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A few weeks ago, I had the chance to listen to Judge Greenberg (Court of Appeals for Veterans Claims) talk about some Veterans Court Cases that he finds particularly intriguing.

One of those cases was Hayburn’s Case – a case that could well have been the biggest case in American Jurisprudence but for a matter of timing.

(Not long after the “ruling” in Hayburn’s Case, the Court issued its decision in Marbury v. Madison – the case that set the tone for the entire structure of our Judiciary for the last 200+ years.  But for timing, law students might have been taught Hayburn’s Case, and not Marbury v Madison).

Case Law teaches us how to Improve Our VA Claims.

The theme on the blog this week is that Court cases are so much more than just rulings on issues of law, or arbitrary  restatements of the law.

They are a major clue  – giving subtle (or not-so-subtle) guidance – to the Wise Veteran about what to do KNOW to improve their claim.

Grasping this concept is a vital part of my 8 Steps to Improve your VA Claim – Step #3 is to Learn the Law.  I don’t mean go to law school. I don’t mean become a lawyer, or memorize what cases stand for what rules.

What I mean is this: learn how the Law instructs you how to set your case up for – hopefully – success.

Monday, I showed you how this worked by analyzing a Federal Circuit case from 2014 – Dixon v. Shinseki.  Underlying the Court’s ruling on an issue of “tolling of deadlines” was this theme: Get your C-File NOW, BEFORE you really need it.

Tuesday, I showed you this worked by analyzing a non-precedential Veterans Court decision from which can learn 6 ways to find inadequacies in the C&P exams that Veterans – for years – have had heartburn with.

In the past, I’ve showed you how this worked in the context of an Extra-Schedular IU case by analyzing another non-precedential decision of the Veterans Court.

Today, I want to show you what we can learn from Hayburn’s Case – a 1792 court case – that demonstrates what I believe to be a central theme in our national treatment of Veterans.

We must consider the possibility that the VA is not screwed up because its the VA, but instead because Americans have woven into the very fabric of our nation the idea that we are patently incapable of walking the talk and paying military Veterans for their sacrifices.


But first, a Word about Judge Greenberg

You can read Judge Greenberg’s bio on Wikipedia here – he was appointed for a 15 year term in 2012, and has a long record of standing up for soldiers and military Veterans in the legal community.

I was apprehensive of the presentation right before I sat through it.

First, I’m not one that is easily titillated by the legal inter-twinings of case law, and was worried I was about to sit through a didactic about judgeship, the bench, a court or the rule of law.  I much prefer understanding the practical workings of the law – and how it affects the people that have to live in and with it.

Second, Judge Greenberg left the military as a Brigadier General.  I left as a company grade officer – a Captain.  Captains and Lieutenants are rightfully leery of  Field Grade and General Officers.  In fact, we used to have a joke that upon promotion to Major, an Army Officer got his “Field Grade Lobotomy” – his/her common sense and “soldiers-always” philosophy was medically removed from the brain.

To my surprise, however,  Judge Greenberg’s speech in  April 2014 was utterly fascinating – my mind had soaked up all it could long before he finished talking.

To Judge Greenberg, I say this:  “Well done, sir. Well done.”

Judge Greenberg’s selection of cases was varied and uncommon.  His energy – and passion – for the Veteran was the glue that held his presentation together.  At the risk of waxing grandiloquent, his thought process seems to me a beacon to guide Veterans into a new future for Veterans in the law.

Yes, we have a VA that is extremely competent at tying its own hands with red tape.

We have a Congress that is about as useful as nipples on men (we’d look weird without ’em, but they are largely useless).

We have a population that seems more interested in verbally supporting Veterans than in actually helping them reintegrate.

But we also have a very young Court, that is slowly gaining confidence in its authority.

We have a Bench  that is morphing, slowly, into one that I think wants to hear, understand, and do what it can to correct the plight of the Veteran in the VA Claims process.

One that I think can crystalize, in its decisions, the fact that Veterans are people who “suffer great distress”, and sometimes “utter ruin”, by the problems in the VA Claims process.

(Throughout time, the courts have been the slowest in the march towards progress, so we’ll have to be patient, but I’m enthused by what I’ve seen out of the newest cadre of appointees to the Veterans Court).

Mix that possibility, with the fact that we have exponentially MORE – highly competent – professional advocates representing Veterans than we ever have in our entire nation’s history.

Judge Greenberg’s talk convinced me that the Veterans Court is a rising sun –  not a setting one.

One case the Judge showed a clear passion for was Hayburn’s Case – a Supreme Court case from 1792.

My apologies to Judge Greenberg: he obviously has a true passion for Veterans law and, particularly, Hayburn’s case. In this brief blog post, I will be unable to do  justice to the full legal implications of, and in, Hayburn’s Case.  Like layers of an onion, Hayburn’s case can be peeled away and studied on many levels.

Dusting off the lawbooks and summarizing “Hayburn’s Case”.

Shortly after the Revolutionary War, Congress passed a law that established pensions for certain soldiers disabled in/by the Revolutionary War.

The law gave the Federal Courts the power to decide Pensioner Eligibility (stuffy colonial-speak for Veterans Benefits), subject to “override” of the Court’s decision by the Secretary of War.

This, ultimately, became the dispute in Hayburn’s Case.  The Courts didn’t want this responsibility – they felt that doing so was unconstitutional, as it required that the issue what are called “Advisory Opinions”.

Oversimplified, Advisory Opinions are decisions about a matter that is not yet in dispute before a Court.    

US Attorney General  (Edmund Randolph, pictured above, was an aide to General Washington during the Revolutionary War) filed a Petition for Writ of Mandamus, asking for an Order from the Supreme Court directing the lower courts to fulfill their statutory duties.

There was some huffing and some puffing, but before the Court could rule on the case Congress changed the law. With that Hayburn’s Case was relegated to the history books.

What does Hayburn’s Case – a 200 year old case – tell us about the Court of Appeals for Veterans Claims, today? 

3 things, I think, can be gleaned from this history lesson:

1) First, there is some language in this case that shows how important it is for a Court to respect the Congressional intent of a statute.  Many Veterans miss this – a lot of Courts struggle with bad outcomes in VA Claims, but feel obliged to follow Congress’ lead – they are, after all, the branch that writes the law.  So don’t forget, in all of the hurling of insults, to make sure that a fair share land where a great deal of the responsibility lies: Congress.

2) Knowing that there is this difference – between what Congress intended and what Congress wrote –  you should be prepared to show the Courts (and sometimes the BVA) how Congress intended a outcome  favorable to you.

How do you do this?  Read the statute.  Research the debates underlying the statute – they are all a matter of public record.   Argue the language. Save your argument for your VA Form 9 – the VA Regional Office doesn’t have as much respect for the Rule of Law as we might hope.  It often seems that, to the bureaucracy at the VA Regional Office, law is “optional”.

3) There is a curious proposition in the Hayburn Case – one that might be nice to argue someday.  The General Rule, since Marbury v Madison, is that the Federal Courts do not offer Advisory Opinions.  In commenting on this idea (before the Marbury decision was written, admittedly) was this passage from the Court:

“None can be more sensible than we are of the necessity of judges’ being … extremely cautious in not intimating an opinion in any case extrajudicially…. we well know how liable the best minds are….to a bias which may arise from a preconceived opinion…much more deliberately, given.

“But in the present instance, as many unfortunate and meritorious individuals whom Congress have justly thought proper objects of immediate relief  [i.e., Revolutionary War Veterans] may suffer great distress even by a short delay and may be utterly ruined by a long one, we determined at all events to make our sentiments known as early as possible, considering this as a case which must be deemed an exception to the general rule upon every principle of humanity and justice.”  (emphasis is mine, as is the portion in brackets).

What does that mouthful of Colonial-ese mean?

It means that as far back as the Revolutionary War, the Courts realized that delay by Congress and the Executive Branch in handling the Pension Claims for Disabled Soldier might well be the exception to the rule that Courts cannot offer advisory opinions.

I think I’m going to let that idea percolate in my brain for a bit.  Maybe, someday, the right facts will walk into my office and allow me to raise an argument like this:

The entire body of American  Jurisprudence is rooted in the premise that Federal Courts DO have the power to take action to compel the VA to act – whether through a Writ or through an Advisory Opinion (quite possibly even in the absence of congressional authority or executive rule) – when the delays of Congress and the Executive Branch cause such great distress and utter ruin to the men and women whose blood was shed nourishing the Tree of Liberty.

For now, though, it is enough to know that the chain of Veterans screwed by the people for whom they fought stretches all the way back to the birth of our nation.

(It actually goes further back – read about the Newburgh Conspiracy in 1782-1783).

1 Comment

  1. Catharine Farmer

    This is a great concept. I have also found that by reading the BVA appeals you start to see patterns in what works and what does not. You see how the VA responds to the arguments that the veteran puts forth. If you have a bit of time, it is worth reading.


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