[Federal Register Volume 66, Number 189 (Friday, September 28, 2001)]
[Rules and Regulations]
[Pages 49538-49539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24304]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 20

RIN 2900-AJ58


Board of Veterans' Appeals: Rules of Practice--Subpoenas

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Board of Veterans' Appeals (Board) adjudicates appeals 
from denials of claims for veterans' benefits filed with the Department 
of Veterans Affairs (VA). This document adopts as a final rule 
amendments to a Board Rule of Practice concerning subpoenas.

DATES: Effective date: October 29, 2001.

FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Senior Deputy Vice 
Chairman, Board of Veterans' Appeals, Department of Veterans Affairs, 
810 Vermont Avenue, NW, Washington, DC 20420 (202-565-5978).

SUPPLEMENTARY INFORMATION: On February 15, 2000, VA published a 
proposed rule in the Federal Register (65 FR 7468), to clarify a Board 
Rule of Practice at 38 CFR 20.711 dealing with subpoena procedures in 
Board proceedings. The proposed changes relate to: (1) Where such a 
motion must be filed; (2) ruling on the motion; (3) service of a 
subpoena; (4) motions to quash or modify subpoenas; and (5) enforcing 
compliance with a subpoena.
    Only two comments were received. A national veterans' service 
organization stated that it concurred in the proposed amendments. A 
representative of a group of attorneys engaged in the practice of 
veterans' law posed several objections.
    The primary objection of this writer, occupying approximately half 
of his comments, is grounded in the misconception that these amendments 
remove authority from local VA offices to issue subpoenas in cases that 
are not before the Board. The Rule never gave that authority, nor do 
the amendments remove it.
    The authority of field facility heads to issue subpoenas in matters 
within their jurisdiction is at 38 CFR 2.1(b). The Board's Rules of 
Practice deal only with procedures in matters that are before the Board 
and within its statutory jurisdiction. The Rule in question appears in 
a section of the Board's Rules entitled ``Hearings on Appeal.'' 
Paragraph (a) of the Rule, which is not being amended, describes who 
may move for a subpoena under the rule as ``the appellant, or his or 
her representative.'' (Emphasis added.) What is to be removed is a now 
obsolete procedure that once permitted VA field facility directors to 
decide motions for subpoenas in Board proceedings held at those 
facilities. Under 38 U.S.C. 7102(a) only members of the Board may make 
determinations on motions in Board proceedings.
    The writer objects to the addition of certain quoted language to 
Rule 711(e) (38 CFR 20.711(e)) and urges that it be stricken. The 
language he quotes is being removed from paragraph (e), not added, as 
the proposed rule-making document explained. Thus this objection is 
also moot.
    Next, the writer objects to language in proposed Rule 711(h) (which 
deals with motions to quash or modify a subpoena), stating that it 
``creates a mechanism for adversarial proceedings regarding the 
modification or attempts by the Agency to `quash' subpoena requests.'' 
He maintains that this would be for the convenience of VA at the 
expense of veterans.
    Motions to quash are not new. The procedure has been available 
through this Rule since 1992. (57 FR 4088, 4122) Permitting motions to 
quash subpoenas is standard practice throughout American jurisprudence. 
Such motions provide a mechanism for resolving disputes between persons 
seeking subpoenas and persons subpoenaed and has nothing to do with 
agency convenience, or the lack of it.
    The amendments in fact aid veterans and their representatives, who 
are usually the persons seeking subpoenas as a means of obtaining 
evidence to present to the Board. The amendments provide a way for them 
to get relief when the person who has evidence makes unreasonable 
demands regarding its release. The proposed rule-making document gives 
the example of unreasonable demands for reimbursement for costs 
involved in honoring a subpoena duces tecum to obtain physical 
evidence, typically documents. The writer further implies that this 
amendment is purposefully designed to impede access to documents held 
by VA. That is simply not the case. VA itself is seldom the subject of 
a subpoena in a Board proceeding because there are other methods for 
readily obtaining VA records. See 38 U.S.C. 5701(b) and 5 U.S.C. 552.
    The proposed rule is adopted without changes.

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This rule will affect VA beneficiaries and will not affect small 
businesses. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is 
exempt from the initial and final regulatory flexibility analyses 
requirement of sections 603 and 604.

List of Subjects in 38 CFR Part 20

    Administrative practice and procedure, Claims, Lawyers, Legal 
services, Veterans.

    Approved: September 20, 2001.
Anthony J. Principi,
Secretary of Veterans Affairs.

    For the reasons set out in the preamble, amend 38 CFR part 20 as 
follows:

PART 20--BOARD OF VETRANS' APPEALS: RULES OF PRACTICE

    1. The authority citation for part 20 continues to read as follows:

    Authority: 38 U.S.C. 501(a).


    2. Section 20.711 is amended by:
    (a) Revising paragraphs (c) and (e);
    (b) Revising the second sentence of paragraph (f);
    (c) Revising the first sentence of paragraph (g);
    (d) Revising paragraph (h); and
    (e) Adding paragraph (i).
    The revisions and addition read as follows:


Sec. 20.711  Rule 711. Subpoenas.

* * * * *

[[Page 49539]]

    (c) Where filed. Motions for a subpoena must be filed with the 
Director of Administrative Service (014), Board of Veterans' Appeals, 
810 Vermont Avenue, NW, Washington, DC 20420.
* * * * *
    (e) Ruling on motion for subpoena.
    (1) To whom assigned. The ruling on the motion will be made by the 
Member or panel of Members to whom the case is assigned. Where the case 
has not been assigned, the Chairman, or the Chairman's designee, will 
assign the case to a Member or panel who will then rule on the motion.
    (2) Procedure. If the motion is denied, the Member(s) ruling on the 
motion will issue an order to that effect which sets forth the reasons 
for the denial and will send copies to the moving party and his or her 
representative, if any. Granting the motion will be signified by 
completion of a VA Form 0714, ``Subpoena,'' if attendance of a witness 
is required, and/or VA Form 0713, ``Subpoena Duces Tecum,'' if 
production of tangible evidence is required. The completed form shall 
be signed by the Member ruling on the motion, or, where applicable, by 
any panel Member on behalf of the panel ruling on the motion, and 
served in accordance with paragraph (g) of this section.
    (f) * * * A subpoena for a witness will not be issued or served 
unless the party on whose behalf the subpoena is issued submits a check 
in an amount equal to the fee for one day's attendance and the mileage 
allowed by law, made payable to the witness, as an attachment to the 
motion for the subpoena. * * *
    (g) * * * The Board will serve the subpoena by certified mail, 
return receipt requested. * * *
    (h) Motion to quash or modify subpoena.
    (1) Filing procedure. Upon written motion of the party securing the 
subpoena, or of the person subpoenaed, the Board may quash or modify 
the subpoena if it is unreasonable and oppressive or for other good 
cause shown. Relief may include, but is not limited to, requiring the 
party who secured the subpoena to advance the reasonable cost of 
producing books, papers, or other tangible evidence. The motion must 
specify the relief sought and the reasons for requesting relief. Such 
motions must be filed at the address specified in paragraph (c) of this 
section within 10 days after mailing of the subpoena or the time 
specified in the subpoena for compliance, whichever is less. The motion 
may be accompanied by such supporting evidence as the moving party may 
choose to submit. It must be accompanied by a declaration showing:
    (i) That a copy of the motion, and any attachments thereto, were 
mailed to the party who secured the subpoena, or the person subpoenaed, 
as applicable;
    (ii) The date of mailing; and
    (iii) The address to which the copy was mailed.
    (2) Response. Not later than 10 days after the date that the motion 
was mailed to the responding party, that party may file a response to 
the motion at the address specified in paragraph (c) of this section. 
The response may be accompanied by such supporting evidence as the 
responding party may choose to submit. It must be accompanied by a 
declaration showing:
    (i) That a copy of the response, and any attachments thereto, were 
mailed to the moving party;
    (ii) The date of mailing; and
    (iii) The address to which the copy was mailed. If the subpoena 
involves testimony or the production of tangible evidence at a hearing 
before the Board and less than 30 days remain before the scheduled 
hearing date at the time the response is received by the Board, the 
Board may reschedule the hearing to permit disposition of the motion.
    (3) Ruling on the motion. The Member or panel to whom the case is 
assigned will issue an order disposing of the motion. Such order shall 
set forth the reasons for which a motion is either granted or denied. 
The order will be mailed to all parties to the motion. Where 
applicable, an order quashing a subpoena will require refund of any sum 
advanced for fees and mileage.
    (i) Disobedience. In case of disobedience to a subpoena issued by 
the Board, the Board will take such steps as may be necessary to invoke 
the aid of the appropriate district court of the United States in 
requiring the attendance of the witness and/or the production of the 
tangible evidence subpoenaed. A failure to obey the order of such a 
court may be punished by the court as a contempt thereof.

(Authority: 38 U.S.C. 5711, 5713, 7102(a))

[FR Doc. 01-24304 Filed 9-27-01; 8:45 am]
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