U.S. Court of Appeals for Veterans Claims: A Brief Introduction

U.S. Court of Appeals for Veterans Claims: A Brief Introduction

Updated April 22, 2021
U.S. Court of Appeals for Veterans Claims: A Brief Introduction
The U.S. Court of Appeals for Veterans Claims (CAVC)
Judges
provides the exclusive forum for veterans and other
The CAVC consists of nine judges, including a chief judge
claimants, such as veterans’ surviving spouses, to appeal
who serves on a rotating basis. Seven judgeships are
U.S. Department of Veterans Affairs (VA) decisions
permanently authorized; two additional seats are authorized
denying various veterans’ benefits. This In Focus describes
under a temporary expansion that will expire in 2026.
the CAVC’s creation, jurisdiction, authority, and
Judges are nominated by the President and confirmed by
procedures before identifying several issues that may
the Senate for a fixed term of 15 years, though judges may
interest the 117th Congress.
be reappointed. Of the nine current active judges, six are
veterans. Before the expiration of his or her term, a judge
Creation
can be removed by the President only for misconduct,
Using its authority under Article I of the U.S. Constitution,
neglect of duty, engaging in the practice of law, or residing
Congress established the CAVC (then called the U.S. Court
more than 50 miles outside the Washington, DC, area.
of Veterans Appeals) in 1988 through the Veterans’ Judicial
Review Act (Pub. L. No. 100-687). (For more information
In addition to the nine active judges, the CAVC uses retired
on Article I courts, see CRS Report R43746, Congressional
judges in recall status to hear cases. The chief judge may
Power to Create Federal Courts: A Legal Overview.) The
recall a retired judge for service when necessary to meet the
Veterans Programs Enhancement Act of 1998 (Pub. L. No.
CAVC’s needs. There are now 10 recall-eligible retired
105-368) gave the CAVC its current name. The statutes
judges; 4 are serving in recall status.
governing the CAVC are in chapter 72 of title 38 of the
U.S. Code.
Court Proceedings
Jurisdiction and Authority
Proceedings before the CAVC are adversarial. Appellants
and petitioners may represent themselves or be represented.
The CAVC has exclusive jurisdiction to hear appeals of
decisions from the Board of Veterans’ Appeals (BVA),
Both attorneys and nonattorneys who meet certain
VA’s top
requirements may be admitted to practice before the
-level administrative tribunal. These decisions
CAVC. The appellee or respondent in all cases is the
concern entitlement to various types of VA benefits,
Secretary of Veterans Affairs, who is represented by
including disability compensation, pensions, education
attorneys from the VA Office of General Counsel.
benefits, and survivor benefits. The CAVC also has the
authority under the All Writs Act, 28 U.S.C. § 1651, to
The CAVC generally sits in Washington, DC, but has
issue writs—special types of court orders—in aid of its
authority to sit anywhere in the United States. Several times
jurisdiction. Under this authority, the CAVC can compel
per year, the CAVC holds oral arguments at law schools
VA to take any action (such as issuing a decision or
and federal courthouses throughout the country.
providing a medical examination) “unlawfully withheld or
unreasonably delayed” if that action relates to a claim that
Appeals
could ultimately be appealed to the CAVC. In addition, the
Only individuals adversely affected by a BVA decision may
CAVC can award attorney fees under the Equal Access to
file an appeal to the CAVC—the government may not do
Justice Act (EAJA) (Pub. L. No. 96-481) for successfully
so. The CAVC reviews the BVA’s legal conclusions de
challenging BVA decisions.
novo (without deference to the BVA’s determinations) but
reviews the BVA’s findings of fact for clear error.
In Monk v. Shulkin, 855 F.3d 1312 (Fed. Cir. 2017), the
U.S. Court of Appeals for the Federal Circuit (Federal
According to the CAVC’s annual report for FY2020, more
Circuit) held that the CAVC has authority to hear class
than two-thirds of appeals were resolved through a
action cases because of authority granted by the All Writs
mediation process run by the CAVC’s central legal staff
Act and the CAVC’s ability to establish its own rules and
without being assigned to a judge. In such cases, the parties
procedures. Since Monk, the CAVC has certified several
agree to end the appeal or remand the case to VA for further
classes and has amended its Rules of Practice and
Procedure to specify class-action procedures in future cases.
proceedings.
For more information about the CAVC’s class action
jurisdiction, see CRS Legal Sidebar LSB10376, An Army of
If an appeal is assigned to a judge, the judge may decide the
Many: Veterans’ Benefits Class Actions in the U.S. Court of
case on the briefs or refer the case to a panel of three active
Appeals for Veterans Claims.
judges for a precedential decision, with or without oral
argument. Once a single judge or panel writes a decision, it
is circulated to all other active judges for review. At this
point, a single-judge decision may be sent to a three-judge
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U.S. Court of Appeals for Veterans Claims: A Brief Introduction
panel if two judges vote to do so, or a single-judge or panel
decision issued by three judges. Cases of exceptional
decision may be reheard en banc (i.e., by all active judges)
importance or that require the CAVC to overturn a previous
if a majority of judges vote to do so. After the CAVC issues
decision are decided by the en banc court. Panel and en
a decision, a party can move for reconsideration, panel
banc decisions are generally precedential and bind both the
review, or en banc review.
CAVC and VA in all future cases. According to the
CAVC’s annual report, less than 1% of the CAVC’s cases
Petitions for Extraordinary Writs
led to panel or en banc decisions.
Individuals who have claims pending before VA and assert
that the agency has unlawfully withheld or unreasonably
Appeals
delayed an action (such as failing to issue a timely decision
The Federal Circuit has exclusive jurisdiction to review
or help a claimant obtain evidence) may petition the CAVC
CAVC decisions. Any party, including the government,
for an extraordinary writ compelling VA to act. Petitions do
may appeal a CAVC decision to the Federal Circuit. The
not go through the CAVC’s mediation process and are
Federal Circuit’s review is generally limited to legal
instead assigned directly to an active judge. Once assigned
questions, and it cannot review the CAVC’s factual
to a judge, a petition follows the same process as an appeal.
findings or application of a law to the facts of a particular
Applications for EAJA Fees
case unless the case presents a constitutional issue.
An appellant may receive a payment from the government
Recent Caseload Statistics
for reasonable attorney fees and litigation expenses if the
appellant (1) is a prevailing party, (2) can show that VA’s
According to its annual report, in FY2020, the CAVC
position was not “substantially justified,” and (3) meets
received 8,954 appeals—a 5.7% increase from FY2019—
certain other requirements. (For more information on EAJA
along with 297 petitions and 6,512 EAJA applications. This
fees, see CRS In Focus IF11246, Attorney’s Fees and the
increase was likely due to a larger number of decisions
Equal Access to Justice Act: Legal Framework.) Almost all
issued by the BVA (per the BVA’s FY2020 annual report,
attorneys appearing before the CAVC represent their clients
the BVA issued 102,663 in FY2020, up from 95,098 in
pro bono with a stipulation that the attorney will receive
FY2019).
any EAJA fees awarded.
During FY2020, the CAVC issued 15,483 decisions
Use of Technology
addressing 8,430 appeals, 309 petitions, and 6,744 EAJA
The CAVC requires all represented parties to file case
applications. The court affirmed the BVA’s decision in
materials electronically through the court’s case
around 7% of appeals, reversed or remanded in 39% of
management and electronic case files (CM/ECF) system.
appeals, and dismissed 13% of appeals. The remaining 41%
Unrepresented parties may submit materials through
of appeals led to mixed outcomes. The CAVC issued 2 en
CM/ECF, by email, or by mail. The CAVC does not charge
banc decisions and 49 panel decisions in FY2019.
the public to access materials on its docket.
Issues for Congress
In April 2019, the CAVC began livestreaming its oral
The House and Senate Veterans’ Affairs Committees have
arguments on YouTube. Links to videos and audio files of
authorizing jurisdiction over the CAVC, while the Military
past arguments are available on the CAVC’s website:
Construction, Veterans Affairs, and Related Agencies
http://www.uscourts.cavc.gov/oral_arguments.php.
Subcommittees of the House and Senate Appropriations
Committees have appropriations jurisdiction.
Types of Decisions
The CAVC resolves cases through decisions issued by the
Class Action Jurisdiction
clerk of the court, an individual judge, or a panel of judges.
Because the CAVC is still developing its class action
When the parties file a joint motion to remand a case or end
authority, Congress may wish to address the scope of that
an appeal, the clerk will issue a clerk’s order granting the
authority. This could include setting specific procedures or
motion and resolving the case. The clerk also grants
expressly allowing or prohibiting class actions arising out
unopposed motions for EAJA fees. According to the
of certain types of cases (e.g., petitions or appeals).
CAVC’s annual report, nearly 80% of the CAVC’s cases
Temporary CAVC Expansion
were resolved by clerk’s orders in 2020.
To keep pace with its increasing case load, the CAVC will
CAVC judges have statutory authority under 38 U.S.C.
likely need to maintain, if not expand, the number of judges
§ 7267(b) to issue single-judge decisions. These decisions
in active service. The CAVC’s temporary authorization for
take two forms: orders that resolve petitions and motions to
nine judges expires in 2026. Although the expiration will
dismiss an appeal; and memorandum decisions that decide
not affect any judges appointed before that date, it would
appeals on the merits. Single-judge decisions are not
prevent the appointment of more than seven judges when
precedential (i.e., not binding in future CAVC or VA cases)
new vacancies arise. If Congress wishes to address this
and, according to the CAVC’s annual report, accounted for
issue, it could consider extending the authorization, making
roughly 20% of the CAVC’s decisions.
it permanent, or authorizing more than nine judges.
Cases that present a new issue of law or require the CAVC
Jonathan M. Gaffney, Legislative Attorney
to modify an existing rule are generally decided by a panel
IF11365
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U.S. Court of Appeals for Veterans Claims: A Brief Introduction

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