Chief Judge Robert N. Davis[†]
I’m going to ask you to join me in a walk through the past, present, and a step into the future of the United States Court of Appeals for Veterans Claims, and when we get to the future I’m going to challenge you to make a system that is terribly flawed right now a better one for veterans processing claims.
But as I begin in our step to the past, I want to observe a couple of things. First of all, I always look at veterans law as the intersection of law, medicine, and war. And indeed, it’s a fairly obvious intersection, because the history of veterans law is the history of our country. Even back in the colonies, in the 1600s, the Plymouth colony paid soldiers who fought and protected the colonists from Native Americans during conflict. In every major conflict, and in even minor conflicts, there have been developments in veterans legislation.
The other thing that’s important to keep in mind as an overarching principle is there is a fundamental commitment in the soul and fabric of this country to help care for veterans and their families. It doesn’t have to be that way. And it hasn’t always been as expansive as it has currently become. There have been times in our nation’s history when those benefits were significantly less than they are now. There have been times when there have been restrictions placed on eligibility requirements for benefits. But throughout, there has been a common theme of care for the veterans and an understanding that care should be given because veterans have put their lives on the line for the country.
The Past
I’m not going to go back all the way to the beginning, but I would like to start in 1924 or 1933 or so and talk a little bit about the landscape then. Our legal landscape regarding care for veterans has evolved from the early days, and it needs to change significantly to deliver the services that will be needed in the future.
Around 1932, 1933, there was the Bonus Army. Basically, a lot of World War I veterans were returning home and they had been given bonus certificates for pay.[3] Several years later, they ended up marching at the Washington Mall area. Thousands of these veterans came to the Washington Mall because the Great Depression was just about settling in, and they needed resources because some of these bonus certificates, which were issued in 1924, didn’t mature until 1945. There were a lot of scandals in graft and fraud associated with the certificates, with claims agents buying them and selling them. After a while, the veterans wanted to get immediate payment, so they marched on Washington to demand to collect. Thousands of those veterans ended up on the Mall. The police initially tried to remove the demonstrators, but the situation turned violent and several demonstrators were shot, so the president sent in the army to remove them. They were removed. Many returned home. Others stayed on.
This was a very early example, in 1933, of some of the tension that veterans felt in terms of being paid after having served the country. The Economy Act[4] ultimately had a section—Section 5—that prohibited judicial review of veterans’ claims. The Economy Act was part of the New Deal legislation to help fund some of the government programs that President Roosevelt was proposing. But the veterans and their status in the country were perhaps not appreciated as much as the veterans thought they should be. They wanted to be able to litigate pension determinations. But the Economy Act did not want veterans to go outside of the bureaus that were administering pensions and benefits for veterans, because it would be cheaper. So that Act expressly said no judicial review, and that what happens at the Board of Veterans’ Appeals stays at the Board of Veterans’ Appeals.
So we go on. In the 1950s, a commission headed by General Omar Bradley—who had been Eisenhower’s chief of staff in the Second World War—did a study on a lot of veterans’ benefits and programs and also concluded that it would be better for the veterans’ benefits to stay administered in the veterans bureaus, which ultimately became the Veterans Administration (V.A.).[5]
What I would like to do now is focus a little bit on the legislative years that led up to the passage of the Veterans Judicial Review Act of 1988.[6] That is when judicial review was introduced.
But it’s a very interesting story about the ten years preceding the legislation and in particular the thirty days between September 20 and October 20 of 1988. But let me go back just a bit to the ‘70s. Veterans, of course, are not a monolithic entity. Every veteran from every war is different. The wars are different. Our wars today are different than they were in 1945. So the World War II veterans are different than the Vietnam veterans. Enough cannot be said about the Vietnam veterans in this story. In the ‘70s the Disabled American Veterans group was not a supporter of the proposed legislation. Indeed, the veteran service organizations, not just the D.A.V., but the American Legion and the Veterans of Foreign Wars were not very supportive of judicial review, because they thought the Veterans Administration was doing okay generally.
But as the numbers of veterans coming back to the country grew, there were more and more demands on the government for benefits. Vietnam was one of those times where a lot of demobilized veterans came back to the country, just like in World War II, just like in World War I. But as everyone knows, and some of us lived through, the Vietnam veterans were not welcomed back home. It was really the Vietnam veterans that provided the catalyst, I think, for judicial review. By this time there were a lot of problems in the V.A., as well. Veterans were more and more beginning to seek review in district courts. There were horror stories about veterans waiting for years and years to get benefits and having to do all kinds of things to survive.
In the ‘70s when the Vietnam veterans began to return, the Vietnam veterans and the other veterans did not really see eye to eye on many things. There were tensions between those veterans. Remember my point: the veterans are different. The World War II veterans and the Vietnam veterans didn’t see eye to eye. Congress, in particular the 96th, the 97th, 98th, and 99th congresses all had entertained judicial review because of some of the problems being experienced in the Administration. The Senate, in particular the Senate Veterans’ Affairs Committee, was interested in judicial review and had passed legislation every year to develop judicial review.
The latest such bill, Senate Bill 211 in the 100th Congress, had judicial review going into an Article III court. During the 1988 legislative process, there was an Article III judge who talked to the committee about judicial review and which forum would be appropriate for it, Article I or Article III. That judge happened to be a federal circuit judge, Judge Stephen Breyer, who ultimately became a Supreme Court justice. He said to the committee that you don’t want to put judicial review of veterans’ claims in the Article III courts. Why? Well, because if judges know that an agency has responsibility for a particular area, they’re not going to try to second-guess that agency. It’s better to put this process in an Article I court where the Article I court would develop a specialty and expertise. That was Justice Breyer’s statement to the committee.
That was in 1988 or so. But for every Congress from the 96th to the 100th, in fact, the Senate Veterans’ Affairs Committee had made an effort to move judicial review into the legal landscape for veterans. It was unsuccessful. Bill Brew, who was the staff director of the Veterans’ Affairs Committee on the Senate side, talks about this, and his point was that they were ready on the Senate side but the House was not. So every time there would be a conference with the House, judicial review would come up and the House would say “not yet.” This happened year after year for ten years. Finally, and this is where the Vietnam veterans come in, because the Vietnam veterans, like all veterans, are not just veterans. We’re citizens. We vote. We have political influence. That’s another part of the history of this area. Veterans were recognized early on as having political influence, even during the Civil War. Veterans in general had power on the Hill and the Vietnam veterans in particular began to march in a different path. They weren’t happy. They broke away from the traditional veterans service organizations and called for better treatment by the V.A.
The way the Veterans Judicial Review Act got passed is very interesting. There was a veteran on the staff with Senator Gary Hart from Colorado. Gary Hart wanted to get the legislation through at the time when the Vietnam G.I. Bill was being considered, around 1975. And Senator Alan Cranston, Congressman Don Edwards, Congressman Sonny Montgomery, but in particular Senator Vance Hartke from Indiana, who was the chair at the time, told Senator Hart not to muddle the G.I. Bill with this judicial review stuff, because that would just delay what they were trying to accomplish at that time. So they didn’t. But Senator Hartke promised Senator Hart that he would reconsider this legislation in the next Congress. Senator Hartke promptly returned to Indiana and lost his re-election bid in 1976. So when Senator Hart came back to Congress, he had a check he couldn’t cash with Senator Hartke. Senator Cranston was there, and Senator Cranston honored the commitment to hold hearings on the judicial review bill.
As Bill Brew tells this story, hearings were held and again the Senate came up with judicial review under Article III. And unbeknownst to him, now in 1988, Senator Montgomery from Mississippi indicated he wanted to develop a judicial review bill because he had heard a lot of complaints about how things were going at the Veterans Administration. So the House was working on something probably beginning back in May of ‘88. What the House was working on was a bill that would do away with the Board of Veterans’ Appeals and create a sixty-five-member Veterans Court, an Article I court.
Bill Brew got a call from Senator Cranston and said “I hear Sonny’s working on something over there. Let’s work with him.” Bill Brew, having looked at the proposed legislation, said that would be impossible. He thought there was no way the Senate was going to pass the bill, which would, number one, do away with the Board of Veterans Appeals, and number two, put a sixty-five-member court in Article I. That just wasn’t going to happen. Bill was prepared to simply sit back and do what they had done in the past. And that is not go anywhere. Senator Cranston told Bill to work it out with Congressman Montgomery. To negotiate. Bill Brew thought they were much too far along to negotiate. But Senator Cranston said negotiate.
There is a Latin phrase sine die. It means “the last day” of a legislative period, when Congress adjourns. It changes every year on the Hill, but in 1988 it was October 20th. Bill Brew got this call in September. So for thirty days, negotiations were going back and forth between the Senate side and the House side, and it was those thirty days that it took to develop the legislation that ultimately became the Veterans Judicial Review Act of 1988. There was, from the Senate side, not much controversy over placement of the court, in Article I or Article III. They were okay with Article III review if the House wanted to do Article III.
The problem was in getting rid of the Board of Veterans’ Appeals. That couldn’t happen. And nobody really wanted a sixty-five-member Article I court either, so that couldn’t happen. So, there were some compromises that were made, and ultimately the compromises rested in creating this unique Article I federal appellate court. So that was 1988, October. November 16th, 1988, President Reagan signed into law the Veterans Judicial Review Act, which also helped to realign the Veterans Administration. That became a Cabinet-level department, because, again, the veterans were saying: “Listen, we need a voice. We have a lot of members, and we vote.” So the veterans and their influence helped to put the V.A. into a Cabinet-level status so that there was someone who reported directly to the president on veterans’ issues. It took a year for the court to ultimately get up and running.
There are a lot of details I’m leaving out, but that’s a brief highlight of the history of the creation of this court.
The Present
Now let me step up to the present day and talk a little bit about the court. The court is a very unique federal court in comparison to any federal court in the country. First of all, this court has single-judge authority. Most federal appeals courts decide cases in panels, panels of three, panels of five, nine. This court does, too. But most of the work happens in single judge cases. The court has a tremendous caseload. This year we passed the 7,000 case mark coming into the court. So the court is unique in terms of the numbers of cases it decides, and I think that’s why Congress decided to give the court single-judge authority. At the time the Veterans Judicial Review Act was passed the General Counsel of the Veterans Administration said that we can anticipate about 5,000 cases a year. It was probably ten to fifteen years before we hit the 5,000 mark. In 1989 there were 182 cases on the court’s docket. A year later there were about a thousand. Ten years later we’re near 3,000. Another ten years, 4,000, and just this year, 7,000.
The court does have panel authority as well. We decide cases in panels of three and sometimes en banc. There are nine judges on the court. We are authorized for seven positions, but we have temporary approval for nine also to handle the caseload. We hope to make that authorization permanent. So the court’s unique there, in terms of the numbers of judges that can and do decide cases.
The court is also unique in terms of its statutory authority in Section 7261. The court hears final decisions from the Board of Veterans’ Appeals. It has exclusive authority to do that. There’s no other court that can take that jurisdiction. This is the expert court for veterans’ benefits issues, and it is placed in a unique position in the federal review structure. The Department of Veterans Affairs does the fact finding and issues rating decisions for disabled veterans. Veterans, if they’re not happy with those decisions, appeal to the Board of Veterans’ Appeals, and after that is where we get involved. Above us—the U.S. Court of Appeals for Veterans Claims—is the U.S. Court of Appeals for the Federal Circuit, which has limited review authority to review issues of law and regulations. And beyond that is the Supreme Court.
So, a very unique court in many respects. And we are now fully staffed, we have nine judges. Two years ago I wrote a letter to the president-elect to say we had four vacancies at the court, to please put it on his radar. I didn’t like the prospect of having only four judges when we needed a full court given the cases that were coming in. And much to my surprise, I got communication back from the White House within a month indicating that they were going to move forward on getting nominations through. Within a year, we had three additional judges on the bench. Within about six months of their announcement they were confirmed and seated and sworn in.
We’re doing a lot of things at the court. A lot of firsts are going on. We’re in the process of developing live video streaming that will allow the broadcast of all of our oral arguments. Recently, we’ve had several oral arguments in our outreach program around the country: one in Washington at NOVA Conference—the National Organization of Veterans’ Advocates—where about 400 people were in attendance. Very exciting times from my standpoint.
Because of the rising caseload and because of our new shift to doing more panel cases, and most significantly because of our authority to hear class actions now, the court is grappling with new ways of doing business. How do we efficiently decide 7,000 cases and do more panel decisions? Panel decisions take longer. Our single judge decisions are out in about three months once the cases are in chambers. Our panel decisions usually go out in about six months. There is no backlog at the court at the moment. But because we’re doing more panels now, it’s going to take a little bit more time to get those panel decisions out.
In addition to that, we’re working on class action cases. We have to learn how to do business a little smarter, a little more efficiently. Some of our committees are working on some of those tasks to help us do that.
So that’s where we are currently. It’s a great place. We’re doing good things. We have no backlog. We’re getting cases decided. But there is a paradigm shift about to happen, and we’re in the middle of it. How do we efficiently decide 7,000 cases? This is the result of the Board of Veterans’ Appeals deciding 85,000 cases this year. Last year, they decided 52,000 cases. Huge jump. So we will be impacted by that. Next year, their goal is about 100,000 cases. And deciding that many cases with a lot of pressure on the administrative law judges means there are going to be a lot of errors and a lot of corrections and a lot of remands from our court. But that’s where we’re going.
We’re moving forward and we are grappling with how to efficiently decide with more panels, decide class actions, and deal with an increasing caseload. That’s the present. It’s a challenging place to be, but an exciting place to be. When I joined the court in 2004, there were no veterans law clinics around. There were no veterans law courses around. That was only fourteen years ago. Today, there are more than fifty clinics around the country. Most law schools have a veterans law class. When I started we had fifteen volumes of the Veterans Appeals Reporter. Today, we’re working on our 30th volume. The court is maturing in a way that I think Congress would hope we would be, and the legislators would be happy to see. I think the court has carried out their vision of providing a place where veterans can go to get fair, efficient justice.
The Future
Now, let’s talk about the future. This is where it gets interesting. The system is terribly flawed. Terribly flawed. Any time it takes a veteran years to get a final decision on a claim, something’s broken. We are currently dealing with the Appeals Modernization Act.[7] This is a piece of legislation that the veteran service organizations have worked on over the years. It will become effective in February of 2019, and its goal is to make things a little bit more efficient at the administrative level in processing claims, giving veterans opportunities to make some choices that should help get them quicker decisions. Based on the choices you make, you may decide to present your case to an adjudicator without additional evidence and get a decision based on the record as it exists. You may decide to go to an adjudicator with new evidence, or you may decide to go into a fast track system and let that decision be made immediately. All of that remains to be worked out. We don’t know how it’s going to work. I can tell you what I think: I don’t think it’s going to make that much of a difference in terms of processing.
I also think it probably will end up creating more churn at the administrative level, meaning that the veterans will go back through the administrative process over and over, much like things that they’re going through now. So we will still be faced with a system that doesn’t work very well. Now I should say that the veterans department processes millions of dollars’ worth of claims. A lot of veterans are getting their benefits in a reasonable way. But when you have a 450,000-case backlog, and even when your own statistics tell you you’re not going to make much of a dent in this backlog, something needs to change. In my view, tinkering around the edges isn’t it.
We need to start thinking about the system in a much, much different way. Maybe we need to start thinking about paying veterans a basic pension, period, based upon their disability, and not going through all of this litigation process.
I didn’t talk about the fact that the Department of Veterans Affairs administrative process is supposedly non-adversarial. In many ways, I think they try to be, but that’s not what the Vietnam veterans would tell you when they were pushing for judicial review. And that’s not what a veteran today will tell you about going through the process. Anybody who is a veteran who’s been through it will tell you. Some have had good experiences, but many have not. We need to reverse that inequality.
Let’s go back to 1792, to Hayburn’s Case[8]—the first case involving the Invalid Pension Act. William Hayburn was trying to get a military pension. The law basically said you have to go to the Circuit Courts to get paid. The circuit judges said: “Are you kidding? This is not our job, this is not judicial review. We’re courts. We don’t do administrative stuff that’s not judicially related.” The administrative structure of veterans’ claims has historic underpinnings, and Hayburn’s Case is one of the beginnings of it. Hayburn’s Case was decided before Marbury v. Madison.[9] It’s a precursor to Marbury, which approved judicial review of the constitutionality of acts of Congress. A decision was never issued in Hayburn’s Case, but it did set up a fundamental baseline in which veterans’ benefits were separated from judicial review. That carried forward until 1988.
This area of law has exploded in the time I’ve been on the bench. Again, there were no law school courses in 2004. No clinics. There are so many now, there are so many opportunities in clinics, in pro bono opportunities at law firms, law firms handling veterans’ cases both at the department in some respects and at the Federal Circuit. There are opportunities for internships and externships at the law schools. We have many of those opportunities at the court, and longer term employment opportunities.
But I would challenge you to not continue to tinker with the system. We need to look at a very significant overhaul of how veterans’ claims are processed. I’ve suggested some. Let’s think about waivers. This would pay you money, give you a check, and you would agree to go and invest that money or use it, but not to come back to the Veterans Administration. On certain kinds of injuries, it could work. The other thing that’s interesting today is that these benefits are viewed as entitlements, under the Federal Circuit opinion in Cushman v. Shinseki.[10] Previously, they were viewed as gratuities based on the benevolence of Congress and the nation. That whole concept has evolved as well.
Are veterans a special class of citizens? Does anything involving veterans need to be subject to strict scrutiny? Or are they just like the general population? That was a debate that was had in the early days as well.
But what I’m suggesting is significantly different than the system we operate under today. You know, there is no reason any veteran should have to wait seven, eight, nine, ten years to get a claim paid. Veterans are involved in a very legally complex system. And until recently, they couldn’t even have lawyers to help them through the process. The V.A. does not want lawyers at the administrative level, either. I think we need to be there. As non-adversarial as it is alleged to be, there are many, many problems with decisions coming out of regional offices. And I think lawyers would be helpful.
So, I hope you will join me. Take up the challenge. Let’s think about a way to change. We need to change it, and I think it can only be done through legislation and a groundswell of people who say that this is not satisfactory and we need to do something about it. Do something for the veterans.
One final comment about a current case, Gray v. Wilkie.[11] The Supreme Court has granted certiorari, which means you’re going to hear oral arguments on this case. It involves Brown Water and Blue Water issues. That is, whether or not people who served in Vietnam have presumptive exposure to Agent Orange if they served on the inland waterways and rivers and streams. That’s what we call Brown Water. Blue Water is out in the ocean. This case involves the interpretation of the Administrative Procedures Act, Section 552,[12] and whether or not the policy guidance that the V.A. has put in their M21 manual,[13] that the D.A.V. case[14] recently said was only policy guidance and not substantive regulations, is controlling. The Supreme Court is going to decide, I think, whether or not the M21 provisions are really policy guidance or substantive rules that should comply with the APA framework.
At any rate, I want you to take up this challenge, and it’s not going to be easy. There are a lot of political issues involved. The veterans service organizations are not going to be that receptive to changing the system in the major way I am suggesting. But if we can get legislation done in 30 days that created this very unique court, I think we need to be able to get legislation done that will find a way to take care of our veterans in this country.
Thank you.
Image: “Cherry Blossoms in Washington DC” by Mike Bowler is licensed under CC BY 2.0
[*] Delivered as a speech on November 8, 2018 at Harvard Law School, Cambridge, Mass.
[†] Robert N. Davis is the Chief Judge of the United States Court of Appeals for Veteran Claims. Prior to his appointment by the President of the United States in 2004, Chief Judge Davis was a Professor of Law at Stetson University College of Law in Florida. He is also a decorated Navy veteran.
[3] See World War Adjusted Compensation Act (Bonus Act), 38 U.S.C. § 591 et seq. (1924). This law offered to pay veterans for their service for the first time since the Revolutionary War and was passed over presidential veto. The law paid veterans based on the number of days served.
[4] The Economy Act of 1933, Pub. L. No. 73-2, 48 Stat. 8 (1933).
[5] See President’s Comm’n on Veterans’ Pensions, Veterans’ Benefits in the United States: A Report to the President (1956).
[6] Veterans Judicial Review Act, Pub. L. No. 100-687, 102 Stat. 4105 (1988).
[7] Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat. 1105 (2017).
[8] 2 U.S. 408, 1 L. Ed. 436 (1792).
[9] 5 U.S. 137, 2 L. Ed. 60 (1803).
[10] 576 F.3d 1290 (Fed. Cir. 2009).
[11] 875 F.3d 1102 (Fed. Cir. 2017). The case was set to be argued before the Supreme Court in February, 2019, but was postponed until the October 2019 term.
[12] Administrative Procedure Act, 5 U.S.C. § 552 (2018).
[13] The M21-1 Adjudication Procedures Manual is where the V.A. consolidates its internal policy and procedures. See U.S. Dep’t of Veterans Affairs, M21-1 Adjudication Procedures Manual, https://www.knowva.ebenefits.va.gov/ (select “21-1 Adjudication Procedures Manual” under the “Compensation” tab of the “Topics” menu).
[14] Disabled Am. Veterans v. Sec’y of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017).
Robert N. Davis is the Chief Judge of the United States Court of Appeals for Veteran Claims. Prior to his appointment by the President of the United States in 2004, Chief Judge Davis was a Professor of Law at Stetson University College of Law in Florida. He is also a decorated Navy veteran.