I
believe that is an untenable environment, particularly now,
with thousands of wounded servicemembers returning from Iraq
and Afghanistan. We must ensure that our veterans will receive
timely decisions on their claims, whether that decision is to
affirm or to remand or to reverse.
So at the end of the day, I hope this Committee and our
Nation's veterans will have some assurance that measures will
soon be taken to ensure that the Court can promptly dispense
justice in all veterans' cases, not just today, but for many
years to come. That is what this hearing is about this morning.
I am pleased to be joined by our Ranking Member, Senator
Akaka. Danny, I will turn to you for opening comments.
STATEMENT OF HON. DANIEL K. AKAKA, RANKING MEMBER, U.S. SENATOR
FROM HAWAII
Senator Akaka. Thank you very much, Mr. Chairman. Thank
you for calling this hearing today on this very important
topic, service to our veterans and justice. This hearing
continues the Committee's efforts to ensure that veterans'
claims are processed and adjudicated in a timely and accurate
manner.
Last year, the Committee held a hearing on the backlog of
claims at VA, including the Board of Veterans' Appeals. Today's
hearing will examine the appeals process at the Court of
Appeals for Veterans Claims.
For many veterans, the claims process can be an arduous
ordeal. By the time a claim reaches the Court of Appeals for
Veterans Claims, the veteran may have spent years navigating
through the VA system, awaiting final resolution on a claim.
Veterans deserve to have their pending issues resolved
fairly and in a reasonable amount of time. Ensuring the Court
of Appeals for Veterans Claims has adequate resources and
utilizes those resources in an efficient way will help meet
this goal.
Today, I hope we will hear what is working well and what is
not working so well, especially at the Court. Once we determine
where the problems reside, we can then explore what role the
Congress might play, alone or with others, in finding common-
sense solutions.
Judge Greene, I hope to hear from you about the various
means by which you are reviewing the Court to reduce its
pending caseload. Although not directly connected with the
hearing, I note my regret that Dr. Perlin has resigned as Under
Secretary. Personally, I feel badly about that, and we really
will miss him. I found Dr. Perlin to be a man of great
integrity who had the welfare of veterans as his highest
priority. VA has lost an important leader.
Mr. Chairman, I am happy to see that the Committee remains
active. Recently, the Committee favorably discharged several
important pieces of legislation and I am proud of the good work
we have accomplished as a Committee and accomplished together
along with our colleagues.
Thank you again, Mr. Chairman, and I thank the witnesses
for joining us today.
Chairman Craig. Senator Akaka, thank you very much.
We have also been joined by Senator Jeffords.
Jim, do you have any opening comments?
Senator Jeffords. Yes, I do, Mr. Chairman.
Chairman Craig. Please proceed.
STATEMENT OF HON. JAMES M. JEFFORDS,
U.S. SENATOR FROM VERMONT
Senator Jeffords. Thank you for holding this hearing. I
appreciate the witnesses taking time out of their busy
schedules to help us understand what problems there are with
the veterans' claim system and how we can improve its
functioning.
Veterans deserve the benefits to which they are entitled.
We all know that an exact determination of benefits owed is a
tricky matter and the courts are often required to sort out the
details in complicated cases. However, the veteran deserves
speedy and clear adjudication of the claim of benefits.
Over the years, Congress has worked hard in striking the
right balance between assistance to the veterans and
expeditious functions of the courts. I believe it is important
to revisit that balance at regular intervals to make sure that
we have it right.
With a record number of claims coming into the system, it
is incumbent upon us to make sure that the system functions
properly. I look forward to hearing today's testimony, Mr.
Chairman.
Chairman Craig. Jim, thank you very much.
We have also been joined by Senator Richard Burr.
Richard, do you have any opening comments?
STATEMENT OF HON. RICHARD BURR,
U.S. SENATOR FROM NORTH CAROLINA
Senator Burr. Thank you, Mr. Chairman. My only statement is
that I thank the Chair and the Ranking Member. I think this is
one of the most important hearings that we can have. I think it
is something we need to look at closely and I believe that it
is time we find a solution to the backlog that we have. I thank
the Chair.
Chairman Craig. Thank you very much.
Judge Greene, before I turn the microphone over to you, let
me recognize the retired Chief Judge who is in the audience
today, Frank Nebeker. It is great to have you with us, Judge.
Also, Judge Al Lance, who is with us, and Judge Mary Schoelen.
We thank you for being with us this morning and being a part of
the audience and the listening group.
This is a unique hearing in this regard, and I say to my
colleagues this. As we know, this Court is not an extension of
the Department of Veterans Affairs. It is a court that we
created in 1988 for the purpose of serving veterans' needs and
veterans' claims. It has seven judges, and as I have mentioned
in my opening comment, it has largely rotated out now all of
the original judges and we have a full complement of largely
new judges. All of that has happened over the last 3 years.
During that period of time, the statistics that are
represented by the charts behind me on the mantel, speak in
large part to what I believe is a sense of urgency to resolve
this issue and to get the Court on a path of declining numbers
of claims held over and growing numbers as it relates to
serving our veterans.
So with that, Judge Greene, we turn the microphone over to
you for your time and your testimony.
STATEMENT OF HON. WILLIAM P. GREENE, JR., CHIEF JUDGE, U.S.
COURT OF APPEALS FOR VETERANS CLAIMS; ACCOMPANIED BY NORMAN
HERRING, CLERK OF THE COURT, U.S. COURT OF APPEALS FOR VETERANS
CLAIMS
Judge Greene. Thank you very much, Mr. Chairman. Good
morning, Mr. Chairman, Ranking Member Akaka, Senator Jeffords,
Senator Burr. It is indeed a pleasure for me to be here with
you this morning. I welcome the opportunity to join you after
the invitation to discuss the current caseload at the U.S.
Court of Appeals for Veterans Claims. With me at the table is
Mr. Norman Herring, my Court Executive.
The court is a Federal Court of Appeals, charged with
conducting legal review of final Board decisions on veterans'
claims. Thus, the judges of the court do not adjudicate those
claims, but rather determine if the Board decision contains
prejudicial error or is legally correct.
Judicial review of decisions on veterans' claims is
relatively new. Until 1989, there were statutes precluding
judicial review of that VA agency decisionmaking. Thus, over
the past 17 years, there have been developments in veterans'
law that include many lawyers gaining expertise in veterans'
law, an awareness among veterans and their families of the
existence of veterans' appellate rights and the value of
judicial review, and there has been an increase in VA
adjudications of veterans' claims that produces cases for the
court's docket.
Thus, it hasn't been a surprise to me that all of a sudden,
we have this increase in appeals at the Court. I didn't know
whether that was part of my welcoming reception as the Chief
Judge, but if anyone looked at the statistics of the Board of
Veterans' Appeals decisions over the past 10 years, one could
see that just total denials by the Board were such a number
that certainly would overwhelm this Court if all those
individuals who receive total denials from the Board sought
appeal in our Court. For whatever reason over the past years,
they did not, but over the past 17 years with this growing
expertise, this maturing bar that we have in veterans' law, it
is definitely expected that we now would be receiving more
appeals.
The other unique thing about our Court is that no other
Federal court would be faced with the transition that we were
faced with as of August 2005. Where else in the Federal
judiciary system could, I, the junior judge, just a little over
2 years ago, suddenly become the senior judge, and have all of
the experience of the court departing? We have, however,
received six judges who are extraordinarily talented
individuals, who have taken veterans' law by the horn and are
making a difference to veterans. They are doing so with well-
tempered respect for legal precedent.
Thus, we are now ready to tackle the caseload before us. My
biggest challenge since August was to mold an effective, smooth
operating group of judges who would gain experience fast to
accomplish the task before us. The mission: to decide cases at
the Court in a timely, collegial, and quality manner.
As shown in the chart I provided to you in my written
remarks, which I ask to be included in the record----
Chairman Craig. And without objection, they are, certainly,
Judge.
Judge Greene. The indications are that from the beginning
of August 2005 to now, there has been an increase in the number
of cases decided by these judges. We are very pleased by that,
but we are not stopping at that success. We want to continue
that success, and as each year goes by, I am confident that we
will be able to decide even more cases. That won't, however,
help us at 7 judges to handle a caseload of 6,000, 7,000,
10,000 cases. That is a known fact.
In fact, as you may know, we are pursuing the possibility
of moving to a veterans' courthouse and justice center. One
observation that developed from the feasibility study is that
if this trend continues, just at 3,600 new cases each year, by
2010 when our lease expires in our current commercial facility,
we would need to have 9 full-time active judges, and any spikes
in the numbers of cases beyond 3,600 could be managed by
recalled retired judges. Well, that is based on 3,600, so I
have before me now the task of trying to plan on what about
5,000? What about 6,000? That is my next mission.
You have been provided a graph that depicts the numbers of
cases at our court. Let us examine that quickly. There are
5,850 cases at the Court. Of these, 3,598 are awaiting various
developments. It must be remembered that even though those are
cases coming in, they are not seen or touched by a judge until
certain other preliminary steps are taken and completed. These
preliminary steps are required in appellate procedure.
Unlike in other Federal appeals courts, in our court there
has to be a created an appellate record. In veterans' claims,
there is not necessarily a record when the appeal comes
forward. A record has to be designated. So there is time
consumed in designating the record. Once the record is
designated and filed, then the parties can file appellate
briefs. After the appellate briefs are filed, then the case is
ready for screening by the central legal staff, and then the
case is ready for review.
As I indicated in my written remarks, there are at least
240 days encountered in that process, and that is without any
requests for delays or motions for extensions of times for
acceptable reasons. Indeed, from August 2005 to now, we have
had 10,000 motions for extensions of time.
Many Federal courts, of course, have rules to follow and we
have adopted those rules. You have 60 days to file a brief. The
other party has 60 days to file a brief. If you request a
delay, the option is to deny it and you go forward without the
case having been briefed or you afford the opportunity for the
case to be briefed.
We are not oppressive, of course, in our review because
these are veterans' cases and we want the veteran to have his
or her day in court and we want the Secretary to have the
opportunity to be heard, as well. More importantly, the number
of cases that fall in this category, about 58 percent, are pro
se, i.e., they do not have legal representation. So
consequently, we have to be even extra careful to ensure that
that veteran who is not represented is afforded every
opportunity of due process within our system.
So once that time is consumed, we now have a case ready for
judicial review. Under those circumstances, it is very
difficult for us to identify that as a backlog. That is a
caseload with which we already start off with a year before we
can review the case.
The other figures on the graph, represent the numbers of
cases that go to the Federal circuit on appeal, which is 436.
Of course, decisions from that court also have an impact on the
types of cases that we end up having at our court, either by
reversing our decisions or remanding cases back to us for
whatever legal reason, or indeed, making a ruling of law that
impacts not only the cases at the court, but thousands of cases
at VA and, as a result, creates the potential for further
appeals. Those cases are in our inventory, but as I said, about
850 of them are not--they are cases that we have, in fact,
already decided.
That leaves about 920 cases that are in chambers, and that
indeed is a heavy caseload for 7 judges, but it is manageable.
We have reached the level of experience in this first year that
I am confident we will continue to be able to review these
cases as fast as possible with quality.
But as the case move toward review, those 3,000 cases, I am
monitoring our resources that can be applied to reviewing them.
These available resources include using the attorneys in the
central legal staff to perhaps conduct settlement conferences
based upon rules that have to be established, because the
current pre-settlement, or pre-briefing conferences occur much
earlier in the system. A more mediation-type conference would
occur probably after briefs are filed.
And, of course, recalling our retired judges. Currently,
there is bare bones support for supporting a recalled judge. I
have authority for one clerk and one secretary. That would not
provide or promote large efficiency of a recalled judge if you
were recalling for purposes of dealing with maximum numbers of
cases. If I were to call two or three recalled judges for the
maximum output that I think they could provide, then I would
need the accompanying staff to do so. I am sure that I can come
to you and seek that support if the need arises.
The critical piece that I have concluded is that I need to
call them at the time that would be most useful to addressing
the numbers of cases coming out of that briefing period through
the CLS; as they trickle out of CLS at about 120 to 130 cases
per month. Thus, we are getting near there, and as the Chief
Judge, I have begun consulting with 5 of the 6 retired judges
concerning their availability to be recalled within the next 6
months.
In an earlier meeting with the Chairman, I emphasized that
the court's challenge was that it was a new court with judges
having little experience. We are gaining that experience and we
want to continue that success.
We appreciate the interest of the Veterans' Affairs
Committee in our mission and productivity. Our discussions are
helpful in demonstrating that we have a shared goal in ensuring
that judicial review of these veterans' adjudicated cases is
conducted in a timely manner and consistent with the knowledge
that our veterans deserve the very best.
May I respond to your questions.
[The prepared statement of Judge Greene follows.]
Prepared Statement of Hon. William P. Greene, Jr., Chief Judge,
U.S. Court of Appeals for Veterans Claims
Mr. Chairman and distinguished Members of the Committee:
Thank you, Chairman Craig and Ranking Member Akaka, for inviting me
to join you today to examine the current caseload at the United States
Court of Appeals for Veterans Claims. Under 38 U.S.C Sec. 7252(a), the
United States Court of Appeals for Veterans Claims, a national court of
record established under Article I of the Constitution of the United
States of America, has exclusive jurisdiction to review decisions of
the Board of Veterans' Appeals. To obtain judicial review by the Court
of a final decision by the Board of Veterans' Appeals, a person
adversely affected by such decision must file a notice of appeal with
the Court within 120 days after the date of notice of the Board
decision is mailed. Thus, the U.S. Court of Appeals for Veterans Claims
provides judicial review of decisions by the Department of Veterans
Affairs that are generally final adjudications on claims for veteran's
benefits. Although it is inappropriate for me to discuss specific cases
before the Court and the deliberative process required for each
individual judge, I am available to discuss the Court's current
caseload including the sudden increase in appeals filed with the Court.
Over the past 10 years, the Court had averaged 2,374 new cases per
fiscal year (FY) and resolved an average of 2,114 cases, as well as
concluding action on anywhere from 226 to over 1,500 applications for
attorneys fees under the Equal Access to Justice Act (EAJA).
Additionally, there has been a carry over of cases from year to year,
in part because of formal and informal stays of proceedings. These
proceedings are typically stayed at the request of the parties or by a
judge because of another pending case that will resolve a similar
issue. And, pursuant to the time limits provided in the Court's Rules
of Practice and Procedure, it takes from 240 to 269 days (with time
given to the parties for mailing) for the record on appeal and the
briefs to be ready for review. This period can be extended based on
motions by the parties. Between July 1, 2005, and June 30, 2006, for
example, more than 10,000 motions for extensions of time to designate
the record or file a brief, almost all unopposed, were filed and
granted. Once the appellate record is ready, it is initially screened
and reviewed by one of seven attorneys in the Court's Central Legal
Staff to assess the issues and to determine if alternative resolution
is possible. The case is then assigned to a judge for decision. The
case is decided as quickly as practicable consistent with deliberative
due process.
Upon assuming the Chief Judge position in August 2005, I began to
see the Court's increasing caseload. Starting in April 2005, we started
receiving an average of more than 300 appeals each month compared to a
monthly average of roughly 200 appeals during the previous 8 years.
Accordingly, in fiscal year 2005, we had 3,466 new cases filed and
decided 1,905 cases plus an additional 877 EAJA applications. In the
final quarter of calendar year (CY) 2005 (which corresponds to the
first quarter of fiscal year 2006), 907 new cases were filed; 573 cases
were decided; 224 EAJA applications were resolved. During the first
quarter of CY 2006, the upward trend in new cases continued. The first
quarter total for CY 2006 (adjusted from figures provided on March 31,
2006) was 1,009 new cases filed (400 received in March alone), 710
cases decided, and 257 EAJA applications acted upon. This increase in
appeals has persisted through the quarter just completed on June 30,
2006. A total of 935 new cases were filed in April through June 2006,
and 768 cases were decided. A total of 2,552 cases were filed in the
first three quarters of fiscal year 2006. During that period, 2,051
cases were decided and an additional 1,026 EAJA applications were acted
upon. The Court is on pace to dispose of more than 2,700 cases this
fiscal year--more cases decided than in all but one of the last 10
years.
I cannot fully explain the increase in new cases, but I attribute
it to three factors: First, the Board of Veterans' Appeals is deciding
more cases and among those are final decisions denying total or partial
benefits. These decisions may be appealed to the Court. It must be
noted that at the end of fiscal year 2005, the Board issued over 13,000
total denials. Second, there is an increased awareness among veterans
and their families of the existence of veterans appellate rights
established by Congress. Third, there is a growing perception among
veterans of the value of judicial review. There may be other variables
at work, such as the trampoline effect of cases involving
interpretations of the Veterans Claims Assistance Act, and increased
emphasis on claims processing at VA. I expect this upward trend in new
cases to continue. Indeed, a recent feasibility study prepared by the
General Services Administration and two consultant companies concerning
a potential Veterans Courthouse and Justice Center, estimated that an
incoming caseload of 3,600 or more cases per year would ultimately
require nine full-time judges and additional staff and the work space
to accommodate these personnel. The growth in the number of judges and
staff projected by the study assumes the standard of 430 average new
cases per judge per year set by the Judicial Conference of the United
States. The study also assumes that, for caseload projections beyond
3,600 per year, the Court would top out at nine judges, and small
spikes or additional caseload growth could be managed by recalled
judges.
More importantly, as to output of completed cases by the Court as
presently constituted, by January 2005, for the first time in 6 years
the Court was fully staffed to decide cases on appeal. The significant
variable, however, was that--between January and August 2005--four
judges had very little experience and did not acquire their full
complement of staff until October 2005. Since then, their experience
level has increased significantly and there has been a concomitant
increase in the number of cases decided. The following comparison
reflects these factors (also shown by Graph A, included with this
testimony):
------------------------------------------------------------------------
New cases Cases
CY quarter filed decided
------------------------------------------------------------------------
1st Quarter CY 2005........................... 793 442
2nd Quarter CY 2005........................... 1,011 556
3rd Quarter CY 2005........................... 981 539
4th Quarter CY 2005........................... 907 573
1st Quarter CY 2006........................... 1,009 710
2nd Quarter CY 2006........................... 935 768
------------------------------------------------------------------------
The Court's current docket, as of June 30, 2006 (figures adjusted
July 6, 2006), contains 5,850 cases. See attached Graph B which shows
the status of these cases. As depicted in Graph B, 3,598 cases are
awaiting designation of the record on appeal and/or filing of appellate
briefs by the appellant or counsel for the Secretary of Veterans
Affairs, who is the appellee of record. Thus, these cases are not yet
ready for screening or judicial review. There are 436 cases that have
been decided but now are being appealed at the U.S. Court of Appeals
for the Federal Circuit. These cases must be included in our statistics
even though on appeal to another Court. Additionally, 106 cases that
have been decided are pending entry of judgment, the period of time
during which an appellant may seek reconsideration. Upon judgment, an
appellant may then appeal to the Federal Circuit. Similarly, 308 cases
have been decided but now await mandate, that is, the time the decision
is considered final unless appealed. In this regard, Graph B also
identifies 153 applications for attorney fees under the Equal Access to
Justice Act that are awaiting a decision. These applications may only
be filed after mandate. The Court's Central Legal Staff is currently
screening and/or engaging in alternative dispute resolution in 326
cases. This leaves 923 cases in chambers for judicial review and
decision. Thus, 1,249 or about 20 percent of the total cases are
available for screening, review, and decision. The Court has not
defined ``backlog,'' but rather has looked to currency of caseload.
However, as offered by a previous Chief Judge during budget testimony,
a reasonable benchmark is, generally, to view as ``backlog'' any case
that has been in chambers more than 6 months. As of the end of June
2006, 354 cases (about 6 percent of the total docket) fell into that
category. We continue to strive to decide those cases as quickly as
allowed by the circumstances.
We are reviewing and evaluating innovative ways to be as productive
as we can be to reduce our pending caseload and to achieve currency--
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. Here are some of the actions that I have implemented
or am considering to meet the challenges presented by the upsurge in
appeals to this Court:
First, I carefully track the productivity of all segments of the
Court, including each judge and staff function. We are properly
motivated and dedicated to rendering thorough and timely decisions.
Second, our retired judges are recall eligible under 38 U.S.C.
Sec. 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 limited
availability can be most useful. But, there are space and staffing
issues accompanying any recall decision that must be addressed. The
Court is budgeted to support one recalled judge with a clerk,
secretary, and office; a bare-bones situation. To recall at least two
judges at one time requires staffing them with three clerks and one
secretary each, and to provide any required office space and security,
at a cost of approximately $1.1 million. I am consulting with 5 of the
6 retired judges concerning recall options and their availability
within the next 6 months. We are also looking for ways in which their
service might practically and productively be used with the least
disruption to the Court and existing operations and procedures, and
with most efficiency and efficacy to the appellate system and to
veterans.
Third, we are looking at the possible use of judges--either active
or recalled judges--in settlement conferences.
Fourth, we understand that the Court's Rules Advisory Committee is
deliberating whether, in cases where the appellant is represented, to
recommend use of a joint appendix as the record on appeal. A joint
appendix is an encapsulated record on appeal that is limited to the
documents from the designated record that principally are relied upon
by both parties. This joint appendix could expedite review at the Court
by focusing consideration on relevant documents. 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 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.
Fifth, 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 the hallmarks of this
Court's policy concerning the resolution of veterans' cases has been to
provide to a veteran an explanation of the reasons for the Court's
action. 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 possibly be explained by the appellant's 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.
Sixth, we are working on implementing a case management/electronic
case files system (e-filing). The Court is partnering with the
Administrative Office of the United States Courts to purchase and use
the software and e-filing system already developed for the Article III
courts. Indeed, ten of the thirteen courts of appeals now have that
capability. Our goal of having e-filing implemented within the next 2
years now appears realistic. Such a system holds promise of providing a
means to reducing 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.
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 the seven
attorneys in that office 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 toward 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. The
current lease of the commercial building expires in October 2010, so
there is some urgency to this effort, since every feasible option for
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 Court.
Simply stated, we are looking for innovative ways 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. All may rest assured that no week at
the Court goes by without a dialogue amongst the judges and staff on
how to decide these cases in a timely manner and consistent with the
knowledge that our veterans deserve the very best.
On behalf of the judges and staff of the Court, we appreciate very
much your past support and continued assistance.
[GRAPHIC] [TIFF OMITTED] T9716.044
[GRAPHIC] [TIFF OMITTED] T9716.045
Response to Written Questions Submitted by Hon. Larry E. Craig to
Hon. William P. Greene, Jr.
Question 1. It is my understanding that many cases are terminated
by the Clerk of the Court either because of procedural reasons or
because the parties come to an agreement about the proper outcome. Do
you track the percentage of cases that are ultimately decided by the
judges, as opposed to the Clerk of the Court? If not, is it difficult
to determine where delays may be occurring within the U.S. Court of
Appeals for Veterans Claims (CAVC) or where the CAVC may need
additional staffing?
Answer. The Court is able to track which cases have been decided by
the Clerk of the Court, and which by the judges. However, under the
Court's current case tracking system, this process is not automated.
Rather, it requires review of each category of cases and some manual
counting of cases that bear the notation that they were decided by the
Clerk. The automated system that the Court currently employs was
designed to be a cost-effective tool for internal case management by
the Chief Judge, and it does not produce automated reports on all
variables affecting case completion.
Even without automatic tracking of the percentage of cases decided
by judges, as opposed to the Clerk of the Court, the Court is able to
determine the most significant area where delays may be occurring. The
case management system does track requests for extensions of time by
the parties in connection with the steps required for case development,
and these extensions appear collectively to be the most significant
area of delay. In May and June 2006, for example, appellants or their
attorneys filed 675 motions for extension of time; attorneys
representing the Secretary filed 1,684 similar motions in the same time
period. The parties must demonstrate good cause for these requests for
extension, and then they are granted. Notwithstanding delays requested
by the parties, and the time consumed by appropriate deliberation on
each case, the median time for processing an appeal in this Court is
less than the median time for the Federal courts of appeals included in
the annual report of the Administrative Office of United States Courts
providing Federal Courts Management Statistics for the Article III
courts.
The Court's caseload is reviewed constantly to determine if there
is a need to adjust assignments or improve performance in any
functioning unit within the Court.
Question 2. The U.S. Court of Appeals for the Armed Forces annually
submits to Congress a report including specific information regarding
that Court's workload. For example, that report included charts and
graphs setting forth the number and type of cases received during the
year; the number, type and stage of cases pending at the end of the
year; the number and type of decisions issued during the year; the
number of days that elapsed from oral arguments to final decisions; and
the number of days from filing of petitions to final decisions. Does
the CAVC have the capability of tracking and reporting that type of
information?
Answer. No, the Court's automated case-tracking system is designed
to provide statistics modeled after the statistical report issued each
year by the Administrative Office of the United States Courts. Our
annual reports include data on cases filed, the number of cases
decided, the type of disposition (procedural or merits), the number of
Equal Access to Justice Act (EAJA) applications for attorneys fees
received and acted upon (also the nature of the resolution), the number
of oral arguments, the number of appeals to the U.S. Court of Appeals
for the Federal Circuit, and the average number of days for case
disposition. (The Court is considering changing that last computation
to that for the median number of days because that is the statistic
measured by the Administrative Office of the United States Courts for
the Article III courts of appeals, while the average number of days for
case disposition is not measured.)
Two of the categories identified in the report of the U.S. Court of
Appeals for the Armed Forces (USCAAF) are not statistically significant
for the USCAVC. First, in fiscal year 2005, the number of cases in
which the USCAVC held oral argument (24) was relatively small, compared
to the total number of cases decided (1,905). While the number of oral
arguments conducted by this Court has increased, the ratio of argued
cases to total cases decided remains small. Accordingly, a calculation
of the number of days from argument to decision is not a measurement
that would have much statistical relevance, and it is not tracked.
Similarly, the number of petitions decided in fiscal year 2005 (144)
represents only 8 percent of the 1,905 cases decided; thus the number
of days to decision on a petition has not been tracked separately as a
statistically relevant figure.
Second, petitions filed with the USCAAF are typically petitions for
review of decisions of the lower Courts of Criminal Appeals. The USCAAF
may accept or deny those petitions for review. The USCAVC accepts for
review all petitions and in half of these petitions directs the
Secretary to answer the petition. The answer to a petition triggers a
full merits review in this Court. In fiscal year 2005, the USCAAF
received fewer than 1,000 new cases, including 779 requests for review.
That Court issued 64 signed opinions. The USCAVC received nearly 3,500
new appeals and petitions, and this Court issued 1,281 merits
decisions, including 271 affirmances, 257 reversals and remands, and 71
decisions denying extraordinary relief, all of which were signed
decisions.
Question 3. Although I recognize that the CAVC's productivity has
been improving in recent months--and appreciate your efforts in that
regard--the CAVC expects to receive 900 more cases this year than it
expects to decide. In your testimony, you mentioned a number of
possible measures that could be taken to help deal with this situation
by increasing case output. Do you expect to implement any of those
measures in the next 6 months or the next year?
Answer. Yes, I do expect to implement some of the measures
mentioned in my testimony. They are the same measures I outlined in
discussions with you and your staff, as well as with the attendees at
the Court's Judicial Conference held in April 2006. Please see my
response to Question 5 for a discussion of one of the measures,
recalling retired judges. In addition, our active judges, sitting as
the ``Board of Judges''--the body that sets policy for the Court's
operations--soon will be considering the formal proposal from our Rules
Advisory Committee that would allow the filing of a joint appendix. The
Court continues to study the advisability of summary dispositions under
certain circumstances.
Question 4. In the CAVC's annual report, the CAVC includes the
average time ``from filing to disposition'' of cases decided during the
fiscal year. That performance measure appears to include the time
required to dispose of both petitions and appeals. It also appears to
include dispositions rendered by a single judge, as well as those
rendered by a panel of judges.
Question 4a. Would this be a more useful and accurate measure of
performance if petitions and appeals were tracked separately?
Answer. Because the total number of petitions filed per year has
been holding fairly steady at less than 8 percent of the Court's total
caseload, tracking those cases separately does not appear to be a
useful case management tool at this time. Also, over the next 2 years,
the Court will be in the process of changing its case management system
to the CM/ECF system developed by the Administrative Office of the
United States Courts. It would appear to be unwise to create new
automated tracking and reporting requirements for the case management
system that is being phased out. We do not know at this time what the
total capabilities of the new system will be when it is fully
implemented.
Question 4b. Would it be a more fair and useful performance measure
if the time to decide single-judge decisions was tracked separately
from the time to decide more complex panel dispositions?
Answer. Currently, restructuring the Court's case tracking system
to separate single-judge decisions from more complex panel dispositions
is not the best use of staffing and technical assets as we begin the
transition to the CM/ECF case management system.
Question 4c. Does the CAVC track the average time from filing of
Equal Access to Justice Act applications to disposition?
Answer. No, the average time from filing of Equal Access to Justice
Act applications to disposition is not presently tracked.
Question 5. In your testimony, you indicated that you were
consulting with several retired judges regarding their availability
within the next 6 months and that you were assessing how the CAVC could
most effectively use recalled judges. Would you please provide the
Committee with an update on the status of those efforts?
Answer. Two recalled judges will begin service in September 2006.
Two other recalled judges will be scheduled to begin service on or
after January 2007. Modifications to existing space have been made to
accommodate these judges and support staff. I will be submitting to
Congress a request for a supplemental appropriation for fiscal year
2007 to fully staff chambers for two recalled judges. I will continue
to analyze the situation to determine the best uses, availability, and
staff needs for these judges so that they are used efficiently. The
experience gained from this initial use of recalled judges will provide
a basis for these judgments.
Response to Written Questions Submitted by Hon. Daniel K. Akaka to
Hon. William P. Greene, Jr.
Question 1. In your March 2006 testimony before the House Military
Quality of Life and Veterans Affairs Appropriations Subcommittee, you
stated that you were confident that the Court could continue to reduce
the backlog and adjudicate new cases quickly. Given the increase in
cases coming before the Court, and resource limitations for recalled
judges that you mentioned in your testimony, can you make that same
assertion now?
Answer. My assertion in March 2006, was based upon the success the
``new'' Court had achieved in conducting appellate review and deciding
cases since August 2005. The four newest judges and their staffs had
gained experience and the numbers of cases decided were increasing. The
400 new cases received after my testimony in March 2006, and the 300-
plus new cases per month we have received since then appears to have
become the norm rather than a temporary spike. The potential use of
summary dispositions, a recall of retired judges, and employing an
accompanying staff for the recalled judges should assist in meeting the
demands of this heavy caseload. I remain optimistic that we will
continue to resolve a large number of cases, keeping in mind that while
we must administer justice, every veteran adversely affected by a Board
of Veterans' Appeals decision, by right, may appeal to the Court.
Indeed, as was raised during my testimony before the appropriations
subcommittee, if appeals continue at the current level, there will be a
need to authorize the appointment of two additional active judges to
ensure that we provide to veterans timely and quality decisions.
Question 2. Judge Greene, you noted today that you will not have an
idea of how many judges might not want to be recalled until you send
them their recall letter. Retired Tax Court judges must reaffirm
annually their availability to be recalled. Do you see a benefit in
retired U.S. Court of Appeals for Veterans Claims (CAVC) judges doing
the same?
Answer. I do not see a benefit in requiring retired CAVC judges to
reaffirm annually their availability to be recalled. Under 38 United
States Code section 7257(a)(1), a judge of the Court upon retirement,
must provide to the Chief Judge written notice that he or she is
available for further service and is willing to be recalled. Although
this notice is irrevocable, if a recall-eligible retired judge is
recalled but declines to perform the service to which recalled, the
Chief Judge shall remove that retired judge from recall-eligible judge
status. Thus, there is every reason to believe, or to presume, that if
recalled, the CAVC recall-eligible judges will serve. Before recalling
them I must be able to accommodate them logistically and to staff them
appropriately. Because there are only six judges in this recall-
eligible status, it is relatively easy to consult with them concerning
their availability.
Question 3. How should court efficiency be measured?
Answer. The role of an appellate court is to provide review of
decisions of lower tribunals, and as the final arbiter of disputes, to
shape and define the law. There are many areas involved with measuring
a court's efficiency. Is the court protecting the rule of law? Does the
court develop, clarify, and unify the law? Does the court provide
review sufficient to correct prejudicial errors? Does the court give
each case adequate consideration and are the decisions based on legally
relevant factors, thereby affording every litigant the full benefit of
the judicial process? Are the cases managed effectively and resources
used efficiently and productively? These standards are part of the
Appellate Court Performance Standards promulgated by the National
Center for State Courts and are helpful to appellate courts in
assessing performance. The CAVC is guided by these performance
standards, and in conducting its business, also adheres to the policies
of the Administrative Office of U.S. Courts.
Considering the numbers of cases decided as one factor in the
overall measurement, I point out that at the end of the third quarter
of fiscal year 2006, the Court had decided 2051 cases. During that same
period, the Court received 2552 cases. That results in a clearance rate
of almost 80 percent. If this trend continues in the last quarter, we
will have decided more than 2700 cases, more cases decided than in all
but one of the last 10 years.
Further, each fiscal year, the Administrative Office of the U.S.
Courts publishes a judicial caseload profile of the U.S. Courts of
Appeals. That profile provides specific information concerning
appellate caseloads in individual U.S. Courts of Appeals as well as
national totals. The reported national median time in fiscal year 2005
(the most current statistics available) from the filing of a notice of
appeal to the disposition of a case was 11.8 months. The profile does
not include CAVC statistics. Our median time for processing cases
(number of days from the filing of the notice of appeal to disposition)
for the first three quarters of fiscal year 2006 was 334 days, or 11.1
months.
In short, appellate court efficiency is not measured solely by
numbers of cases received against numbers of cases decided. It is
measured by a combination of all of the above factors, to ensure the
effective and efficient administration of justice.
______
Response to Written Questions Submitted by Hon. John Thune to
Hon. William P. Greene, Jr.
Question. Judge Greene, could you provide feedback to me on the
issue of putting the appellate process of the Court of Appeal for
Veterans Claims in line with the appellate process of the Court of
Appeals for the Armed Forces? What are your thoughts on this idea?
Answer. Thank you for your question and for your interest in
veterans law and in our Court. You have asked for my input on the issue
of bringing the appellate process of the United States Court of Appeals
for Veterans Claims (USCAVC) in line with that of the Court of Appeals
for the Military (CAM), otherwise known as the United States Court of
Appeals for the Armed Forces (USCAAF). Your statement prefacing the
question identifies your specific concern on whether review of USCAVC
decisions by the United States Court of Appeals for the Federal Circuit
(Federal Circuit) should be eliminated and that, like decisions of the
USCAAF, appeals of our decisions should go directly to the Supreme
Court of the United States (Supreme Court) by writ of certiorari.
I. INTRODUCTION
My initial comment regarding the value of any layer of appellate
review must begin with the wisdom of Supreme Court Justice Robert H.
Jackson, who observed:
Whenever decisions of one court are reviewed by another, a
percentage of them are reversed. That reflects a difference in
outlook normally found between personnel comprising different
courts. However, 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.
Brown v. Allen, 344 U.S., 443, 540 (1953) (Jackson, J., concurring.).
Accepting that no amount of review can produce results that are
infallible, the question becomes: ``Does an additional layer of
appellate review add benefits that outweigh the associated costs? '' I
will use this inquiry to frame my response to your question.
II. THE POTENTIAL BENEFITS OF ADDITIONAL APPELLATE REVIEW
The specific question you have asked requires an examination,
first, of whether Federal Circuit review benefits veterans law in a way
that USCAVC review does not. Here are my observations:
(1) Independence: A primary reason for appellate review is to have
agency decisions reviewed by a body that is independent of the original
decisionmaker. Like the Federal Circuit, the USCAVC is wholly
independent of the Department of Veterans Affairs. Structurally,
therefore, review by the Federal Circuit is not needed to introduce an
independent body.
(2) Uniformity: A unified appellate tribunal brings clarity and
uniformity to an area of law. Uniformity was one of the goals of the
creation of the USCAVC, an option selected over the alternative of
placing judicial review of VA benefits decisions in the Federal
district courts. Within VA, Veterans Law Judges who staff the Board of
Veterans' Appeals (Board) are not bound by one another's decisions, and
different panels of the Board can reach inconsistent decisions on
claims by similarly situated benefits claimants. However, panel
opinions issued by the USCAVC are precedential and provide binding law
on future cases before the Court and upon claims ajudication within VA.
Before being issued, every decision of the USCAVC--either by a
panel or a single judge--is circulated to the full court for at least 1
week for comment and input. Comments on circulating decisions are
relatively frequent and serve to clarify bases of decisions. In
addition to the comment process, the judges of the USCAVC share an
internal data base of issues that are presently being considered by
three judge panels. This allows each judge to quickly identify pending
cases where precedential arguments have already been scheduled, thus
promoting efficient case management and consistent, uniform action on
such issues. The USCAVC is not permitted to communicate with the
Federal Circuit in this manner. Thus, the decisions of the two courts--
particularly written during overlapping time-frames and addressing
similar issues--may contain language that creates uncertainty when
compared to each other.
(3) Experience: When the USCAVC began operations in 1989, it faced
many issues concerning its role as a new Federal court. The Federal
Circuit was established in 1982, and that court's early case law
addressing its own creation and role was highly relevant in the
formative years of the USCAVC. Both courts had to establish their roles
in close proximity to each other. However, the USCAVC has now been
operating for nearly 17 years; it has decided over 25,000 cases and has
written 19 volumes of precedential case law (found in the West Reporter
Series, Veterans Appeals Reports) to shape its future decisions.
(4) Expertise: Once appointed, a judge on the USCAVC reviews only
veterans benefits cases. In contrast, the Federal Circuit's
jurisdiction is varied and includes review of diverse types of appeals
other than veterans law, including patent and trademark claims,
government contracts disputes, international trade appeals, and Federal
employment actions. From May 1, 2005, to April 30, 2006, only 15
percent (247 of 1,636) of the new cases filed at the Federal Circuit
were appeals of USCAVC decisions. Also, because the Federal Circuit's
jurisdiction to review USCAVC decisions is limited to reviewing
questions of law, see 38 U.S.C. Sec. 7292, that court is not called
upon to apply its rulings to the evidence in specific cases. The bottom
line is that the USCAVC is a court of special jurisdiction that
Congress created to have expertise in veterans law, while the Federal
Circuit by its structure and nature is not.
The issue of focused expertise also applies to the practitioners
before the two courts. The appellants' bar is strong and is maturing in
expertise before both courts. Before the USCAVC, VA represents itself
with its own appellate attorneys who are specialized with years of
departmental expertise in veterans law. Before the Federal Circuit,
however, VA is represented by the Commercial Litigation Branch, Civil
Division, U. S. Department of Justice, whose attorneys are generalists.
(5) Appearance: Beyond objective structural criteria, an appellate
body can have a special relationship with an area of law. As the
USCAVC's jurisdiction is solely veterans law, the Court's relationship
to that jurisprudence is clear.
It is worth noting that, during the Federal Circuit's May 2006
Judicial Conference, the panelists discussing ``The Most Important
Issues Facing the Federal Circuit in the Next Ten Years'' mentioned
veterans law only once in an hour-long analysis. That reference was a
remark by panelist former Solicitor General Seth Waxman that he had
never handled a veterans law case before becoming Solicitor General. No
other panelist (District Judge Kent Jordan, Deputy Solicitor General
Thomas Hunger, and Professors Christopher Yukins and Kimberly Moore)
mentioned the veterans law component of the Federal Circuit's
jurisdiction.
III. THE COSTS OF ADDITIONAL APPELLATE REVIEW
(1) Time: Federal Circuit review lengthens the processing time for
veterans' cases. A case appealed to the Federal Circuit may take 1 or 2
years for development and resolution. Moreover, if the Federal Circuit
overrules or reverses a ruling of law by the USCAVC, it usually remands
the matter back to the USCAVC for further proceedings, adding yet more
months to the process. Often, another remand to the Board is required
for a new adjudication. This process can occur more than once in the
same case.
One particular type of delay should also be noted. Often a lead
case at the USCAVC will decide an issue common to numerous cases. While
the lead case is on appeal to the Federal Circuit, the USCAVC will
apply the law of that case to similar pending cases. If the Federal
Circuit disagrees with the USCAVC ruling of law in such a case, the net
result is mass remands, or the USCAVC stays all related matters pending
decision on the lead case by the Federal Circuit. Appeals to the
Federal Circuit have also resulted in stays at the VA and Board levels,
imposed by the Secretary and Board Chairman. See Brown v. Gardner, 513
U.S. 115 (1994); Smith v. Nicholson, 19 Vet. App. 63 (2005).
(2) Effect on Settlement Negotiations: Finally, I believe that
because jurisdiction exists in another Federal appeals court, parties
have less incentive to negotiate settlement in the USCAVC; a losing
party can once again argue its case in the Federal Circuit.
IV. COMPARISON OF THE USCAVC TO USCAAF
You have asked me to compare the USCAVC to the USCAAF. First, both
the USCAVC and the USCAAF are courts of special jurisdiction, created
under Article I of the U.S. Constitution. Both have expertise in the
area of law they review. Next, the USCAAF provides review of criminal
cases within the military, sometimes involving loss of liberty or life
by a convicted service member; the USCAVC reviews civil actions,
appeals of denials of claims by veterans for benefits of monetary
value.
The following is a comparison of action and review within the
military justice system and the veterans justice system:
------------------------------------------------------------------------
ACTIONS/REVIEW USCAAF USCAVC
------------------------------------------------------------------------
(1) Initial Action.............. Court Martial (10 VA regional office
U.S.C. Sec. 836). adjudication (38
U.S.C. Chapter
51).
(2) Below Court Level Review.... Review by military Review by Board of
Court of Criminal Veterans' Appeals
Appeals on record of
established by regional office
Judge Advocate proceeding and
General of each ``all evidence
Service branch and material of
(10 U.S.C. Sec. record'' (38
866); limited to U.S.C. Sec.
review on record 7104).
at Court Martial.
(3) Article I--Specialized Court Appeal or petition Appeal or petition
Review. to USCAAF (10 to USCAVC (38
U.S.C. Sec. 837); U.S.C. Sec.
review on record-- 7252); review on
no new evidence. record--no new
evidence.
(4) Article III--Court of None.............. Appeal to Federal
Appeals Review. Circuit (38
U.S.C. Sec.
7292); limited to
review of matters
of law--no review
of factual
determination or
challenge to law
or regulation
applied to facts
of particular
case.
(5) U.S. Supreme Court Review... Upon petition for Upon petition for
writ of writ of
certiorari from certiorari, from
USCAAF (28 U.S.C. decision of
Sec. 1259). Federal Circuit
(38 U.S.C. Sec.
7291).
------------------------------------------------------------------------
When USCAAF was founded in 1951, its decisions were not originally
appealable directly to the Supreme Court by writ of certiorari. Rather,
an appellant was required to seek a writ of habeas corpus at the
district court level raising a constitutional issue, which resulted in
review as of right by a Federal court of appeals before there was
potential for review by the Supreme Court. However, in 1983, Congress
changed the USCAAF statute to provide for direct review of USCAAF
decisions by the Supreme Court, Pub. L. No. 98-209 (1983); see 28
U.S.C. Sec. 1259. Writing to Congress in support of the legislation,
then-Secretary of Defense Caspar Weinberger wrote that the legislation
would ``improve the efficiency and effectiveness of the military
justice system by eliminating redundant procedures.'' (Letter of Hon.
Caspar Weinberger to Hon, Melvin Price, Sept, 15, 1983). The
legislation was enacted in a manner limiting the number of cases
subject to direct Supreme Court review. The Supreme Court was given
``complete discretion to refuse to grant petitions for writs of
certiorari'' and ``[c]ontrol over government petitions [would] be
exercised by the Solicitor General.'' H. Rep. No. 98-549, at 17 (1983).
V. CONCLUSION
Whether the role of the Federal Circuit in this area of law is
appropriate is a question for Congress to decide. Whether Federal
Circuit review has a ``good,'' ``bad,'' or ``neutral,'' influence on
the substance of veterans law is a policy question upon which I cannot
comment. Rather, this response reflects my view of the factors that
should be considered by Congress in evaluating the structural
usefulness of Federal Circuit review of USCAVC decisions.
RETIRED JUDGES' STATEMENT
Independent judicial review by the United States Court of Appeals
for Veterans Claims (USCAVC) has been a real success by requiring that
Department of Veterans Affairs decisionmaking be based on the real
evidence and legal analysis often previously missing from such
decisionmaking. Judicial review has done much to bring about accurate
Board of Veterans' Appeals (Board) decisions and has helped ensure
fairness to our nation's veterans.
That said, judicial review has contributed to the intertwined
problems of delay and backlog in finalizing decisions. Under existing
law, there are four levels of possible appeal--one administrative
appeal to the Board and THREE levels of possible judicial appeal to
USCAVC, the United States Court of Appeals for the Federal Circuit
(Federal Circuit), and the Supreme Court of the United States (Supreme
Court). Stated simply, this is more justice than the system can bear.
Indeed, justice delayed is justice denied and the problems of judicial
delay and backlog cannot be fixed without reforming the present
judicial process.
The review of the decisions of one intermediate Federal court of
appeals by another intermediate Federal court of appeals is singularly
unique in the Federal court system. We are not aware of any comparable
situation. It should be noted that the judges of both courts are
subject to similar selection, nomination, and confirmation procedures.
However, the primary focus and expertise of the Federal Circuit has
been and will remain intellectual property matters. On the other hand,
USCAVC has far greater expertise in veterans law because the court's
sole business is the interpretation of the statutes and regulations
applicable to veterans' claims. The wholly redundant review of USCAVC
decisions by the Federal Circuit serves no real purpose, other than
providing another bite at the apple. That is, the party who has lost at
the USCAVC will have a third opportunity to attempt to demonstrate the
rightness of that party's view. This superfluous review draws out the
appellate process and adds to the caseload of both courts. An appeal to
the Federal Circuit often carries with it a year or more of the
claimant's life and in the event of a Federal Circuit remand back to
the USCAVC, another year can be added on, to say nothing of the
additional years that will be involved if the USCAVC must in-turn
remand the case back to the Board.
Once a decision is appealed to the Federal Circuit, other cases
involving the same or related issues, sometimes amounting to scores of
cases, may be put on hold at the USCAVC pending disposition by the
Federal Circuit. Moreover, a Federal Circuit remand in one case,
because it is precedent, may require that tens, if not sometimes
hundreds, of cases at the USCAVC be reworked. Because Federal Circuit
rulings are rarely clear-cut as to how they might apply in analogous
cases, significant confusion often results, causing further delay in
the review of cases pending at the USCAVC. It is our considered view,
given our some 70 years of collective full-time experience in veterans
law, that Federal Circuit review creates approximately a 35-40 percent
increase in the workload of the USCAVC.
Furthermore, it is a needless expense to the litigants and the
taxpayers. For example, two groups of appellate lawyers are needed to
represent the government. One group, employed by the Department of
Veterans Affairs, practices only before the USCAVC. The other group,
employed by the Justice Department, largely re-plows the same ground in
appeals to the Federal Circuit. Not only is this grossly wasteful to
the taxpayer, but it has been the experience of those of us who have
served many years as USCAVC judges and are familiar with the briefs
filed in both courts, that the Justice Department attorneys are often
not as knowledgeable as they sometimes should be concerning the
veterans' claims system, thus they fail at times in the important duty
of an appellate lawyer, to provide expert guidance to the Federal
Circuit concerning the sometimes esoteric bypaths of veterans law.
At some point the question must be asked as to whether there is
sufficient value added to the accuracy of decisionmaking to justify the
inherent additional amounts of time and money needed, to say nothing of
the confusion created, for review in both the USCAVC and the Federal
Circuit. Judicial accuracy, unfortunately, is really an art-form,
rather than a science, and like beauty, is in the eye of the beholder.
Invariably, the winning party believes that the decision is accurate
and the losing party takes a contrary view.
Even assuming that the Federal Circuit is always more ``accurate''
than the USCAVC, a review of the Federal Circuit website shows that the
latter reverses the former in approximately 7 percent of the cases it
reviews. It is debatable whether a ``better'' result in about seven of
every 100 cases can justify the additional time, work, confusion, and
cost inherent in two layers of Federal intermediate appellate review.
Again, it is our collective view, that because of the exclusive nature
of its work, the USCAVC, rather than the Federal Circuit, has the best
understanding of the subject matter and awareness of the systemic
impact of its decisions on the veterans' administrative adjudication
system. Accordingly, we conclude that a significant number of reversed
cases should not have been reversed so that the value-added accuracy of
Federal Circuit review is a much lower percentage than that reflected
on the website.
One further point needs to be made about the impact of the present
system on the VA adjudication process. The VA is often caught between a
rock and a hard place. The USCAVC tells it to do one thing, then the
Federal Circuit may or may not tell it to do something else. The net
result is that the VA is never sure whether the Federal Circuit will
back the USCAVC or scold it. And even where the specific case under
consideration is not brought to the attention of the Federal Circuit,
the VA still must contend with prior edicts of the Circuit that may
seem inconsistent with what the USCAVC is not requiring it to do.
Finally, the interposition of another appellate court inevitably
creates the perception that the USCAVC is not quite up to snuff in the
same way Congress regards the United States Court of Appeals for the
Armed Forces (USCAAF), and is perhaps not a ``real'' court at all.
Whatever reasons led to this redundant review and were thought valid 18
years ago when the USCAVC was established, they have certainly been
proven wrong by time in light of the 25,000 cases disposed of by the
USCAVC and the 19 volumes of reported cases. The bottom line is that
this expensive and wholly unnecessary review by the Federal Circuit
makes little sense and certainly does nothing to move cases along.
Those who would defend the status quo have a heavy burden to show in a
concrete way that the additional time and expense produce real benefits
that outweigh the serious defects noted above.
If review of an Article I appellate court by an Article III court
is deemed desirable or necessary, surely the appropriate model is the
USCAAF. The decisions of the USCAAF, a specialized Federal court of
appeals similar to the USCAVC, are directly reviewed by the Supreme
Court by means of a Writ of Certiorari. It is our understanding that
when Congress, after many years without any type of direct Article III
review of military criminal cases, provided for certiorari to the
Supreme Court, it wisely turned down an alternative proposal that would
have interposed another Federal intermediate court of appeals (the 4th
Circuit) between the USCAAF and Supreme Court review.
The USCAAF model is a proven system that is clearly the most
appropriate for the USCAVC.
Submitted by:
Chief Judge Frank Q. Nebeker, Retired
Judge Kenneth B. Kramer, Retired
Judge John J. Farley, III, Retired
Judge Ronald M. Holdaway, Retired
Judge Donald L. Ivers, Retired
Chairman Craig. Judge, thank you very much.
We have been joined by Senator Patty Murray. She is
managing the floor at this moment on the issue before us, so I
am going to turn to her for comments she would like to make
prior to her returning to the floor. Patty, thanks for coming
over today.
STATEMENT OF HON. PATTY MURRAY,
U.S. SENATOR FROM WASHINGTON
Senator Murray. Mr. Chairman, thank you so much for your
accommodation. I really appreciate it. I did just want to come
for a few minutes and just thank the Chairman and the Ranking
Member for having this really critical hearing on this
important issue that is facing our veterans and our families.
I am deeply concerned about this. We have veterans who are
waiting 18 months. We have soldiers coming home from Iraq and
Afghanistan who are waiting in long lines to get their
benefits, and 18 months without an appeal; with an appeal, it
can add 9 months to a year more to that and that just to me is
unacceptable. I think that we, in fact, heard from the VA 4
weeks--a month ago--that they were worried about allowing
veterans access to counsel during the entire appeals process
because it would jam up an already backed-up system.
That, to me, is deeply disconcerting and I want to work
with you, Mr. Chairman and Senator Akaka, to do whatever we can
do to help speed this up and I really do appreciate your having
this hearing and diving into it and trying to find out what the
backups are and how we can help alleviate that. I just wanted
to let you know I am willing to work with you on that as we go
through this.
I do have to manage the floor. My staff is here and I will
be following up with all the testimony. Judge Greene, thank you
so much for being here to share your insights. Thank you.
Chairman Craig. Senator Murray, thank you.
Judge, again, thank you for your presence here this morning
as we look at how we might assist you and the Court in
stabilizing this workload in a way that produces some immediacy
of return or at least a reasonable return to the appeals and
the individuals that are before you.
According to a report that the Ranking Member and I
recently requested from the Congressional Research Service, and
you have already broached this in your final thoughts this
morning, an Article I court routinely recalls retired judges,
but the Veterans' Court has never done so. The report reflects
that the staff at the Veterans' Court explained that no judges
have been recalled because the Court has been able to meet its
caseload needs with its current complement of active judges.
We all know that times have changed. Looking at the charts
behind me, and listening to your comments, they are in sync. I
guess I can use the term in the fiscal sense, ``The court is in
the red.'' For most of the last 8 years, there has been an
unprecedented level of pending cases. Do you believe the court
is meeting the workload needs as we speak?
Judge Greene. If I may preface some of my answers----
Chairman Craig. Surely.
Judge Greene. I have to admit that I wish the Congressional
Research Service had asked me that question. I think I would
have given a little slightly different answer. You have to know
that the recall provision was authorized in 1999-2000 and after
that, we only had one judge that was retired. And then we also
had legislation saying that we were going to be able to have
nine judges temporarily on the Court, so there was a lot of
give and take on waiting for those judges to come forth and sit
with us. That never occurred.
Consequently, we still didn't have a retired, recall force
that was available to do the kind of work for these numbers of
cases until four judges all of a sudden retired at once, or
within a year of each other. The last two of those judges
retired in 2005. So now, I have a recall force, if you will, to
commit to the mission.
Chairman Craig. I understand and I think the Committee
understands those dynamics. I am appreciative of your looking
at and putting into the queue of ideas and decisions you may
make as it relates to recall. I guess my reaction is, if this
situation does not warrant a recall of judges, what would?
Judge Greene. It does perhaps warrant that, and that is why
I am now consulting with the recall judges for their
availability in the next 6 months.
Chairman Craig. Something else that I think the Committee
needs to know, as it relates to recall, is that other Article I
courts, such as the U.S. Court of Federal Claims, routinely
recall judges. It is part of how they deal with their caseload.
One important distinction is that the other courts generally
pay retired judges the active judge salary only if they are
actually performing the work, whereas retired judges from this
court, Court of Appeals for Veterans Claims, receive the same
pay as active judges regardless of whether they perform any
work. Is that a valid statement, Judge?
Judge Greene. Is it a valid statement that they receive----
Chairman Craig. What I just said, that they receive active
pay?
Judge Greene. They do.
Chairman Craig. As a retired judge----
Judge Greene. If they----
Chairman Craig [continuing]. Whereas other courts only if
they are recalled?
Judge Greene. If they indicate that they would be available
for recall.
Chairman Craig. And my reaction as a fiscally responsible
Senator is if we are not getting our bounce for the buck, we
are going to cut the buck a little bit. We have people hired,
in essence, who are by definition retired, but hired to be
active. We are paying them accordingly. I had the privilege of
visiting your chambers and visiting with you, and Norman took
us around. We looked things over. I know you have two chambers.
I know that you utilize them for other purposes at the moment.
At the same time, with the appropriate staffing, you have the
availability, it is my understanding--am I correct--in adding
up to at least two judges in your current facility?
Judge Greene. I would have to refer that to----
Chairman Craig. Norman.
Mr. Herring. Mr. Chairman, we do have one dedicated chamber
for a recalled judge and we have a meeting room, and we would
have to convert that, just like you did during the period of
time while the Hart Building was closed, this room was used for
other purposes. That would be what would happen. We would take
an existing meeting room and convert it to a judge's chambers.
It wouldn't be like most other judges' chambers that they are
used to. But for a recalled judge, it is possible.
Chairman Craig. And I will stop at this point and turn to
my colleagues. I guess my point is this. If space is an
important issue--and I don't disagree with that, you have to
have elbow room--I believe you have the room for at least two
judges. I think we have visited about that. I understand that
in some instances, filing is important, but I also understand
that filing can be done somewhere else.
I understand that your lease is up in 2010. That is a long
way off in relation to this workload and getting it under
control and heading it down. I would have to think that with
the resources we could help make available in relation to
bringing online judges, this appears, at least to me, to be a
responsible decision and forward movement in dealing with this
growing problem. If you don't stem the growth of the backlog,
it continues to grow by all definition and that in itself could
almost become unsurmountable, whether there are seven judges or
nine judges working full-time, or seven judges and recalled
judges.
That is how I am looking at the math at the moment, because
in all fairness, we have added staff at your request
consistently over the last several years as it relates to those
who evaluate your cases and do all of that. Yet, our numbers
are not changing as significantly as I think the Congress had
hoped they would.
With that, let me turn to my colleague, Senator Akaka.
Danny.
Senator Akaka. Thank you very much, Mr. Chairman.
Judge Greene, you did mention that in the year 2010, you
may have a new facility housing the Court. Do you anticipate
proposing that the Court be expanded to nine judges at that
time or prior to that time?
Judge Greene. Well, the study was based on the projections
from the current trend, 3,600 cases. Obviously, sir, I would
certainly support a request to increase the size of the Ccourt
if our case number stayed at that level for the next 5 years.
There is every indication--I would not certainly predict that
it won't. Just last year, the Board decided 13,000 total
denials, and if we have legal representation across the board,
then there is certainly going to be more possibility for
appeals.
So I am monitoring that from now to 2010. At 2010, when we
are bursting at the seams where we are currently located, we at
least should have a new facility, the necessary space to
accommodate the Court as it is configured. If it is at nine
judges at that time, then we are set to go.
Senator Akaka. Judge Greene, can you talk about the
potential benefits and pitfalls of employing summary
disposition at the Court?
Judge Greene. The pitfall is that this Court has prided
itself for 16 years of giving to the veteran an explanation for
the decision, be it a single-judge decision or certainly a
panel decision. As I expressed in my prepared statement, this
summary disposition would be for cases where veterans are
represented, not cases where the veteran doesn't have a lawyer.
But if we had the kind of case that could be simply resolved
based on legal precedent, that may, in fact, enable us to get
rid of the case faster than having to write a decision,
circulate it amongst ourselves, because that is part of our
internal operating procedures for the protection of the
judicial process, and then we would avoid that period of time
and then be able to issue the case right away. But the pitfall
certainly is that we abandon this well-regarded tradition that
we had in providing an explanation to the veteran.
Senator Akaka. I understand that up to this time, we have
not been using retired judges. From your discussions with
retired judges, Judge Greene, of those retired judges who are
eligible for recall, do you have any sense of how many would be
willing to accept recall?
Judge Greene. I am presuming they all are willing, since
they indicated that--they signed up for it.
Senator Akaka. During your tenure as Chief Judge, why have
there been no judges recalled?
Judge Greene. I have not recalled any, simply because in
the 11 months that I have been the Chief Judge, I have been
taking a look at the landscape to see what has to be done. I
guess I have kind of likened it to a military commander who is
fighting a battle and knows the circumstances and depending on
the circumstances of that battle, when to commit the Reserves.
And so that is why I have given the ready alert and consulting
with these judges now to determine their availability in the
next 6 months.
Senator Akaka. Let me ask my final question before my time
is up. Realistically, Judge, how many cases do you believe a
recalled judge could dispose of in 90 days, and how many in 180
days?
Judge Greene. Well, the last part of that, the 180 days is
critical because that is the period where the recalled judge
has to consent to hang around. For the 90-day period--and that
is what my challenge is, to determine what best the judge can
do in the 90-day period. Can the judge serve on a panel of
judges to decide a case that requires oral argument, drafting
of an opinion, circulation of that opinion? If so, perhaps one
or two.
If it is a single-judge decision, then--this is in the 90-
day period--if it is a single-judge decision, depending upon--
well, all the judges are experienced, so that is a big factor.
We have a very wishful goal of a clerk doing two cases per
week. That is based on the experience level of the clerk, too,
of course. But if a clerk can do two cases a week, then for the
90 days, you can do the math on that and you would say that is
potentially the number of cases of single-judge decisions that
a judge could do.
What I am really hoping for, too, is to examine the process
to see if these judges can also be more effective in the
mediation process, where they perhaps work with the parties
before the case even gets to a judge for review, and that is
just going to take time to do, but I have got the time, at
least while I am Chief Judge and these individuals are recall-
eligible.
Senator Akaka. Thank you, Mr. Chairman.
Chairman Craig. Senator Akaka, thank you.
Senator Jeffords, questions of the panel?
Senator Jeffords. Yes, I have.
Judge Greene, while I was going through the briefing
material yesterday, I noted a rather sharp increase in cases
pending before the Court. When these cases reach you, are they
certified by the Board of Veterans' Appeals in the same manner
that the cases are required to be certified at local level
boards before BVA consideration?
Judge Greene. Well, when a notice of appeal comes to us, we
require the VA to provide us with a copy of the Board decision.
Then we have the Board decision that is the basis for the
appeal. As I indicated in my opening statement, the VA is then
required to designate the record for appeal. And that
designation of the record falls in the hands of the General
Counsel of VA, who must designate the documents that were in
the claims file before the Board that would be used as a basis
for the decision in that Board decision.
Once the Secretary designates that record, it is then
served on the appellant, who has an opportunity to counter-
designate the record and add other documents to the record to
ensure that the court will have what will become, as you say,
the certified record, or the record on appeal. And then once
the appellant provides that information, the Secretary then
files the record with the court, and that is the record from
which we eventually make the decision.
Senator Jeffords. Mr. Greene, I remember some discussion
in the past few years about modernizing and updating the
current ratings schedule for deciding veterans' claims. I have
heard complaints about this anticipated antiquated system from
VA raters and the service organizations. What is the status for
an overhaul of the system?
Judge Greene. That is in the area of VA, sir. In fact, the
court has to be very careful about talking about the rating
schedule, in terms of reviewing that.
Senator Jeffords. All right. What is the status of the
overhaul of the system to increase productivity of the court
system?
Judge Greene. The status is, as I have indicated, the
judges have gained significant experience over the past year.
There is not a day that goes by that the judges don't have a
dialogue about how to be more productive, and that is the right
attitude that needs to be in the appellate court system. We
have a challenge, but at the same time, we have to be sure that
whatever case we touch, we do so with the full understanding
that it has to be done with deliberative due process and within
the judicial rules of law and procedure that we are bound to
follow.
Thus, many cases often get bogged down simply because of
technicalities or stays of proceedings and what have you. But
the outlook in my estimation is that the status of the overhaul
of the court, or the new court or the new beginning of the
court, as I like to refer to it, is very positive. I am hoping
that sometime in the future, I will be able to come back and
tell you that we have certainly made a tremendous dent in those
numbers that appear on your charts.
Senator Jeffords. Many claims are repeatedly sent back to
the Veterans' Claims Board from the Court of Appeals due to
incorrect filing. As is apparent from the submitted testimony
of both Judge Greene and the Disabled American Veterans,
roughly half of the claimants who begin the claims process with
no representation retain some form of representation by the end
of the process. Professional attorneys are well prepared to
handle the complexities of the claim process, thereby reducing
mistakes and unnecessary complication. Would attorney
representation chosen at the discretion of the claimant improve
the efficiency of the system?
Judge Greene. There is no doubt that certainly in our
court, that is the case. We have made great strides in reducing
the number of unrepresented veterans that come before the court
and it does make a difference. It is very difficult to deal
with a veteran's case who is not represented.
The natural choice, if an individual is willing to
represent a veteran and the veteran is willing to hire a
lawyer, then the veteran should have that choice. I think it
would make a difference at every adjudication level,
especially, as one of my colleagues, Chief Judge Kramer,
indicated to you in the hearing last year, if there was a
revamping perhaps of the system where you had administrative
law judges below or somewhere at the RO level, then that would
provide the opportunity for lawyers to represent veterans and
go before that hearing officer.
But generally as Chief Judge of court, I would not comment
on that legislation being enacted. It doesn't really impact on
us because a veteran certainly has the right to hire a lawyer
before coming to our court.
Senator Jeffords. Thank you.
Chairman Craig. Jim, thank you.
Now let me turn to Senator Burr.
Richard.
Senator Burr. Thank you, Mr. Chairman.
Judge Greene, welcome. Thank you for your service.
Senator Jeffords asked a question that I need to follow up
on because I had written the same thing. He asked you, of the
retired judges, if recalled, would they come, and you said you
presumed that they would. Now, in your written testimony, let
me quote, ``I am consulting with five of the six retired judges
concerning recall options and their availability within the
next 6 months.'' I assume that you have been in conversation
with them.
Judge Greene. I have.
Senator Burr. Given those conversations, how do I interpret
the response ``presume'' ?
Judge Greene. Presume? We have a regulation that governs
the Chief Judge's exercise of the authority under 38 U.S.C.
7257, which is the recall judge provision. The regulation,
which was not written by me, was promulgated by the Board of
Judges, requires that if I am planning to recall a number of
judges, requires consultation concerning their availability
before issuing the recall order. So it is just as I indicated
before.
Senator Burr. Well, can I assume or can the Committee
assume that in the consultation, you have asked them, would
they come if recalled?
Judge Greene. Maybe I should not have said ``presume,''
because I have every reason to believe that they will.
Senator Burr. Do you have any reason to believe that they
won't?
Judge Greene. Not until I send the letter----
Senator Burr. Have you----
Judge Greene [continuing]. Saying to report on X date.
Senator Burr. Have you been able to distinguish from those
five of the six that you have consulted with whether this
exercise would be a voluntary or an involuntary recall?
Judge Greene. Well, it is mandatory. Once I send the
letter, it is mandatory.
Senator Burr. You may be new in your capacity as Chief
Judge. I think you have got a tremendous amount of experience
and I think you probably had a conversation with them as to
whether you would have to go the voluntary route or the
involuntary route. I think there is a distinction between the
two.
Judge Greene. You mean the voluntary route----
Senator Burr. There is a voluntary route that allows 120
days----
Judge Greene. A 180 days.
Senator Burr [continuing]. Or 180 days, excuse me, and an
involuntary route that obligates them to 90 days, am I correct?
Judge Greene. Yes, sir.
Senator Burr. Do you have an indication from those five
that you consulted with what would be the appropriate option
based upon----
Judge Greene. I don't have a commitment to that. I have an
indication that I said, if you are recalled, then the exercise
of the 180 days will certainly arise.
Senator Burr. When you use the term ``consulted with them
about their availability,'' does their availability dictate as
to whether we are going to recall? Walk me through that, if you
will.
Judge Greene. Well, I do have space problems. In other
words, if I were to recall four judges, then I would have to
have somewhere to put them, and that is why I indicated if I
went beyond the spaces of my current confines, I would have to
lease facilities somewhere else to bring them on board, or do
like in the Navy with the submarines, a hot bed----
Senator Burr. I realize the space limitations. I am just
trying to figure out how the conversations with them about
their availability are important to your decision as to whether
the caseload merits a recall.
Judge Greene. Once the caseload merits a recall, I need
people, whether it is for 30 days, 60 days, or 90 days. If
someone can come 30 days in September, you are on. If somebody
can come 40 days beginning in October, you are on, and so on
and so on and so on. That is to maintain my flexibility.
Senator Burr. Sure. Let me ask you about caseload, and I
apologize that I am not near as knowledgeable as the other
Members of the Committee right now, but I will be by the time
we follow up on this. As we have gone through a period of time
where we have increased the number of clerks per judge, we have
gone from two to now four clerks per judge, and I think the
target of the Committee, the target of the court was that each
clerk would process two claims per week and that is sort of the
formula that we use to try to determine, do we have enough
clerks. I would take for granted that that is in conjunction
with do we have enough judges. Two separate issues, though.
In fact, as we have doubled the number of clerks, we have
actually fallen to one case per week that is completed by our
clerks. I just did some quick math and if we had kept two
clerks per judge and they maintained the two cases per week,
they would have actually completed over 700 cases. When you
look at that for 2005, of the 1,500 cases that came in more
than were decided, we would have knocked that in half if we
just had the same level of productivity.
Put on top of that the fact that we have doubled the number
of clerks. One would assume that if the productivity had stayed
the same, that we would have actually closed more cases than
came in.
My question to you is, why were our assumptions wrong that
we could maintain the two cases decided weekly and do we have a
productivity problem with our clerks?
Judge Greene. Umm----
Senator Burr. Let me give you a third option. Are the cases
that much more complex, that our expectations of two cases per
week decisions is unacceptable?
Judge Greene. Sure. Well, let me take that last option. As
I indicated in my opening statement, over the 17 years, there
has been developed an extensive expertise in the veterans' bar.
Twenty-nine percent of the cases that close are represented, as
opposed to at the beginning of the court, when there was 80
percent pro se. Legal issues have become complex, certainly,
and the two cases per week, that goal that I described was
presumed--I won't use presumed--was on a basis of clerks doing
single-judge decisions. Single-judge decisions are decisions
that are considered to be relatively simple, are following
precedent; not reasonably debatable.
If a clerk has to work a panel case, then that becomes more
complex because there, you are now dealing with preparing to
discuss this case with two other judges, two other clerks,
perhaps have oral argument, and, of course, the decision that
is rendered from that case becomes a precedent that will be
applied to other cases. The single-judge decisions are not
precedential. So that is a variable in the two-per-week goal.
It is not that we are--the current court--I am not sure you
are comparing the current court with the premise of your----
Senator Burr. I am simply using the projections that the
court----
Judge Greene. We went to----
Senator Burr [continuing]. Historical work of the court.
Judge Greene. When we went to three clerks and then to four
clerks, well, more important, when we went to three clerks, we
were down six to five judges, as well. So even given that, I
guess you still could come up with a two decisions per week,
but you have got five deciders now instead of seven deciders.
So all those variables come in.
Senator Burr. Yes, but to suggest that that had something
to do with the clerks' productivity would suggest that if you
were to recall two judges, clerk productivity would go up.
Would that happen?
Judge Greene. I would hope so, and I feel comfortable now.
Now, we are at seven full-time judges for the first time in 6
years deciding cases full-time, every day, with four clerks.
This is the first year of that, and all I can say is that there
is every expectation that we will continue an upward trend in
producing two cases a week, given the variables. We have got,
like 49, if I recall correctly, 49 cases that are pending or
have been referred to panel, and those cases, again, are on the
clerks' inventory and they take precedence and importance over
the single judge decisions.
Senator Burr. I thank you for making yourself available to
us. I thank the Chairman for his willingness to hold the
hearing.
Mr. Chairman, I am anxious to see what Judge Greene is able
to present to us as it relates to the mix of what our
expectations for productivity should be, what our expectations
for the need to recall and what that structure would look like
because I think that has a very significant impact on what we
should do as a Committee relative to allocation of funds. I
pledge to you today and I pledge to Judge Greene that as the
court needs those dollars to perform their work, I will do
everything to make sure that they are there. By the same
standard, I would expect the Chief Judge to make sure that the
productivity level of all facets is, in fact, maintained and
that this does not have a tendency that as it grows in size, as
it grows in budgets, the expectation of this Committee and
veterans is that we produce less product.
Thank you, Mr. Chairman.
Chairman Craig. Senator Burr, thank you. Let me add only
this thought, and then we are going to have to run and vote. We
will be right back, Judge, but it goes right to where Senator
Burr is dealing with at this moment, and Richard, you may want
to hear this.
From fiscal year 1998 to fiscal year 2007, the budget will
more than double, from $8.5 million to $18.5 million.
Compensation and benefits will increase 112 percent. Employees
will increase 23 percent. During that time, the number of law
clerks, attorneys, increase from two per judge, as we
discussed, to three per judge, then in 2003, four per judge. In
addition, the Court authorized each judge to have at least one
permanent law clerk at a higher level, a GS-14, to help deal
with these more complex cases.
So in looking at all aspects of your situation, Judge, I
concur with what Senator Burr has said. I will have a couple of
questions when I return and then we will let you get back to
work.
Judge Greene. Thank you.
Chairman Craig. We don't want you sitting here answering
questions in part when you can be back at the Court solving
claims.
We will recess for just a moment. I will run and vote and
will be right back. The Committee will stand in recess.
[Recess.]
Chairman Craig. The Committee will reconvene, and again,
Judge, thank you for your time. I have one last question and
then we will get you all out of here so you can get back to
work.
Disabled American Veterans and the national organizations
of veterans' advocates have suggested that information about
the Court's internal operations is not sufficiently transparent
to the public. Does the Court disseminate within the Court or
to the public information about how many cases are pending and
how long they have been pending?
Judge Greene. I will refer to my Executive on that.
Mr. Herring. Mr. Chairman, we have upon occasion and
special request provided detailed information regarding
everything that we do at the Court. As you may know, we are a
Federal Court and are not subject to the Freedom of Information
Act and we have consistently taken that position pursuant to
the advice of General Counsel. So if there have been any times
that we failed to do that, it is simply because of our desire
to, I guess, uphold our judicial integrity under those
traditions.
But as you can see today, we have given pretty much full
disclosure concerning the number of cases, where they are, how
long they have been pending, where they are in the decisional
process. I am a little concerned about every time someone asks
for information, that I have to stop my staff from doing what
they are doing and ask them to do a research project. But I
think we are pretty transparent. If there is a special request,
we try to honor it.
Chairman Craig. Beyond the special request, then what you
are telling me is that as a matter of routine on an annual
basis, you don't do a status report that becomes public?
Mr. Herring. Well, the annual report that is found on our
Web site details a significant amount of information concerning
the number of cases that have come in, the cases that have been
cited, how many of them are merits decisions, how many have
been remanded, whether they have been decided based upon
jurisdictional issues, or failure to follow the rules. We try
to keep that to a one-page report because of the complexity and
the relationship of that data to the data that existed 10 years
ago. You have relied upon data that is 10 years old and we
don't want to have to say we are changing the rules midstream
on how we count cases and how we decide cases. We are trying to
be consistent historically, as well. So we are providing the
information that we have historically provided both to the
public and to individuals.
Chairman Craig. Sure.
Mr. Herring. And upon, like I say, upon special request
from Representatives here on the Hill, we do a significant
amount of research. We had a special request for how many cases
were pending on September 30, 2005, which required one of my IT
professionals to spend 4 or 5 hours to research that because
our case tracking system is one that is intended to track the
cases currently, today's numbers, as opposed to 6 months ago or
12 months ago.
Chairman Craig. We have just been joined by Senator Thune.
At this time, do you have any comment or questions you might
like to ask, John?
STATEMENT OF HON. JOHN THUNE,
U.S. SENATOR FROM SOUTH DAKOTA
Senator Thune. Mr. Chairman, I know you are trying to move
things along here and I have got an Armed Services Committee
hearing today, so I need to get back there. I do want to thank
you for taking this issue on. This is a very difficult and
concerning issue, and getting our arms around it and coming up
with solutions to how best to address this backlog, this
buildup in the system, is something that I think we all are
very concerned about. Clearly, we want to be able to deliver
the very best quality service to our veteran community in a
timely way and that is being severely compromised. I welcome
the testimony from our panelists and hope that there will be
some useful and meaningful suggestions about how we can deal
with this issue.
So I thank you for holding the hearing and I appreciate the
chance to be here.
Chairman Craig. Judge, let me thank you and Norm Herring
for your openness and your cooperativeness in this. I hope you
view this as a constructive effort. It is intended to be.
Judge Greene. Absolutely.
Chairman Craig. As I was on the floor to vote, I had
several Senators who were Members of this Committee opine that
they were occupied today, as is John, in other hearings of
value and they wished they could be here. I say that because
that doesn't always happen as we probe through different
issues.
We are very intent and concerned. We believe by the numbers
you have a significant problem. We want to be constructive in
helping you solve that and stabilize these numbers in a way
that produces decisions in a timely fashion for our deserving
veterans. Your openness, your allowing us access to
information, in fact, your presence here this morning before
the non-Judiciary committee, if you will, but before the
Committee on Veterans' Affairs, I think demonstrates that and
we appreciate it. We are intent, as you are. We will work with
you and follow you closely through this to be helpful where we
can be and assist you in resolving this issue. Thank you.
Judge Greene. Mr. Chairman, thank you very much for this
opportunity. I would just like you to know that I stand ready
to continue this dialogue with you or any other Member of the
Committee so that we can mutually ride together this road to
blazing a trail for veterans' justice.
Chairman Craig. Those of the court who also attended, thank
you for your presence here today. Judge Nebeker, nice to see
you again. Thank you.
Now, we will ask our second panel to come forward. Our
second panel is made up of the Honorable James P. Terry,
Chairman of the Board of Veterans' Appeals, Department of
Veterans Affairs. He is accompanied by Randall Campbell,
Assistant General Counsel, Professional Staff Group VII,
Department of Veterans Affairs. We also have Joe--it is that
good Irish name that always gets me--Joe Violante, National
Legislative Director, Disabled American Veterans.
Mr. Terry, thank you for joining us. Please proceed.
STATEMENT OF HON. JAMES P. TERRY, CHAIRMAN, BOARD OF
VETERANS' APPEALS, DEPARTMENT OF VETERANS AFFAIRS
Mr. Terry. Thank you, sir. Good morning, Mr. Chairman,
Senator Thune, members of the staff.
The Veterans' Court caseload, as you have heard earlier
this morning in the first panel, has certainly increased
continually since the court opened in 1989. It has many causes.
First, we at the Board are doing our utmost to increase the
number of final decisions we produce. The Veterans' Court
potential workload is directly dependent, as you are all aware,
on the number of final decisions on the merits issued by the
Board in which a benefit sought remains denied, or if allowed
was not granted to the fullest extent that the claimant is
seeking.
We testified before the Committee in May 2005, that two of
the Board's most important imperatives are: one, to contain and
reduce the backlog while maintaining high quality; and two, to
improve our timeliness by eliminating avoidable remands in
order to issue more final decisions. The Deputy Secretary of
the Department has made the reduction of remands certainly a
major priority.
But our success in increasing final decisions has had the
ancillary effect of increasing the universe of cases that may
be appealed to the court. To illustrate, in fiscal year 2003,
the Board issued 31,397 decisions with a remand rate of 42
percent. In fiscal year 2004, while the number of decisions
increased to 38,000, the remand rate soared to 56 percent, so
there was a fewer number of final decisions.
In fiscal year 2005, during which we began working
concertedly with the Veterans Benefit Administration to avoid
remands to the extent possible, we issued 34,175 decisions with
a 36 percent remand rate, thus increasing again the number of
final decisions. So far in fiscal year 2006, through the end of
May, we have issued 24,133 decisions with a remand rate of 34
percent, again, a reduction from last year. Therefore, we
expect of the 38,000 decisions we expect to issue before the
end of this year that we will have a low remand rate, and
again, an increase in final decisions that will be subject to
appeal to the court.
The result is, of course, that there has been a significant
increase in the number of BVA decisions that may be appealed,
and certainly in looking at the numbers, while the Board issued
4,196 fewer decisions in 2005 than it did in 2004, the actual
number of decisions to which all benefits sought were denied
increased from 9,300 to 13,032, as mentioned by Judge Greene.
It is important to note, though, during this same period of
time, while the number of decisions that we issued increased in
terms of denials, it also increased significantly in terms of
those where benefits were granted.
The trend is likely to continue. As I am sure the Committee
is well aware, the Board is continuing to receive more cases
each year. We received 39,000 cases in 2004, 41,000-plus in
2005, and this year we are expecting 43,000 and more so in
2007.
But other factors also must be considered, Mr. Chairman. In
addition to the heightened awareness among veterans and the
increased number of cases subject to appeal, the higher courts
have determined that the Veterans' Court possesses now
authority to consider petitions for extraordinary relief under
the All Writs Act, and this has led to a significant amount of
work at the Veterans' Court.
Additionally, the Federal circuit has played a significant
role in increasing the number of appeals at the Veterans' Court
by applying the Equitable Tolling Doctrine to otherwise
untimely appeals, therefore allowing those that otherwise might
be denied to be considered.
On perhaps a smaller scale, cases like Bates v. Nicholson,
dealing with an attorney's right to practice, have expanded the
jurisdiction of the Board and, hence, have expanded the
jurisdiction of the court.
Statutory changes, as well, have played an important role.
For example, the Equal Access to Justice Act was amended in
1992 to authorize the Veterans' Court to award fees and
expenses to veterans' attorneys. Thereafter, the caseload at
the Veterans' Court jumped exponentially. Over 20 percent of
the Veterans' Court docket in fiscal year 2005 was comprised of
such fee applications, and that percentage is holding true this
year, as well.
Another instance was the elimination of the date of filing
of the notice of agreement limitation of the court's
jurisdiction, which had originally been enacted in the
Veterans' Judicial Review Act to help control the workload of
the Veterans' Court.
The statutory amendment that adopted the postmark rule for
calculating timeliness has likewise had an impact on the
Veterans' Court docket by expanding the cases that can be
considered.
Enactment of the Veterans' Claims Assistance Act, the VCAA,
has also had an enormous impact on the work of the Veterans'
Court. This is due in part to extensive litigation regarding
the scope and meaning of that legislation, as well as the
reluctance of the Veterans' Court, in our view, ``to take due
account of the rule of prejudicial error'' in making its
determinations, an opportunity it certainly has the right to
avail itself of. If the court were able to employ this rule to
its fullest, it would be able to reduce its workload by
rendering more final decisions rather than remands in
appropriate cases.
In addition, occasional spikes in the number of new cases
over the years can be attributed to organized efforts to
present particular legal issues to the courts, such as, for
example, the recent spate of bilateral tinnitus cases that are
just now being resolved. There have been hundreds of such cases
filed in the Veterans' Court. Such temporary spikes are
difficult to predict and can be difficult to manage for
anybody.
Further, cases have simply grown more complex, sir, with
more numerous issues, larger records, and certainly more issues
to consider. It is not uncommon to have files of several
thousand pages and certainly multiple issues, some cases more
than 10, certainly.
Changes in laws, such as the statutory enactment of the
VCAA or issuance of a new precedent also impact the court
because there might be dozens or even hundreds of cases that
must be rebriefed to the court, thereby delaying the ultimate
decision in those cases. That is very much a reality this year.
The number of cases scheduled for oral argument has also
doubled over recent years and that trend is predicted to
continue.
With respect to potential remedies, and I think here is
where we need to look very carefully, it is notable that the
court is evaluating new means for alleviating or managing the
press of business, and I think Judge Greene touched on some of
these. For example, it has adopted new procedures to reduce the
amount of time expended by the parties' motions for
continuances. It has reinforced its rules governing submission
of pleadings.
The Veterans' Court is also currently considering a
fundamental change to the procedures for preparing the record
on appeal. Therefore, if, in fact, it were to make this change,
only the matters cited in the pleadings to be submitted would
be required as opposed to the DOR, the designation of the
record, today, which includes a listing of all documents within
the file.
The Veterans' Court is also studying the feasibility of
electronic filing. This, of course, would require a rule change
in the court's rules, but we think that would be a very, very
effective new mechanism.
The Veterans' Court could take better advantage of tools
already available to it, in our view. For example, the
Veterans' Court could adopt procedures that welcome rather than
deter summary motions for dismissal in appropriate cases. The
plan to revamp the preparation of the record on appeal, which
is currently under study, would certainly facilitate the filing
of summary motions.
As I noted previously, the court could be expansive in
taking account of the rule of prejudicial error in reviewing
the Board's determinations, avoiding remands where justice will
permit. We believe this is a very, very important consideration
and we believe that the court could do much in this area.
The Veterans' Court could also be more open to the idea of
consolidating cases or granting motions to stay cases when
there is a commonality of issues. In the instance of the
recently decided tinnitus rating cases, for example, the
Veterans' Court did not consolidate the majority of the cases
on its docket, nor did it grant the Secretary's motions to stay
proceedings pending resolution of the lead cases. These changes
would certainly affect cases which have already been filed.
However, we must note, and it is a reality, the sheer number of
potentially appealable decisions from the Board is staggering
and certainly this has to be taken into account, as well.
Mr. Chairman, the problem of backlogs will be a theme that
continues into the future, and unless steps are taken to
meaningfully reduce the actual number of appeals or to employ
an expeditious means to dispose of them, we will continue to
have the problem that we face today.
Mr. Chairman, Mr. Campbell and I would be pleased to answer
any questions you or any other Member of the Committee might
have.
[The prepared statement of Mr. Terry follows.]
Prepared Statement of Hon. James P. Terry, Chairman, Board of Veterans'
Appeals, Department of Veterans Affairs
Good morning, Mr. Chairman. I am happy to discuss with you, Ranking
Member Akaka, the members of the Committee, and your staff, what we
believe are the reasons for the increase in the number of appeals to
the United States Court of Appeals for Veterans Claims (Court or
Veterans Court), whether we can expect that trend to continue, and what
measures may be taken to assist the Veterans Court in handling this
increased workload.
With me today before you is R. Randall Campbell, Assistant General
Counsel, Professional Staff Group VII of the Office of the General
Counsel (Group VII), also known as the Veterans Court Appellate
Litigation Group. That Group is charged with representing the Secretary
of Veterans Affairs before the Court.
While appeals from the final decisions of the Board provide the
primary source of the Veterans Court's workload, its workload includes
a variety of other matters, including petitions for a writ of mandamus,
and applications for fees and expenses under the Equal Access to
Justice Act. Group VII is responsible for handling the administrative
and legal matters involved in all litigation before the Veterans Court.
This is a complex operation, akin to a large law firm employing a staff
of nearly 100 consisting of attorneys and a large complement of
administrative professionals who run the docket room, computerized
case-tracking system, and copy center, among other things. In order to
comply with the Veterans Court's Rules of Practice and Procedure, Group
VII prepares, serves and files copies of the record on appeal in cases
before the Veterans Court, producing an average of more than one
million photocopies per month. Group VII has experienced first hand the
effects on its own resources of the increasing caseload before the
Veterans Court.
It is clear that the Veterans Court's caseload has increased
continually since it opened its doors for business in 1989. Ten years
ago, in Fiscal Year (FY) 1996, for example, the Veterans Court received
1,836 new cases. By contrast, in fiscal year 2005, the Veterans Court
received 4,364 new cases. So far this fiscal year, the Veterans Court
is averaging in excess of 393 new cases per month. The number of cases
pending decision at the beginning of June 2006 was 4,311. I fully
expect the caseload to increase for a number of reasons.
First, we at the Board are doing our utmost to increase the number
of final decisions we produce. As you know, the mission of the Board of
Veterans' Appeals (BVA or Board) is to conduct hearings and render high
quality, timely and final decisions in appeals of claims for veterans
benefits. The vast majority of appeals involve claims for disability
compensation benefits, such as claims for service connection, an
increased rating, or survivor's benefits, which were denied at the VA
Regional Office level.
In order for the Board to reach a fair and just decision in an
appeal, the record must contain all evidence necessary to decide the
appeal and reflect that all necessary due process has been provided. If
the record does not meet these requirements, and the benefits sought
cannot be granted, a remand for further development is necessary. Since
a remand is a preliminary order and not a final decision on the merits,
it generally may not be appealed to the Veterans Court. About three
quarters of all remands are eventually returned to the Board for
further consideration.
It is those decisions in which the Board denies the appeal, in
whole or in part, that the claimant may challenge by filing a Notice of
Appeal with the Court.
Hence, the Veterans Court's potential workload is directly
dependent on the number of final decisions on the merits issued by the
Board in which a benefit sought remains denied or, if allowed, was not
granted to the fullest extent that the claimant is seeking.
As the Board's then Acting Chairman, now Vice Chairman, Ron Garvin,
testified before this Committee on May 26, 2005, two of the Board's
most important initiatives are (1) to contain and reduce the backlog of
appeals by increasing decision productivity, while maintaining high
quality, and (2) to improve timeliness and service to veterans by
eliminating avoidable remands in order to issue more final decisions.
In regard to the latter initiative, in July 2004, Deputy Secretary
Gordon Mansfield specifically directed both the Under Secretary for
Benefits and Board's Chairman to do all within our power to eliminate
avoidable remands. This effort required close cooperation between our
organizations and the Deputy Secretary's office to develop and
implement a comprehensive plan to respond to this directive.
I am happy to report that we have had much success in working
toward both these goals. While this is good news for the veterans we
serve, who benefit from improved service, it has had the ancillary
effect of increasing the universe of cases that may be appealed to the
Court.
To illustrate, in fiscal year 2003, the Board issued 31,397
decisions, with a remand rate of 42.6 percent. In fiscal year 2004,
while the number of decisions issued increased to 38,371, the remand
rate soared to 56.8 percent. In fiscal year 2005, during which we began
working concertedly together with the Veterans Benefits Administration
to avoid remands to the extent possible, we issued 34,175 decisions of
which 38.6 percent were remanded in whole or part. So far in fiscal
year 2006, through the end of May, we have issued 24,133 decisions,
with a remand rate of 34 percent, again a reduction in the remand rate
from last year. We expect to issue about 38,000 decisions by the end of
this Fiscal Year, while maintaining as low a remand rate as
practicable.
The result is that, over the last few years, there has been a
significant increase in the number of BVA decisions that may be
appealed to the Court. For example, although the Board issued 4,196
fewer decisions in fiscal year 2005 than in fiscal year 2004, the
actual number of decisions in which all benefits sought were denied
increased from 9,300 in fiscal year 2004 to 13,032 in fiscal year 2005.
While the number of cases in which a grant of benefits was awarded by
the Board also increased during this time, from 6,560 in fiscal year
2004 to 7,096 in fiscal year 2005, some of these decisions involve a
grant of less than all the benefits sought and therefore may be
appealed to the Court on those issues.
This trend is likely to continue, especially since the Board's
workload continues to grow. The Board received 39,956 cases in fiscal
year 2004, 41,816 cases in fiscal year 2005, and expects to receive
43,000 cases in both fiscal year 2006 and fiscal year 2007.
Other factors that may affect the increase in appeals to the
Veterans Court are not so readily quantifiable. There is a heightened
awareness among veterans of their access to the judicial process. It
appears that veterans have become increasingly knowledgeable about
their right to appeal to the Veterans Court and are increasingly
willing to avail themselves of that right.
In addition, there have been changes in the jurisprudence that have
influenced the caseload. The courts have determined that the Veterans
Court now possesses authority to consider petitions for extraordinary
relief under the All Writs Act, which has led to a significant amount
of work at the Veterans Court. Additionally, the Federal Circuit has
played a significant role in increasing the number of appeals at the
Veterans Court by applying the ``equitable tolling doctrine'' to
untimely appeals. On perhaps a smaller scale, cases like Bates v.
Nicholson, 398 F.3d 1355 (Fed. Cir. 2005) or Meakin v. West, 11
Vet.App. 183 (1998), have expanded the jurisdiction of the Board of
Veterans' Appeals and, hence, created the potential for additional
cases to be appealed to the Veterans Court.
Statutory changes, too, have played an important role. For example,
the Equal Access to Justice Act was amended in 1992, in order to
authorize the Veterans Court to award fees and expenses to veterans'
attorneys. Thereafter, the caseload at the Veterans Court jumped
monumentally. Over 20 percent of the Veterans Court's docket in fiscal
year 2005 was comprised of such fee applications, and that percentage
is holding true this year, as well. Another instance was the
elimination of the date of filing of the ``notice of disagreement''
limitation of the Court's jurisdiction, which had been originally
enacted in the Veterans' Judicial Review Act to help control the
workload of the Veterans Court. The statutory amendment that adopted
the ``postmark rule'' for calculating timeliness of appeals has also
had an impact on the Veterans Court's docket.
Enactment of the Veterans Claims Assistance Act (VCAA) has had an
enormous impact on the work of the Veterans Court. It is no secret that
VCAA remands have been ping-ponging between the Veterans Court and the
Department of Veterans Affairs for nearly 6 years. This is due, in
part, to extensive litigation regarding the scope and meaning of the
legislation, as well as the reluctance by the Veterans Court to ``take
due account of the rule of prejudicial error'' in making its
determinations. 38 U.S.C. Sec. 7261(b)(2). I recognize that this has
been a rather contentious issue and one that is currently the subject
of ongoing litigation. I can offer only that, if the Court were able to
employ this rule to its fullest, it may be able to reduce its workload
by rendering more final decisions, rather than remands, in appropriate
cases. Ultimately, this would better serve our Nation's veterans.
It also should be noted that there have been occasional spikes in
the number of new cases over the years that can be attributed to
organized efforts to present particular legal issues to the courts. For
example, over the last few years the docket of the Veterans Court and
the docket of the Federal Circuit have been crowded with cases
involving the question of dual ratings for so-called ``bilateral''
tinnitus. There have been hundreds of such cases filed in the Veterans
Court. Such temporary spikes are difficult to predict and can be
difficult to manage.
Finally, all of us involved in the adjudication system agree that
cases have grown more complex, with more numerous issues and much
larger records to review and consider. Even a case with just a few
simple issues takes more time to process, when, as is increasingly
common, the record on appeal may constitute thousands and thousands of
pages. When there are changes in law, such as a statutory enactment
like the VCAA or issuance of a new precedent by a court, there might be
dozens or even hundreds of cases that must be re-briefed, thereby
delaying the ultimate decision in those cases. Because of the change in
law, many of the cases will be remanded to VA by the Veterans Court and
then be returned to the Court on appeal, increasing its workload. If a
case is scheduled for oral argument, preparing for oral argument delays
processing of other cases while the subject case receives priority
treatment. The number of cases scheduled for oral argument has doubled
over recent years, and that trend is predicted to continue. All of
these factors can contribute to a backlog on the Veterans Court.
No doubt the Veterans Court is cognizant that its decisions, even
in routine cases, are very important to those veterans who have been
waiting for their ``day in court.'' Moreover, precedents issued by the
Veterans Court can have a profound and wide-ranging impact on the
Department's adjudication system. These factors call for careful
deliberation and consistency, which, in turn, affects the amount of
time spent on each case.
With respect to potential remedies, it is notable that the Veterans
Court is evaluating new means for alleviating or managing the press of
business. For example, several years ago it adopted new procedures to
reduce the amount of time expended by the parties' motions for
continuances. It also reinforced its rules governing submission of
pleadings, in order to deal with a rise in the filing of facially
unsubstantiated writ petitions. We understand that the Veterans Court
is currently considering a fundamental change to the procedures for
preparing the record on appeal, which will speed the submission of
cases to the judges for decision, and that the Veterans Court is also
studying the feasibility of electronic filing.
The Veterans Court could take better advantage of tools already
available to it. For example, the Veterans Court could adopt procedures
that welcome, rather than deter, summary motions in appropriate cases.
We are hopeful that the plan to revamp the preparation of the record on
appeal, which is currently under study, will facilitate the filing of
summary motions. As noted above, the Court could be expansive in taking
account of the rule of prejudicial error in reviewing the Board's
determinations, avoiding remands where justice will permit.
The Veterans Court could also be more open to the idea of
consolidating cases or granting motions to stay cases, when there is a
commonality of issues. In the instance of the tinnitus rating cases,
for example, the Veterans Court did not consolidate the majority of the
cases on its docket, nor did it grant the Secretary's motions to stay
proceedings pending resolution of certain lead cases. Because the cases
were permitted to proceed individually, there was an unnecessary
expenditure of resources in the individual tinnitus cases and an
avoidable diversion of time and resources from other cases on the
docket of the Veterans Court.
These changes would affect cases that have already been filed. As
noted earlier, however, the sheer number of potentially appealable
decisions from the Board of Veterans' Appeals is staggering. The
problem of backlogs will be a theme that continues into the future,
unless steps are taken to meaningfully reduce the actual number of
appeals or to employ an expeditious means to dispose of them.
Mr. Campbell and I would be pleased to answer any questions you or
your colleagues might have.
______
Responses to Written Questions Submitted by Hon. Daniel K. Akaka
to James P. Terry
Question 1. Mr. Terry, I appreciate your views on the court's
workload. However, I believe it is more appropriate to focus VA's input
on how the department, including BVA, can better handle claims to
reduce the number of decisions appealed to the Court. For those cases
which are appealed to the Court, VA's goal should be to ensure that the
cases which go forward are fully ready for the Court's review, with no
need to remand the cases for further development. What can the Board do
to reduce the number of cases remanded from the Court?
Answer. Any claimant adversely affected by a final decision of the
Board of Veterans' Appeals (BVA or Board) has the right to obtain
judicial review of that decision by filing a timely Notice of Appeal
(NOA) with the United States Court of Appeals for Veterans Claims (CAVC
or Court). 38 U.S.C. Sec. Sec. 7266(a), 7252(a). It is the claimant's
decision alone to exercise his or her statutory right to appeal and,
therefore, the Department nor the board has the authority to ``reduce
the number of decisions appealed to the Court.''
We can, however, ``better handle claims'' by improving our efforts
to explain the rationale for our decisions. A better understanding of
the underlying reasons for the Board's decision may persuade some
claimants that the decision is correct and should not be appealed. In
addition, by providing a clearer, more comprehensible explanation of
the bases for our decisions, we also will address one of the leading
causes of remands from the Court. Our data show that from the period of
December 2000, when we began our current Court remand tracking system,
to the end of June 2006, the leading cause of remands (28.4 percent of
all issues remanded from the Court) was based on a determination that
the Board did not provide an adequate discussion of the rationale for
its decision on a material issue of law or fact. To address these
concerns, we are working with our Veterans Law Judges (VLJs) and staff
counsel to ensure that BVA decisions are clear, concise, coherent and
correct. We have recently completed several training initiatives to
this end.
The Board's mission is to issue decisions that are just, fair, and
legally correct, as well as timely. This applies to all decisions, not
just those that may be appealed to the Court. To this end, we have in
place a comprehensive Quality Review (QR) program, which has recently
undergone favorable scrutiny by the Government Accountability Office
(GAO). A ``deficiency free'' decision is one in which all issues are
correctly identified and resolved with appropriate findings of fact,
conclusions of law, and order; that ensures that all due process has
been provided, including appropriate notice and assistance to develop
the claim; and that contains an adequate explanation of the reasons and
bases for all material issues of fact and law. We have a robust
training program in place to address those particular areas in our
decisions in which QR has identified problems. Our quality goal for
Fiscal Year (FY) 2006 is a deficiency free decision rate of 92 percent.
As of the end of June fiscal year 2006, our deficiency free decision
rate stood at 92.4 percent, slightly above our target goal.
Many of the cases that are remanded to the Board by the Court have
nothing to do with the correctness of our decisions at the time we made
them. Under the Court's jurisprudence, a change in law generally is
effective immediately and applicable to all pending cases. Thus, where
the law changes while a case is pending on appeal, the case generally
must be remanded for readjudication under the new law, regardless of
whether the Board's application of the law was correct at the time the
decision was issued. Our data show that from the period of December
2000 to the end of June 2006, of all the individual issues that were
remanded to us by the Court, 10.8 percent resulted from a change in
case law and another 22.8 percent were remanded for the application of
new legislation or regulation.
Question 2. Please provide more detail on the Board's workload
increase. For the most current fiscal year for which you are able to
provide such information, give us a breakdown on the type of claim,
including how many are original, how many are seeking an increase in
benefits, along with information on the specifics of the claim in terms
of the disease or disability claimed. Also please show a breakdown on
the period of service of the claimant or, if the claim is from a
survivor, the period of service of the veteran.
Answer. In response to your question, we have provided relevant
information in Attachment A. This data has been extracted from VA's
appeals data base, the Veterans Appeals Control and Locator System
(VACOLS). We have included charts providing a breakdown of the Board's
decisional output for fiscal year 2005 and for fiscal year 2006 through
the end of June by type of action, by disposition by program area, and
by period of service of the veteran claiming benefits or through whose
service derivative benefits are claimed. In addition, for increased
rating cases, we have provided a breakdown for both time periods by
individual issues correlated with the applicable diagnostic codes.
Question 3. You mention that ``precedents issued by the Veteran's
Court can have a profound and wide-ranging impact on the department's
adjudication system.'' This is certainly how it should be but I am
concerned that the impact of a precedent decision is not always fully
understood or implemented with VA. Please describe how a precedent
decision from the Court is analyzed within VA and, once the analysis is
completed, how the meaning of the decision is provided to adjudicators
from the regional offices and the Board.
The Board's Appellate Group carefully reviews all decisions of the
CAVC and the U.S. Court of Appeals for the Federal Circuit, both
precedential and nonprecedential. As soon as possible following their
issuance, they circulate all precedential court decisions by electronic
mail to our Veterans Law Judges (VLJs) and staff counsel, together with
a summary and short analysis of the case. A similar process is employed
for the dissemination of new legislation, regulations, and precedent
opinions of VA's General Counsel. Selected nonprecedential court
decisions of interest are also periodically circulated, with briefer
accompanying materials. In addition, all our VLJs and counsel may
independently access judicial decisions that are posted on the courts'
Web sites or are reported in Westlaw.
Representatives of the Board meet at least monthly and as often as
is necessary with their counterparts in the Office of the General
Counsel, the Veterans Benefits Administration, and the Veterans Health
Administration to discuss the impact of significant decisions of our
reviewing courts. Guidance on important decisions may be generated
jointly, by each organization individually or be disseminated centrally
by the Office of the General Counsel. Training is conducted on
important precedent decisions, as well as other pertinent areas of law
and medicine, either jointly or by each VA component. In addition, the
Board provides training by videoconference with participating VA
Regional Offices (ROs), and offers training by our VLJs and counsel on
Travel Board visits to the ROs.
The Board's VLJs and counsel are all attorneys and have
considerable expertise in the area of veterans law. It is an essential
responsibility of their job to interpret and apply the decisions of the
Court to the cases before them. In order to ensure consistency and
encourage a free exchange of ideas on the interpretation of judicial
precedent, the Board conducts periodic ``Grand Rounds'' training
sessions for all our VLJs and counsel covering significant changes in
the law, as well as a wide range of ongoing training for our judges and
counsel in the various specialized areas of law and medicine within the
Board's jurisdiction.
It must be emphasized that the law is an ever-evolving process.
Courts generally decide only the specific issue before them and,
therefore, controlling precedent is often revealed in a piecemeal
fashion. Further, judicial decisions are not always paradigms of
clarity. For example, while the Veterans Claims Assistance Act (VCAA)
was enacted in November 2000, over the ensuing years the meaning and
application of its notice provisions alone have been the subject of
numerous and, at times, contradictory decisions of the courts and
remain a subject of active litigation. As the law changes with each new
precedential decision, actions taken by VA that appeared to be in
compliance with existing law may be deemed to be deficient in
retrospect. The point is that it is not always possible to immediately
grasp the full implications of a decision of the court and that, even
if they are correctly understood, subsequent precedent may change that
understanding. I can assure you, Senator Akaka, that we at the Board do
everything possible to ensure that our VLJs and counsel understand and
comply with the law, including all precedential court decisions.
Question 4. Mr. Terry, how low can BVA's rate of cases remanded to
the Regional Offices realistically go? Of the current number of cases
remanded by the Board to the RO's, what percentage are as a result of
the regional offices not doing a complete job when they first had the
cases?
Answer. In July 2004, the Under Secretary for Benefits and I were
charged by the Deputy Secretary, to the extent possible, to eliminate
those remands by BVA to the ROs that can be avoided. Part of the Deputy
Secretary's charge was to mutually develop a mechanism for tracking the
reasons why a case is remanded. Obviously, we need to understand where
the problems are in order to remedy them.
As a result, starting in November 2004, we implemented a new system
for tracking the reasons why each issue on appeal was remanded. There
may be multiple reasons for remand for each case. Our tracking system
divides those reasons into those that arose before certification and
transfer of the record to the Board--that is, while the case was under
the control of the RO--from those reasons arising after certification
and transfer of the record to the Board, when the Board has
jurisdiction of the case. Our data show that for fiscal year 2005, 60.3
percent of the issues remanded were for pre-certification reasons and
that 39.7 percent were for post-certification reasons. So far in fiscal
year 2006, pre-certification reasons constitute 52.8 percent of the
total and 47.2 percent were for post-certification reasons.
While there clearly is room for improvement throughout the system,
cases must often be remanded because of the requirements of current law
and events that are beyond either the RO's or the Board's control. As I
discussed in my responses to your first and third questions above, a
change in law that occurs while the case is on appeal to the Board or
to the Court will generally require a remand for readjudication if a
due process or substantive right is involved. A remand also may be
required for a variety of other reasons while the case is at the Board,
such as the submission of new evidence, a revelation that there are
pertinent Federal records of which we were previously unaware, an
alleged change in the severity of a disability for which increased
compensation is sought, additional information concerning alleged
stressors in a service connection case for PTSD, a request for a
hearing, just to name a few. In these instances, a remand is necessary
so that our Nation's veterans and their families receive all the due
process to which they are entitled. In view of these factors and with
the understanding that we will never achieve perfection, I would
estimate that we eventually may bring the remand rate down to between
27 and 30 percent.
Question 5. With respect to the claims involving ``bilateral''
tinnitus discussed in your testimony, could the Board have either
consolidated those cases or decided a lead case and held the others
pending a decision by the court?
Answer. The Board could not have taken either of these actions. As
noted above, in response to your first question, the Board has no
control over which of its decisions will be appealed to the Court. By
statute, the Secretary cannot appeal a Board decision to the Court. See
38 U.S.C. Sec. Sec. 7252(a), 7266(a). Hence, it is impossible for the
Board to designate a lead case for judicial review.
Nor does the Board have the authority to consolidate cases. By
statute, the Board must consider and dispose of the cases before it in
the order in which they appear on its docket. The exceptions to this
are limited to cases that may be advanced on the docket because of good
cause, such as serious illness, financial hardship or advanced age, or
remands returned to us, which require expeditious treatment. See 38
U.S.C. Sec. Sec. 5109B, 7107(a), 7112.
However, the Secretary has maintained that the Department has the
authority to stay final action on cases that may be affected by the
outcome of a decision on appeal to the courts. This was the action that
was taken during the pendency of the Department's successful appeal to
the Federal Circuit of the CAVC's decision in the ``bilateral''
tinnitus case. Smith v. Nicholson, 19 Vet.App. 63 (2005), rev'd, No.
05-7168, 2006 U.S. App. LEXIS 14919 (Fed. Cir. June 19, 2006). A stay
has an effect similar to that of consolidation, in that it preserves
the status of pending appeals until their common controlling legal
issue is resolved. However, the Secretary's authority to impose such a
stay has been challenged by several petitions for writs of mandamus.
See Caudill et al. v. Nicholson (No. 06-1541) (U.S. Vet. App, June 23,
2006). Litigation on this matter is continuing.
Question 6. In fiscal year 2005, how many cases were decided by the
Board where all benefits sought were denied? Where some benefits were
denied and others granted? Are mixed decisions counted (for purposes of
compiling statistics) as denials or grants?
Answer. For reporting purposes, the Board's long-standing practice
is to record as a ``denial'' a decision in which all the benefits
sought on appeal are not granted. In the case of decisions with mixed
dispositions, we record a decision in which at least one issue was
remanded, but none granted, as a ``remand.'' A decision in which at
least one of the benefits sought is granted, in whole or in part, is
recorded as an ``allowance,'' regardless of the disposition of any
other issue.
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Chairman Craig. Thank you very much for that testimony.
Now let me turn to Joe Violante, National Legislative
Director, Disabled American Veterans. Joe, again, welcome
before the Committee.
STATEMENT OF JOSEPH A. VIOLANTE, NATIONAL LEGISLATIVE DIRECTOR,
DISABLED AMERICAN VETERANS
Mr. Violante. Thank you, Mr. Chairman and Members of the
Committee. Disabled American Veterans shares your interest in
ensuring veterans have effective and efficient claims and
appeals processes. We thank you for conducting this timely
hearing on the U.S. Court of Appeals for Veterans Claims.
For the most part, the superimposition of the judicial
review on the administrative processes of the Department of
Veterans Affairs has had a positive effect. On a personal note,
I spent 5 years, between 1985 and 1990, as a VA staff attorney
at the Board of Veterans Appeals, reviewing thousands of
veterans' appeals. In 1990, I was hired by DAV to represent
veterans before the newly established U.S. Court of Veterans'
Appeals, during which time I reviewed hundreds of potential
judicial appeals records and represented hundreds of veterans
before the court.
After more than 2\1/2\ years of representing veterans
before the court, I became frustrated with the court's failure
to deal with legal arguments presented by appellants, i.e.,
their reluctance to reverse rather than remand a case. For
example, after presenting a brief which argued for reversal of
the BVA decision, counsel for the Secretary would confess
error, alleging that the Board failed to provide adequate
reasons or bases for its decision, whereupon the court would
remand the cases back to the Board and open up the evidentiary
record for further development, notwithstanding the appellant's
argument that the record was sufficient to establish
entitlement to the benefits sought.
Unfortunately, 17 years after the court began hearing
appeals, this practice still continues. In all too many cases,
an appellant must appeal to the court at least twice to receive
a decision on the merits of his or her appeal. In those cases
where the Board has failed to provide adequate reasons or
bases, it would appear to make more sense to require the Board
on remand to explain its decision based on the evidence of
record at the time of the original Board decision, provided the
appellant has not argued that the record on appeal was
defective.
By requiring the Board to examine its decisions based on
the evidence of record, the VA would be prohibited from going
out on a fishing expedition to develop evidence to support its
prior erroneous denial of benefits. Allowing VA to further
develop evidence after having seen appellants' arguments
regarding defects in its prior denied decision provides VA with
a distinct advantage over appellants.
Accordingly, I would recommend that when the court
determines, and I might add this should be only in a very small
percentage of the cases, that the Board decision is defective
for failure to state adequate reasons or bases and the
appellant has not alleged any defects in the evidence of
record, the Board should be required to articulate its decision
based on the evidence of record. In all other cases where the
evidence is sufficient to establish entitlement to the benefits
sought, the court should and must reverse the BVA decision.
Another frustration experienced by appellants is delays in
obtaining a disposition from the court, as we have heard in
testimony and see on your charts, especially in single-judge
decisions. In 1990, the court articulated in Frankel v.
Dewinski that it would summarily decide by order an appeal
where the case on appeal was of relative simplicity and does
not establish a new rule of law, does not alter, modify,
criticize, or clarify an existing rule of law, does not apply
an established law rule to a novel facts situation, does not
constitute the only binding precedent on a particular point of
law, does not involve a legal issue of continuing public
interest, and the outcome is not reasonably debatable.
Unfortunately, many of these single-judge decisions take a year
or longer to be decided. It is difficult to understand why an
appeal of relative simplicity should take an inordinate amount
of time to decide. Accordingly, I believe both the court and
this Committee should closely examine why there are such long
delays in cases of relative simplicity.
Mr. Chairman, this concludes my testimony and I would be
more than happy to answer any questions.
[The prepared statement of Mr. Violante follows.]
Prepared Statement of Joseph A. Violante, National Legislative
Director, Disabled American Veterans
Mr. Chairman and members of the Committee:
The Disabled American Veterans (DAV) shares your interest
in ensuring veterans have effective and efficient claims and
appeals processes. Since Congress enacted legislation in 1988
authorizing judicial review of decisions by the Board of
Veterans' Appeals (BVA) and establishing what is now the United
States Court of Appeals for Veterans Claims (the Court or CAVC)
with special jurisdiction for that purpose, the complexion of
the claims and appeals processes for veterans has changed
dramatically. For the most part, the superimposition of
judicial review on the administrative processes of the
Department of Veterans Affairs (VA) has had a positive effect.
With independent review from outside VA, we have seen the law
carefully examined to ensure it is carried out according to
congressional intent, and to ensure that correct application of
the law takes priority over administrative expedience.
Expedience and efficiency are, of course, not synonymous.
Neither does efficiency mean solely speed nor a constrained
expenditure of resources, but rather that a thing is done as
well as possible with optimum speed and with the fewest
resources necessary. There must be a balance among quality,
speed, and resources. Because, in the name of efficiency,
political forces often unrealistically press administrative
agencies to produce more with less, real efficiency suffers.
When that happens with VA, as it so often does, veterans
suffer the consequences of the adverse impact. Judicial review
can correct the injustices that result. By design, courts
operate independently of these kinds of political pressures,
and are therefore theoretically better guardians of the law and
justice. Autonomy brings with it a special obligation to
conscientiously pursue efficiency without outside pressure,
however. Increasing case loads and slower processing times in a
court may simply be the product of more work without a
commensurate increase in resources, or it could signal
declining efficiency, or both.
The Court rightfully has a great deal of independence, but
it should not operate without any oversight. As an ``Article
I'' court, CA VC is an instrumentality of Congress, unlike
Article III courts. So long as it does not affect the
independence of the decisionmaking or encroach upon the broad
discretion as to internal operating procedures, the DAV
believes that limited oversight is appropriate. Should Congress
find an imbalance between resources and workload, it is
Congress' responsibility to remedy the shortfall through
additional funding or any authority necessary to use available
resources in different ways. Should Congress conclude that
increasing case backlogs are the product of inefficiency, it
can leverage improvement through more general pressures and
without direct interference in the operations or decisionmaking
processes. These principles involve no mysteries or concepts of
which this Committee is unaware, but we believe they merit
restating to provide an analytical foundation for consideration
of the matters to be addressed.
In his March 2, 2006, written statement to the Subcommittee
on Military Quality of Life and Veterans Affairs, and Related
Agencies of the House Appropriations Committee, Chief Judge
William P. Greene, Jr., discussed ``a dramatically escalating
number of new cases.'' In fiscal year (FY) 2005, the Court
received 3,466 new cases, compared with a yearly average of
2,400 cases for 8 of the preceding 10 years, an increase of 44
percent during fiscal year 2005 and ``the largest number of
case filings ever.'' That trend had continued during the first
quarter of fiscal year 2006.
The Chief Judge pointed to an increased number of denied
appeals by BVA in fiscal year 2005. In fiscal year 2005, BVA
issued 13,033 denials, compared with 9,299 the previous year.
In addition, the number of appeals to the Court as a percentage
of BVA denials rose considerably over the level in fiscal year
2000 and earlier years, from 17.3 percent in fiscal year 2000
to 26.6 percent in fiscal year 2005.
According to the Chief Judge's testimony, the majority of
appeals to the Court involve claims for disability benefits,
which is consistent with BVA data listed in the fiscal year
2005 Report of the Chairman showing that 94.2 percent of BVA
dispositions during fiscal year 2005 involved disability
compensation. VA's fiscal year 2007 Budget Submission indicates
the number of veterans filing initial disability compensation
claims and claims for increased benefits has increased every
year since 2000, with disability claims from returning war
veterans and veterans of earlier periods increasing from
578,773 in fiscal year 2000 to 788,298 in 2005. By our
calculation, this represents an average annual increase of more
than 6 percent in the 5 years from the end of fiscal year 2000
to the end of fiscal year 2005. VA projects it will receive
910,126 claims in fiscal year 2006.
Although the number of appeals listed as denied by BVA may
be the best indicator of potential workload for the Court,
appeals to the Court come from the total number of cases
decided on the merits, that is, not remanded. Cases listed by
BVA as ``allowed'' may not have been decided fully favorably or
favorably on all issues. Of the 31,397 total BVA decisions in
fiscal year 2003, the allowed and denied together totaled
16,874. For fiscal year 2004, this total was 15,860. For fiscal
year 2005, it was 20,128.
The caseload volume upstream can be expected to influence
the workload volume downstream, with some lag time. The input
volume at the Court is an indicator of resource needs; the
output volume is an indicator of efficiency.
In his written statement, Chief Judge Greene acknowledged
that case output has fallen off since fiscal year 2002. He
attributed the decline to several factors--a spate of remands
in 2000 to 2002 for compliance with new legislation that
accounted for more dispositions; a full contingent of
experienced judges up to 2002, with only five judges from 2003
to the second quarter of FY 2005; and an increase in caseload
between fiscal year 2004 and fiscal year 2005. (He did not
explain how the increased caseload contributed to fewer
dispositions.) In addition, he noted that nearly 60 percent of
the new cases were filed by unrepresented appellants, requiring
more work by the Court. Although he did not explain whether
this represented an increase in pro se appellants, the Court's
annual reports show that 70 percent of appellants or
petitioners were unrepresented at filing in 2000 and that 58
percent were unrepresented at filing in fiscal year 2005. At
the time of closure, 29 percent were unrepresented in fiscal
year 2005. In the 5 years from fiscal year 2001, an average of
57.7 percent were unrepresented at the time they initiated
action with the Court, and 26 percent were unrepresented at
closure.
In response to questioning from members of the
Subcommittee, Chief Judge Greene reported that case production
began increasing in 2005 as the newer judges became fully
staffed and gained experience:
I also would like to note that the number of cases decided
in the first quarter of calendar year 2005 was 472. This was
when our new judges were hiring staff and gradually receiving
cases, and our senior judges were preparing to retire and no
longer receiving new cases.
In the last 3 months of calendar year 2005, when the new
judges were fully staffed and had more than 6 month's
experience, the number of cases decided increased by over 100
to 579.
In the first 59 days of calendar year 2006, we have already
decided 366 cases.
Following that trend, we can expect to decide almost 600 by
the end of the first quarter. I have every reason to anticipate
that we will continue to process the cases expeditiously.
According to the Court's annual reports, the number of new
cases declined from 2,442 in fiscal year 2000 to 2,296 in 2001
and 2,150 in 2002. That number increased to 2,532 in 2003,
declined to 2,234 in 2004 and rose, as noted, to 3,466 in
fiscal year 2005. The total cases decided for those years were:
2,164 in fiscal year 2000, 3,336 in 2001, 1,451 in 2002, 2,638
in 2003, 1,780 in 2004, and 1,905 in fiscal year 2005. Cases
that went to a full decision on the merits. presumably those
that most reflect the Court's production, increased from 1,619
in fiscal year 2000 to 2,853 in fiscal year 2001, dropped
precipitously to 972 in 2002, increased to 2,152 in fiscal year
2003, dropped substantially again to 1,337 in fiscal year 2004,
and declined even more to 1,281 in fiscal year 2005. We note
that the Court received 2,532 new cases in fiscal year 2003 and
decided a total of 2,638, of which 2,152 were merits decisions,
as compared with fiscal year 2005 when it received 3,466 and
decided a total of 1,905, of which 1,281 were merits decisions.
In 2005, the Court issued 56 fewer merits decisions than in
fiscal year 2004. We note that the Court counts cases remanded
on joint motions by the parties as merits ``decisions.''
The Court issued 53 precedent decisions during fiscal year
2005. Through May of this year, CA VC had issued 24 precedent
decisions.
The Court's annual reports show the average ``Time from
filing to disposition'' was 379 days for fiscal year 2005.
Chief Judge Greene stated in his oral testimony:
I am happy to report that the average number of days from
filing to decision has decreased from high of 430 days in
calendar year 2005 to currently 370. Further, our statistics
show that 64.7 percent of all cases decided in calendar year
2005 were decided within 1 year. This is an increase from 30.8
percent decided within 1 year in calendar year 2004.
Cases taking more than a year have decreased from 41.6
percent in calendar year 2004 to 22.4 percent in calendar year
2005.
(Emphasis added.) Apparently, the fiscal year 2005 processing time
of 379 days increased to 430 days for calendar year 2005 and had
dropped back to 370 days at the time of the Chief Judge's March 2006
testimony. The cited drop in the cases taking more than a year in 2005
should be considered in light of the fact that the total cases decided
in 2005 was made up of a higher number of procedural decisions and a
lower number of merits decisions than in 2004 (if the fiscal year
numbers we know from the Court's annual report are consistent with the
calendar year numbers stated in testimony).
According to the BVA Chairman's annual report for fiscal year 2005,
the average length of time between the initiation of an appeal with a
VA field office and receipt of the case at BVA was 824 days in fiscal
year 2005. Issuance of a BVA decision took another 160 days on average.
If we add another 370 days for a decision by the Court, the total time
for an appeal is 1,354 days, nearly 4 years. Of course, that being the
average, roughly half of all appeals can be expected to take even
longer.
Disabled veterans who are often elderly and quite sick must wait
for unacceptably long periods of time for resolution of their appeals,
and substantial percentages prevail ultimately. No doubt, the
protracted delay creates a hardship for many.
Although we can draw some inferences from the data publicly
reported by the Court, much about the Court's internal operations is
not transparent to the public, and more precise efficiency
determinations would require data on the flow of cases, timelines, and
volume of cases pending in each judge's chambers, as well as delays
attributable to motions for extension of time by VA and appellants'
counsel.
Indisputably, the long processing times suggest inadequate
resources, the need for increased efficiency, or both. In any event,
with a 44 percent increase in new cases during fiscal year 2005, with
that trend continuing into fiscal year 2006, and with approximately
5,000 cases pending before the Court according to the Chief Judge's
March 2006 testimony, we must question why the Chief Judge would
request funding for only one additional employee or full time
equivalent, a 1 percent increase in staffing.
In his testimony, the Chief Judge stated: ``I am confident that we
will reduce [the] backlog significantly and at the same time process
all cases expeditiously.'' With more than three-quarters of fiscal year
2006 passed, this Committee should look to the Court's most recent data
(which DAV was unable to obtain) to determine if that seemingly
ambitious and optimistic prediction was warranted.
From the inception of judicial review of claims for veterans'
benefits, the DAV has been a major participant in providing free
representation to appellants before the Court, to complement our free
representation of a large share of claimants throughout the
administrative claims and appellate processes. In support of our
primary mission of service to veterans, we provide all resources
necessary to enable our staff of attorneys and non-attorney
practitioners to effectively represent appellants before the Court. We
believe disabled veterans, and their eligible family members, should be
able to obtain the benefits a grateful nation provides for them without
undue burdens or cost to them.
The DAV appreciates the Committee's interest in this aspect of the
backlogs and delays claimants must cope with in pursuing claims and
appeals for veterans' benefits.
______
Response to Written Questions Submittted by Hon. Daniel K. Akaka to
Joseph A. Violante
Question 1. Mr. Violante, can you please explain the need for the
court to be housed in its own dedicated building, designed to its
specific needs and befitting its authority? How could a dedicated
courthouse aid in the diminishment of the court's caseload?
Answer. Veterans and other persons claiming benefits from the
Department of Veterans Affairs (VA) have benefited substantially and
materially from the jurisprudence of the United States Court of Appeals
for Veterans Claims (CAVC).
During the almost 17 years since the CAVC was formed in accordance
with legislation enacted in 1988, it has been housed in commercial
office buildings. The Courtroom, chambers, and other space is
inadequate to meet the present and future needs of the Court and those
it serves. It is the only Article I court that does not have its own
courthouse. The CAVC should have its own dedicated building that meets
its specific functional and security needs, projects the proper image,
and concurrently allows the consolidation of VA General Counsel staff,
CAVC practicing attorneys, and veterans service organization
representatives to the CAVC in one place. The CAVC should have its own
home, located in a dignified setting, with distinctive architecture
that communicates its judicial authority and stature as a judicial
institution of the United States.
There is no direct correlation between a dedicated courthouse and
the diminishment of the Court's caseload. However, it is in the
interests of veterans and their dependents that the Court be accorded
the same respect enjoyed by other appellate courts of the United
States. It would also allow the Court to have additional space
available for the possible recall of judges in the future.
Question 2. You noted in your testimony that much of the court's
internal operations are not transparent to the public. What more data
would be required in order to determine court efficiency?
Answer. Specific data showing the time that transpired following
the date on which the appellant's reply brief was filed would serve
this purpose. Chief Judge Greene was correct when he stated that both
the appellant and VA often file motions for extension of time. Such
additional time taken by the parties does not indicate any inefficiency
on the part of the Court. Once the appellant's reply brief is filed, or
20 days following the appellee's brief if no reply brief is filed, the
case is before the Court for resolution. According to the Chief Judge,
the judges of the Court disposed of approximately 1,300 appeals during
Calendar Year (CY) 2005. Fewer than 60 of those were resolved in three-
judge, precedent decisions. The remaining 1,240 were decided in single-
judge orders or memorandum decisions. Each of the 1,240 were therefore,
under the Court's Frankel precedent, 1 Vet.App. 23 (1990), of relative
simplicity, controlled by the existing case law, and not reasonably
debatable. Id. at 25-26. Nonetheless, the Court not infrequently takes
between 1 and 2 years to resolve similar cases. Examples of long-
pending cases currently awaiting disposition include: Richer v.
Nicholson, CAVC No. 03-0910 (reply brief filed May 3, 2004); Washington
v. Nicholson, No. 03-0773 (reply brief filed June 21, 2004) ; Wakely v.
Nicholson, No. 04-0196 (reply brief filed December 10, 2004);
Palczewski v. Nicholson, No. 04-1001 (reply brief filed April 23,
2005); Clark v. Nicholson, No. 04-0577 (reply brief filed June 6,
2005); Jandreau v. Nicholson, No. 04-1254 (reply brief filed July 5,
2005); Grant v. Nicholson, No. 04-1257 (reply brief filed July 7,
2005).
We understand that information about long-pending cases is gathered
by the Court but not widely distributed. It appears that a list, the
extent of which is not known to DAV, is compiled by the Clerk and that
the list shows the long-pending cases in chambers. However, the
information for all chambers is only made available to the Chief Judge.
The associate judges receive information from the list only with
respect to their chambers. Judges are not encouraged by their
colleagues to complete old cases because their colleagues are unaware
of these older cases.
DAV believes that there is no need to unduly embarrass any judge of
the Court. However, if the Clerk were required to include on the list
all cases in which a reply brief had been filed 6 months or more
earlier, and the complete list were required to be circulated to all of
the judges of the Court, this action would encourage judges to complete
the older cases. The Committee could consider asking the Court to
provide the list to the Committee at a future date if efficiency did
not improve.
Question 3. How should court efficiency be measured?
Answer. The DAV believes that Court efficiency should be measured
in two ways. The first measure should be the number of days that elapse
from the date the appellant files the reply brief, or the date
following the deadline for appellant's reply brief, until the date on
which the Court issues its decision. The standard should be 120 days in
the case of single-judge dispositions and 180 in the case of a panel
decision. An additional 90 days should be allowed in cases where the
Court hears oral argument. These suggestions are in line with the time
required for decisions from the United States Court of Appeals for the
Federal Circuit. The second measure should be the number of
dispositions, by either order or memorandum decision, completed per law
clerk. Based on the number of memorandum decisions completed by the
Court in CY 2005, approximately, 1,240 and the number of authorized law
clerks, 28, the average number of decisions completed per law clerk was
less than 1. The standard should be no less than 2, a number which the
Court has achieved in the past.
Chairman Craig. Well, gentlemen, thank you very much for
being before us. I am pleased that your expression of concern
and urgency is also that of the Committee's.
A question to you, Mr. Terry, and possibly to Randy
Campbell. To help the Court deal with its increasing caseload,
the Court is considering using judges to conduct settlement
conferences and some practitioners have recommended that the
Court adopt a formal mediation system. In your opinion, would
adopting either of these measures help speed resolution of
cases before the court?
Mr. Terry. I certainly request Randy's view, as well, but I
have seen the process work in other departments and it
certainly can be effective if, in fact, the system is well
constructed and both sides have the opportunity to be heard.
Sometimes a difficulty that I have experienced, and this was
both in the Department of State and Department of the Interior
where we set up similar systems, is that scheduling settlement
conferences of this kind and bringing them to conclusion often
is as time consuming as hearing some of the cases. But I would
certainly defer to Randy on his thoughts, as well.
Mr. Campbell. Mr. Chairman, I think----
Chairman Craig. Randy, before you respond, let me add to
that another question that you may want to respond to, and Joe,
I will turn to you later. The second question would be--and you
started to touch on it, Jim--are there any specific advantages
or disadvantages that you would foresee to either of these
approaches?
Mr. Campbell. Mr. Chairman, I think that the numbers we
have heard today indicate that to address the backlog of cases
requires open-mindedness and creativity, and the idea of
mediation or something like that certainly is worth
consideration. I would note that under the court's current
procedures, they have a very active and expert central legal
staff that conducts conferences between the parties, where
there is a represented veteran, in order to narrow the issues
and at times to encourage the parties, when they can, to
negotiate a joint disposition.
I don't have the exact numbers with me, but I believe that
when one looks at the total number of cases remanded by the
court over the last couple of years, that perhaps 50 percent or
more were cases remanded on joint motion of the parties. So the
parties themselves in the current process communicate, and are
very active in trying to find a joint disposition of the case
so it doesn't have to go to a judge. And, in fact, in my office
with the General Counsel's Office, we have a team that we call
the early intervention team that is devoted to this very
purpose.
Chairman Craig. OK.
Joe.
Mr. Violante. Thank you, Mr. Chairman. I would certainly
support that type of an endeavor before this court. I have seen
it work in civil courts and I think it certainly would be
beneficial to have it in this court here on a more active
basis. As Randy pointed out, the central legal staff does
conduct joint conferences, but it certainly would be nice to
elevate that to another level.
Chairman Craig. Joe, a question of you. Mr. Terry noted in
his testimony that some spikes in the appeal rate result from
efforts to present particular legal issues to the Court by
filing numerous cases that all raise the same legal issue. For
example, you mentioned that hundreds of recent appeals to the
Court all sought the same relief, dual ratings for a bilateral
tinnitus. In those circumstances, would it be more efficient to
allow some type of limited class action rather than having
hundreds, if not thousands, of cases which raise the same issue
proceeding separately through the system?
Mr. Violante. Mr. Chairman, that is an interesting question
and I am not sure how the mechanics would work, but it
certainly would be something to explore. This is an appellate
court and how do you get that class together? Fees would have
to be determined. But certainly, I think it would certainly
make it more expedient to move those through some other way
than currently is the process.
Chairman Craig. Mr. Terry, Mr. Campbell, do you have any
observation in relation to that question?
Mr. Terry. I certainly think that this can be done and can
be worked out. I think we need to adopt some of the procedures
that are presently used in other similar courts, similar
Article I courts that presently do this. I honestly believe
that it can be worked out with relative simplicity, sir.
Chairman Craig. Well, gentlemen, that is the extent of my
questions. This Committee and my colleagues, as I expressed to
the Judge and the judges in attendance, are very intent on this
issue. We are going to stay with it and we want you to stay
with us as we work through this thing.
If we can't change that trend that is demonstrated behind
me, we are going to have an awful lot of our veterans standing
in line waiting for a very long time for something they may or
may not deserve, and that is why we have this process. I think
it is unacceptable that we allow a ping-pong effect in some
instances within the legal system to satisfy the legal system
more than to satisfy the need of the veteran. And while it may
be intent on satisfying the need of the veteran, oftentimes it
becomes, if I can be crass enough to use the word, a game in
itself. That is just unacceptable.
That is why the Court was developed. It is why we are
intent on, where we can, making it effective. We viewed
historically a kind of the exception to the rule, but as the
world changes, we are recognizing that maybe this Court ought
to become more like other Article I courts in many respects.
And certainly dealing with the process and procedure as it
relates to timely handling of the cases is something that I
think we are going to review and have to review on behalf of
the charge of this Committee and its responsibility to
veterans.
Your thoughts as we work our way through this and work with
the judges to resolve this is going to be extremely important
because the Court itself is relatively new. And you are right,
this is a dynamic process that is changing based on the
character of veterans, their needs, based on statute and all
that we do here, and it has to be dealt with in a responsible
and timely fashion.
So thank you all very much for being with us this morning
and we appreciate your testimony.
The Committee will stand adjourned.
[Whereupon, at 11:43 a.m., the Committee was adjourned.]
A P P E N D I X
----------
Prepared Statement of Robert V. Chisholm, Past President, National
Organization of Veterans Advocates
Thank you for inviting testimony from the National Organization of
Veterans Advocates (NOVA) on the issue of the increase in the number of
appeals being received by the United States Court of Appeals for
Veterans Claims (Court) and the number of cases pending at the Court.
The Court's increasing case load concerns all who work for
veterans. NOVA appreciates the Court's openness in trying to resolve
this problem, including its recent ``Bright Ideas'' breakfast at the
Court's Judicial Conference where it invited practitioners to share
ideas on improving the Court's processes. In addition, NOVA understands
that the Court has only recently reached its full complement of Judges.
Nonetheless, as the numbers of filings and decisions demonstrate,
careful attention by the Court is required. The true nature of the
problem, moreover, is not revealed in the statistics provided to
Congress because the number of reported ``cases decided'' includes the
decisions the Judges make on the merits after briefing along with
entries made by the Clerk based on Joint Motions from the parties to
remand a case. (In a Joint Motion to Remand, the parties identify one
or more administrative errors and request a remand to the Board of
Veterans' Appeals based on that. The entry approving the Motion is made
by the Clerk, without review from a Judge.). The ``cases received''
compared to ``cases decided,'' furthermore, does not reflect the length
of time that cases have been pending--some for as long as 2 years after
briefing is completed.
NOVA's experience suggests that some of the current backlog is
related to the Court's historical treatment of cases and claims; i.e.,
it has typically remanded, not reversed, when it deemed that the Board
of Veterans' Appeals erred. And, once it determines that remand is
proper, it will generally decline to review other errors. Best v.
Principi, 14 Vet. App. 18 (2001); Mahl v. Principi, 15 Vet. App. 37
(2001). As a result, many cases on appeal to the Court are there for
the second, third, or fourth time, often with the same issues to be
decided. Add those to the cases that are on appeal for the first time,
and a backlog cannot help but be created. Even the most hard-working
and productive Judges will not be able to keep up.
NOVA believes that there has been resistance to reversal of Board
decisions by the Court. This has discouraged the VA from realistic
efforts at settlement of some or all issues in a case. Veterans'
representatives accept offers to remand cases on terms that do not
resolve many issues because they perceive that the odds of obtaining
greater relief from the Court are very low and because the delays are
so long. It appears to NOVA that the Office of the General Counsel
could understandably believe that, because the odds of reversal are
low, they have nothing to lose by refusing to resolve issues in a
meaningful way and instead force a decision from the Court.
Congress attempted to correct the relatively small percentage of
reversals in 2002 when it added the phrase ``or reverse'' to 38 U.S.C.
Sec. 7261(a)(4). Veterans Benefits Act of 2002, Sec. 401, Pub. L 107-
330, 116 Stat. 2832 (2002). The Court has not yet established
parameters through its case law that would support a greater percentage
of reversals. The Court, rather, continues to hold that reversal is
only possible when the only permissible view of the evidence is
contrary to the Board's decision; and that, where the Board has
incorrectly applied the law, failed to provide an adequate statement of
reasons or bases for its determinations, or where the record is
otherwise inadequate, remand is generally the appropriate remedy.
Washington v. Nicholson, 19 Vet. App. 362, 371-372 (2005). But if the
evidence does not preponderate against the claim, or where the Board
has made all the necessary factual findings, the Court could--and
should--reverse. See Washington, at 375 (dissent by Kasold, J.); Rose
v. West, 11 Vet. App. 169, 172 (1998) (``This is not to say that
medical evidence of nexus could not be rebutted, in an appropriate
case, by medical evidence that demonstrates the significance of a lack
of continuity of symptomatology. However, no such evidence exists and
it is not the function of judicial review simply to accord the
government a remand to obtain such evidence.'').
The Court has also attempted to limit the number of cases it must
decide through a Pre-Briefing Conference system conducted by attorneys
in the Court's Central Legal Staff. These conferences can be helpful in
forcing the parties to communicate about the case and in focusing the
issues. But veterans' representatives have been frustrated by the lack
of preparedness by some opposing counsel and the lack of true mediation
techniques applied to elicit concessions and limit the issues. Limiting
the issues and limiting the cases that need to be briefed would in turn
limit the number of decisions the Court needs to make.
Based on the above, NOVA therefore recommends that Congress:
Institute a case-tracking and reporting system based on accurate
descriptions of case status, separating cases into cases that have been
decided after briefing from other cases in the system; and tracking the
time from the completion of briefing to the interim steps of completion
of CLS memo and assignment to a Judge. Reporting accurate numbers helps
focus on the true nature of the problem and thus helps identify any
needed solutions.
Require the Court to adopt a meaningful mediation system that would
increase the number of cases resolved prior to briefing and would limit
the number of issues the Court would need to address.
Amend the statute to overturn Best/Mahl, so that issues that are
likely to be presented again on remand are resolved the first time the
case is appealed.
Amend the statute to clarify that the Court is permitted to reverse
when the evidence establishes the right to the benefit sought or that
an error of law has been committed by the Board.
Amend the statute to clarify that when the evidence of record
establishes the right to the benefit sought, the Court should not
remand simply to give the agency another opportunity to develop
evidence that would support a denial of the benefit.
Thank you again for this opportunity.