November 18, 2019
U.S. Court of Appeals for Veterans Claims: A Brief Introduction
The U.S. Court of Appeals for Veterans Claims (CAVC)
permanently authorized; two additional seats are authorized
provides the exclusive forum for veterans and other
under a temporary expansion that will expire in 2021.
claimants, such as veterans’ surviving spouses, to appeal
Judges are nominated by the President and confirmed by
U.S. Department of Veterans Affairs (VA) decisions
the Senate for a fixed term of fifteen years, though judges
denying various veterans’ benefits. This In Focus describes
may be reappointed. Of the nine current active judges, five
the CAVC’s creation, jurisdiction, authority, and
are veterans. Before the expiration of his or her term, a
procedures before identifying several issues that may
judge can be removed by the President only for misconduct,
interest the 116th Congress.
neglect of duty, engaging in the practice of law, or residing
more than fifty miles outside the Washington, DC, area.
Creation
Using its authority under Article I of the U.S. Constitution,
Besides the nine active judges, the CAVC uses retired
Congress established the CAVC, then called the U.S. Court
judges in recall status to hear cases. The chief judge may
of Veterans Appeals, in 1988 through the Veterans’ Judicial
recall a retired judge for service when necessary to meet the
Review Act (Pub. L. No. 100-687). (For more information
CAVC’s needs. There are now eight recall-eligible retired
on Article I courts, see CRS Report R43746, Congressional
judges; two are serving in recall status.
Power to Create Federal Courts: A Legal Overview, by
Andrew Nolan and Richard M. Thompson II.) The Veterans
Court Proceedings
Programs Enhancement Act of 1998 (Pub. L. No. 105-368)
Proceedings before the CAVC are adversarial. Appellants
gave the CAVC its current name. The statutes governing
and petitioners may represent themselves or be represented.
the CAVC are in chapter 72 of title 38 of the U.S. Code.
Both attorneys and nonattorneys who meet certain
Jurisdiction and Authority
requirements may be admitted to practice before the
CAVC. The appellee or respondent in all cases is the
The CAVC has exclusive jurisdiction to hear appeals of
Secretary of Veterans Affairs, who is represented by
decisions from the Board of Veterans’ Appeals (BVA),
attorneys from the VA Office of General Counsel.
VA’s top-level administrative tribunal. These decisions
concern entitlement to various types of VA benefits,
The CAVC generally sits in Washington, DC, but has
including disability compensation, pensions, education
authority to sit anywhere in the United States. Several times
benefits, and survivor benefits. The CAVC also has the
per year, the CAVC holds oral arguments at law schools
authority under the All Writs Act, 28 U.S.C. § 1651, to
and federal courthouses throughout the country.
issue writs—special types of court orders—in aid of its
jurisdiction. Under this authority, the CAVC can compel
Appeals
VA to take any action (such as issuing a decision or
Only individuals adversely affected by a BVA decision may
providing a medical examination) “unlawfully withheld or
file an appeal to the CAVC—the government may not do
unreasonably delayed,” if that action relates to a claim that
so. The CAVC reviews the BVA’s legal conclusions de
could ultimately be appealed to the CAVC. In addition, the
novo (without deference to the BVA’s determinations) but
CAVC can award attorney fees under the Equal Access to
reviews the BVA’s findings of fact for clear error.
Justice Act (EAJA) (Pub. L. No. 96-481) for successfully
challenging BVA decisions.
According to the CAVC’s annual report for FY2018, more
than two-thirds of appeals are resolved through a mediation
In Monk v. Shulkin, 855 F.3d 1312 (Fed. Cir. 2017), the
process run by the CAVC’s central legal staff without being
U.S. Court of Appeals for the Federal Circuit (Federal
assigned to a judge. In such cases, the parties agree to end
Circuit) held that the CAVC has authority to hear class
the appeal or remand the case to VA for more proceedings.
action cases because of authority granted by the All Writs
Act and the CAVC’s ability to establish its own rules and
If an appeal is assigned to a judge, the judge may decide the
procedures. Since Monk, the CAVC has certified several
case on the briefs or refer the case to a panel of three active
classes in cases arising out of petitions for writs of
judges for a precedential decision, with or without oral
mandamus. It is also considering motions to certify classes
argument. Once a single-judge or panel decision is written,
in cases arising out of appeals of BVA decisions.
it is circulated to all other active judges for review. At this
point, a single-judge decision may be sent to a three-judge
Judges
panel if two judges vote to do so, or a single-judge or panel
The CAVC consists of nine judges, including a chief judge
decision may be reheard en banc (i.e., by all active judges)
who serves on a rotating basis. Seven judgeships are
if a majority of judges vote to do so. After the CAVC issues
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U.S. Court of Appeals for Veterans Claims: A Brief Introduction
a decision, a party can move for reconsideration, panel
decision issued by three judges. Cases of exceptional
review, or en banc review.
importance or that require the CAVC to overturn a previous
decision are decided by the en banc court. Panel and en
Petitions for Extraordinary Writs
banc decisions are generally precedential and bind both the
Individuals who have claims pending before VA and assert
CAVC and VA in all future cases. According to the
that the agency has unlawfully withheld or unreasonably
CAVC’s annual report, fewer than 1% of the CAVC’s cases
delayed an action (such as failing to issue a timely decision
lead to panel or en banc decisions.
or help a claimant obtain evidence) may petition the CAVC
for an extraordinary writ compelling VA to act. Petitions do
Appeals
not go through the CAVC’s mediation process and are
The Federal Circuit has exclusive jurisdiction to review
instead assigned directly to an active judge. Once assigned
CAVC decisions. Any party, including the government,
to a judge, a petition follows the same process as an appeal.
may appeal a CAVC decision to the Federal Circuit. The
Federal Circuit’s review is generally limited to legal
Applications for EAJA Fees
questions, and it cannot review the CAVC’s factual
An appellant may receive a payment from the government
findings or application of a law to the facts of a particular
for reasonable attorney fees and litigation expenses if the
case unless the case presents a constitutional issue.
appellant (1) is a prevailing party, (2) can show that VA’s
position was not “substantially justified,” and (3) meets
Recent Caseload Statistics
certain other requirements. (For more information on EAJA
According to its annual report, in FY2018, the CAVC
fees, see CRS In Focus IF11246, Attorney’s Fees and the
received 6,802 appeals—a 66% jump from FY2017—along
Equal Access to Justice Act: Legal Framework, by Joanna
with 265 petitions and 3,663 EAJA applications. This
R. Lampe.) Almost all attorneys appearing before the
increase was due to a larger number of decisions issued by
CAVC represent their clients pro bono with a stipulation
the BVA (according to the BVA’s website and FY2018
that the attorney will receive any EAJA fees awarded.
annual report, after issuing 52,661 decisions in FY2017, the
Use of Technology
BVA issued 85,280 in FY2018 and 95,286 in FY2019).
Since 2008, the CAVC has required all represented parties
During FY2018, the CAVC issued 8,361 decisions in 4,842
to file all case materials electronically through the court’s
appeals, 222 petitions, and 3,297 EAJA applications. The
case management and electronic case files (CM/ECF)
court affirmed in around 8% of appeals, reversed or
system. Unrepresented parties may submit materials
remanded in 40% of appeals, and dismissed 11% of
through CM/ECF, by email, or by mail. Unique among the
appeals. The remaining 41% of appeals led to mixed
federal courts, the CAVC does not charge the public to
outcomes. The CAVC issued 47 panel decisions in FY2018.
access materials on its docket.
Issues for the 116th Congress
In April 2019, the CAVC began livestreaming its oral
Class Action Jurisdiction
arguments on YouTube. Links to videos and audio files of
past arguments are available on the CAVC’s website
Because the CAVC’s class action authority is in its infancy,
:
http://www.uscourts.cavc.gov/oral_arguments.php.
Congress may wish to address the scope of that authority.
This could include setting forth specific procedures or
Types of Decisions
expressly allowing or prohibiting class actions arising out
The CAVC resolves cases through decisions issued by the
of certain types of cases (e.g., petitions or appeals).
clerk of the court, an individual judge, or a panel of judges.
Pending Nominations and CAVC Expansion
When the parties file a joint motion to remand a case or end
To keep pace with its increasing case load, the CAVC will
an appeal, the clerk will issue a clerk’s order granting the
likely need to maintain, if not expand, the number of judges
motion and resolving the case. The clerk also grants
in active service. Two of the CAVC’s judges reach the end
unopposed motions for EAJA fees. According to the
of their terms in December, and the President has sent two
CAVC’s annual report, nearly 80% of the CAVC’s cases
nominees to the Senate to fill these vacancies.
are resolved by clerk’s orders.
Looking past 2019, the CAVC’s temporary authorization
CAVC judges have statutory authority under 38 U.S.C.
for nine judges expires in 2021. Although the expiration
§ 7267(b) to issue single-judge decisions. These decisions
will not affect any judges appointed before that date, it
take two forms: orders that resolve petitions and motions to
would prevent the appointment of more than seven judges
dismiss an appeal; and memorandum decisions that decide
when new vacancies arise. If Congress wants to address this
appeals on the merits. Single-judge decisions are not
issue, it could consider extending the authorization, making
precedential (i.e., not binding in future CAVC or VA cases)
it permanent, or authorizing more than nine judges.
and, according to the CAVC’s annual report, account for
Jonathan M. Gaffney, Legislative Attorney
roughly 20% of the CAVC’s decisions.
IF11365
Cases that present a new issue of law or require the CAVC
to modify an existing rule are generally decided by a panel
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U.S. Court of Appeals for Veterans Claims: A Brief Introduction


Disclaimer
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