Law Professor Calls Out Court’s Abuse Of Authority

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Benjamin KrauseA new paper by law professor James Ridgway gave a scalding critique of the Court of Appeals for Veterans Claims (CAVC) for its abuse of authority to render excessive numbers of single-judge opinions. Ridgway criticized the CAVC for this abuse because it hinders the development of veterans law and has the effect of withholding justice from veterans.

The paper title (co-authored with Rory Riley and Barton Stichman) title tees up the issue nicely, called “‘Not Reasonably Debatable’: The Problems with Single-Judge Decisions By the Court of Appeals for Veterans Claims”.

DOWNLOAD: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2652013

Here is the abstract:

“The U.S. Court of Appeals for Veterans Claims (CAVC) has statutory authority — unique among the federal appellate courts — to allow individual judges to decide appeals. As the CAVC completes the first quarter century of operations since its creation, this article examines the court’s use of this authority. Based upon two years of data developed and analyzed by the authors, this article concludes that outcome variance in single-judge decisions is a serious problem at the CAVC. Not only is there a substantial difference in the outcomes of appeals assigned to the different judges, but there are clear examples of decisions that violate the court’s precedent against deciding novel issues or debatable cases by a single judge. Based upon the more than 4,000 decisions reviewed, it is recommended that substantial changes must be made in how the court exercises single-judge authority. Alternatively, this authority could be abolished altogether so that the CAVC decides all appeals by panel, as is done by the other federal appellate courts. The near-term goal of reform should be to increase the percentage of the CAVC’s opinions that are published from the current average of under two percent to at least twelve percent (the average for federal courts of appeals). Increasing the number of precedential decisions will not only ensure fairness to all of the veterans appealing to the court, but will also improve the guidance provided to the Department of Veterans Affairs because it would resolve more legal issues and also demonstrate how the court believes the law should be applied to difficult or new fact patterns.”

When it comes to court decisions, only precedential decisions direct the legal remedy available. According to Ridgway, fewer precedential opinions allow judges to make decisions without a full review of the law and can result in errors.

The CAVC makes precedential decisions when it uses the three panel judge model – not the single judge decision model. When compared, CAVC uses the single judge model way more than other courts used by other Americans:

In fiscal years 2013 and 2014, the CAVC issued published opinions in only 1.8% of the cases decided by chambers (75 of 4,221). By comparison, in fiscal year 2014, the federal geographic courts of appeals handled 12% of judgments by publish opinion. Although there was some variance, no court published less than 6% of its decisions.

By comparison, CAVC does not rise up to the same standard as federal appeals courts for regular Americans. So, why do veterans get less justice than regular Americans?

What is the effect on veterans?

According to veterans rights attorney Robert Walsh, veterans get shortchanged by this abuse of discretion, “Single judge panels are ‘Dollar Store’ discount justice for our veterans.”

[easy-tweet tweet=”Veterans deserve more than ‘dollar store’ justice on the cheap!” hashtags=”cavc, veteranscourt, vaclaims”]

Walsh says veterans deserve a more than a fair shake when seeking benefits. And I agree with him. When it comes to court remedy following abuses by any Regional Office, veterans should get more than “discount justice” or at least something on par with other Federal courts.

The counter argument in favor of single judge decisions is that it creates greater economic value by spreading out judges. However, the question is, who is benefiting from this economic value? Is it VA? It certainly is not the veteran for whom CAVC was created.

This argument resembles the main issue with VA. More and more, VA seems to exist solely for the benefit of its employees and researchers. Case in point are recent statements from VHA chief Dr. David Shulkin who said he will be “very focused on telling good things of VA” because “nobody’s been doing it.” Really?

RELATED: Does New VHA Head Have Antisocial Personality Disorder?

Walsh, like Ridgway, believe it is time for CAVC to get on the bandwagon with providing veterans equal access to justice just like other Americans. Walsh concluded his comments to me by stating, “The single judge authority has been abused.  It should be greatly curtailed.  In a more perfect world it would be abolished.”

Who would not agree?

If CAVC continues to abuse its authority, should veterans be allowed to seek justice elsewhere? What about in Federal district courts?

If you’d like to support pro-veteran policies, take a look at the article. The more interest veterans show in the policies affecting us, the more our government will consider fixing its inconsistencies that harm us.

<< Plus, downloading the journal article shows people that Americans are interested in veterans justice. >>

Get on it!!

DOWNLOAD: ‘Not Reasonably Debatable’: The Problems with Single-Judge Decisions By the Court of Appeals for Veterans Claims

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14 Comments

  1. What a shame. I was in the fight, for veterans and their benefits, when the Court was established and saw years of frustrations being washed away.

    Years for me and generations for my Comrades

  2. So, What’s new? Same old B/S from VA. All they want to do is protect their employees and bank accounts.

    There’s been so many negative reports coming out in the past few years. Ex: Abysmal medical care. Wait times still abhorrent for veterans. Debilitating disease’s killing veterans at hospitals. Yet not one VA employee was infected. Acts of fraud being committed against veterans in their medical files. There’s so much more. It’s really hard to keep up with the negativity….

    Dr. Shulkin has stated he wanted to say something “GOOD” about VA! Well, if he doesn’t get his people in line, I don’t see that happening any time soon….

    Veterans always get shortchanged by VA. The “board of appeals needs to be restructured.

    _______________________________________________________________________________________

    BREAKING NEWS on WFTV Channel 27 Orlando, Fl., 8 Sept. 2015 @ 7:50 am est.
    A “VA is Lying” billboard just went up in Orlando on Golden Rod Rd. A former marine said the Orlando VA is lying about the wait time he has had to endure.

  3. Reading through the entire paper, it is apparant the claims process, all the way from the initial rater to CAVC, becomes “a luck of the draw.”

    Obviously, the CAVC needs to be reformed by just understanding the statistical analysis of claim decisions by these judges. Where one judge favors the veteran in the decision 29% of the time and another 59%, contrary to the report, I believe personal prejudices are a factor.

    An example put forth on how the different judges rule was based on a mental health (MH) rating of 70% due to suicidal ideation. There are perhaps thousands of PTSD claims which are rated at 70% or 100% where the veteran does not have suicidal or homicidal ideation. Anyone who has delved into the criteria of MH ratings, knows you do not have to have all the symptoms of a particular rating to be rated at that percentage. Also, you may have just one or two of more severe symptoms and still be rated at a lower percentage. The basis for a MH rating is primarily contingent upon occupational and social impairment.

    However, in helping veterans with MH claims, I have seen different Regional Offices use that criterion differently in granting a rating. Since there is no consistency from one RO to another, how can we expect there be consistency from one judge to another?

    I believe there would be a great benefit of having a panel of judges establish the interpretation and guidance of the various parts of 38 CFR when cases reach the CAVC. Therefore, congress must act, change the law to eliminate the one judge appeal decision and provide the necessary funding. Maybe then veterans wouldn’t feel like they are walking up to a craps table when they file a claim.

    • DAN F,
      I agree. The problem I see is People are different. What one sees as right, another sees as wrong. I believe this is the problem. On the other hand, I believe judges are supposed to follow the law and not individually interpret it.
      This could be the reason veterans are receiving different amounts of compensations. Even when the “single panel judge” is interpreting veterans claims. for example, a judge may not like the way a vet looks when the vet comes before him/her. This also could be a reason for an attorney to call for bias against the judge. At which time, the claim goes back into the “Appeals Process”.
      no matter what, it appears to me, the longer a claim stays in the appeals process, this is what the VA wants….

      I hope I explained it correctly.

  4. The same old behind doors justice, for what? To keep run away costs down for poorly planned wars for vendors benefits only.

    Let’s start taking Bush and Cheney’s family wealth for starters: for starting needless wars to profit their family business. That would be a couple of billion dollars to get things rolling.

    Then back it up with the corporations who profited from this illegal politics: Shell, Haliburton, … There’s another couple of billion dollars.

    Hey, real justice is pretty easy! Old snaggle-toothed Cheney, too cheap to spend his billion dollars on dental care because he wants to look like the devil himself, would self ignite if someone claimed his billions commission for just fines for robbing America.

  5. This story was on the local fox news station (fox59). It is about the Indiana Department of Veterans’ Affairs and how bad they are on helping veterans who are returning home.
    It was noted that a survey don in 2014 shows that Indiana rates as one of the lowest in funding for veterans at $3.67 per veteran. That is all they put forth for veterans in helping them when they return home. Other states were higher and yet they had less veterans.
    Another reason Indiana is not for its’ veterans.

    put an “h” in front of the “ttp”
    ttp://fox59.com/2015/09/08/study-shows-indiana-could-improve-funding-for-hoosier-veterans/

    f8f

  6. Being in the so called judicial system as a disabled injured worker, it appears that the courts now use 1 man judges that are rubber stamped by another 1 man judge in an upper court, all the way to the federal appellate court and other judicial venues like comp/ssa/state/federal courts. I could not afford a Ceratori to the SCOTUS crowd. so there goes cases for several discriminations. It also appears that this occurs in many other judicial venues, family and other courts. Our rights have been eroded at all levels of the courts to an always 1 man judge, No trials allowed for American citizens.NEVER a trial for INDIVIDUALS.
    Only corporations get their day in court AND THEY CAN AFFORD lawyers which is a corporate lawyer’s dream job and after all corporations ARE citizens for starters. Our rights as citizens have been violated for several decades, THERE IS NO JUSTICE FOR ANY AMERICAN , disabled vet or not.
    All because every level of gov’t is rigged for people who own corporations like the Bushes and the Cheney’s among some..Been there , done that. like so many other Americans who have tried to get justice in this country, called America. Americans need to open up their eyes to the profound injustice of our American vets.

  7. Before we come down too hard on the CAVC we probably should check out the Professor’s work credentials’. He is a professorial lecturer in law at George Washington Law School whose day job is the Chief Counsel for Policy and Procedures at the Board of Veterans Appeals (the Board); but this is not mentioned. So it is the Board or the GW Ridgeway that is giving a scalding critique of the CAVC’s use of too many single judge cases; and as such the Court is withholding justice from veterans; not the VA. Hopefully, this report is not part of the 25 million dollar propaganda campaign we been hearing so much about.

    And, then he was senior law clerk for nearly eight years for Judge Alan Lance of the CAVC. In my case Judge Lance has remanded two Board orders in the past four years.
    The court proceedings have exposed the fact that the VA has no statutory authority to garnish disabled retirees waived retired pay to make alimony payments. Therefore, the purported VA merits consist totally of the VA GC’s interpretations, propositions and legal positions; rather then the strict legal rights of the parties..

    Also, divorced disabled retirees’ are denied due process under the VA adjudication process. The VA GC’s VAOPGCPREC 4-97 precedence opinion limits the Board’s jurisdictional authority; which prevents it from reviewing the VA Regional Offices (RO) garnishment abuses. As a direct result, it allows the RO to control the federal garnishment proceedings with no statutory oversight within the system itself. Appellate review now takes place in the state courts, such as it is, and assuming all veterans can afford it. It should be noted, the Court took the Board to the “woodshed” so to speak over the “due process” issue; especially in its second remand order.

    What is Professor Ridgeway doing about these issues? Needless to say the VA is not happy about this at all. To this extent, it has been almost three years since the second remand order and it is still at the RO being worked on. From all indications the VA is not going to resolve these issues unless they are forced to act by a higher authority then the CAVC and me acting pro se for 23 years.

    And finally, I have prepared a brief based on the Board’s actions in my case and the CAVC remand orders in response to them for Representative Miller and Senator Isakson. I will be more then happy to send a copy to Mr. Krause if he wanted to print the other side of the story. I will need a mailing address he decides to this.

  8. Reference my remarks last PM on this same subject.

    Not to beat a dead horse Mr. Krause, but I was skimming through Mr. Ridgeway’s report again this morning as the Chief Counsel for Policy and Procedures at the Board of Veterans Appeals (the Board) and not as a professorial lecturer. Please correct me if I am wrong but I saw no mention of the fact that the only way an appeal can be accepted by the Court is after the Board has failed to do its job. In other words, there would not be so many single-judge opinions if his organization was doing its job properly. The appeals would not be reviewed by the Court if they were determined to be frivolous at the outset of the proceedings. Also, I didn’t see any mention of how many of the orders were remanded to the Board for further proceedings.

    Whereby, if these observations are indeed true as I think they are then looking back on graduate research 901 I would suggest that the source data use in his report maybe was slanted just a little bit to support the overall conclusion. Accordingly, I think it would interesting to see how this study was funded and by whom. Also, Senators Sheehan and Ayotte have sent a letter to the Secretary requesting he have an independent investigation of the Board’s operations based on their findings. Of course, this is just my opinion based on a gut feeling and nothing else. In the final analyses Mr. Ridgeway could be just enhancing his resume to become the next VA General Counsel and nothing else.

    Therefore, I have a suggestion to proffer. Let me send you a copy of my report; you review it and see if I should send it to Mr. Ridgeway in his day job. Since he was quick to determine the CAVC was denying justice to veterans I would very much like to get his remarks about Judge Lance’s holding about the Board actions and/or non-actions in my case. Also, I would like to ask him why they have not responded to Judge Lance’s last remand order after almost three years. This flies directly into the face of 38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for “expeditious treatment” of claims remanded by Board or Court).

Comments are closed.