the veterans court new chief judge

In August 2015, the Veterans Court appointed a new Chief Judge.

Outgoing Chief Judge Kasold  – the Chief since August 7, 2010 – stepped aside and made way for Judge Lawrence B. Hagel.

This type of thing is often more important to the lawyers of the Veterans Advocacy Community than it is to Veterans.

I don’t believe this should be the case: over time, it is part of my larger agenda to introduce you to the Veterans Court:

I want to show you how its decisions affect – good or bad – the administrative claims process, and how important this Court is to the future of Veterans Benefits law.

For starters, the role of the Veterans Court is not really clear to most Veterans.

After all, when most Veterans think of a Court, they think of discovery, jury trials, cross-examination….

That’s not the Veterans Court.

It’s a different kind of Court.  There is no jury. No Discovery.

No, the Court of Appeals for Veterans Claims was a welcome “watch-dog” … an Article I Court (i.e., a court created by Congress under its Article I powers, not by the Article III of the U.S. Constitution, which is the font of judicial authority in our system.

It’s primary function is to review the final decision of the Board of Veterans Appeals (BVA).

And thank God for that!

With an error rate approaching the fielding percentage of the 2013 Baltimore Orioles, its good to have someone keeping an eye on the BVA.

Impress Your Friends with this Baseball Trivia:  Fielding Percentage is the percent of times that a fielder in baseball did the right thing on defense.  The 2013 Baltimore Orioles had a Team Fielding Percentage of .99104 – the current Major League record.

The so-called Veterans Court is authorized 7 permanent active Judges – in addition, some temporary expansion provisions allow for 2  additional Judges.

All of the Court’s Judges are typically appointed for 15-year terms.

The Court only has one “Chief Judge” at a time.

Short Bio of  the Veterans Court’s New Chief – Judge Hagel.

Well here’s the rest of his “pedigree” – you can read more by clicking here or at the US Court of Appeals for Veterans Claims:

  • Graduated Naval Academy
  • USMC Platoon Leader in Vietnam.  He was awarded the Combat Action Ribbon, 3 MSMs (Meritorious Service medals), an ARCOM (Army Commendation Medal) and the Joint Service Commendation Medal.
  • Graduated Law School from the University of the Pacific McGeorge School of Law in 1976.  Picked up an LLM (Masters in Law) in labor law at  George Washington University Law School in 1983.
  • Served as General Counsel to the Paralyzed Veterans of America.
  • Executive Director of the Veterans Consortium Pro Bono Program (1992 – 2003).
  • Chair of the Veterans Law Committee Section of the Federal Bar (1994-1995)
  • Appointed Judge on the U.S. Court of Appeals for Veterans Claims, 2003 (George Bush appointee…43, not 41)
  • Distinguished Jurist in Residence at Stetson College of Law in 2008 (Co-taught a course on the law of veterans benefits)

That’s an impressive career: it cannot be doubted that this Judge is committed to Veterans advocacy.

Here’s a random and interesting fact about Chief Hagel – he spells Vietnam as 2 words: Viet Nam.He’s historically correct: Việt refers to a region that covers Vietnam and a region in southern China where the Việt people come from. Nam means “south”, hence Việt Nam means the south part of that region.

And, as one might expect from a Marine, he is, in the words of former clerk Rory Riley, “…a very straight-laced, by the book type of guy.”

To understand more about the new Chief Judge, I talked or exchanged emails with several of Judge Hagel’s former clerks.

To a “T”, all spoke highly of him – a theme emerged from those discussions, a theme I hope I convey in this post.

One of those clerks, Attorney Saul Mezei (now a partner at the law firm Morgan Lewis in Washington, DC) speaks very highly of his former ‘boss’:

Judge Hagel is a small-town guy from The Hoosier State who can relate to veterans’-benefits claimants in a way in which few others can. He is humble, wise, and committed to ensuring that all claimants receive fair and speedy decisions. He is keenly aware that the latter criterion–speed–is critical in a system in which justice delayed is often justice denied. I have known no one of greater integrity.

Veterans and their families can become disillusioned by the seemingly endless waiting and the constant news stories fostering the perception that the DVA is a hopelessly broken bureaucracy. But they should take comfort in the fact that someone like Judge Hagel occupies a critical and impartial oversight role. No one is more fit to serve in the role of Chief Judge of the CAVC.

While many of his former clerks did not want to go “on record” they all spoke highly of the Judge.

 

What can Veterans  Expect under the new Chief Judge the Veterans Court?

In interviewing for this article, I asked a form of this question to everyone that I spoke to.

Before I tell you what they said, it may be helpful to understand why this question might be important.

Why do we need to know what Chief Judge Hagel is or will be like as the new “Chief”?  Well, a couple reasons.

A Chief Judge primarily has some additional administrative duties that the associate judges do not – managing court dockets, balancing caseloads of judges, etc.

But there is more to the role of Chief Judge – and it can be hard to articulate:

Explaining the role of the Chief Judge of a Court is a challenging thing to do for a businessman.  We don’t have any parallels of this role in the world of business.  It’s not really a CEO type role…the Chief cannot change or dictate the opinions of any of its judges.

Even in the military, the closest we get to a similar role is the Chairman of the Joint Chiefs of Staff – he (or hopefully she, someday very soon) is the glue that holds a group of top level folks together.

The closest parallel that I have is that the Chief Judge is like  the Manager of a Baseball Team.

Take Tony LaRussa – one of my favorite managers of all time.

He could not play in the game and influence its outcome (just like a Chief Judge cannot tell the Associate Judges what to write or decide in their decisions).

He could not change the rules of the game to fit his agenda (every Chief Judge follows the same rules of court as any other preceding Chief or Associate Judge).

But Tony LaRussa knew the rules of the game well enough that he could use those rules creatively, whenever needed, to ensure that he accomplished what he had been hired to do: win.

Now a Judge isn’t hired to “win” – they are hired to advance and protect the rule of law and to ensure that nobody is putting a finger on the scales of justice.

Like a Baseball Manager, the  success or failure of any Court will always fall on whoever is the Chief at the time.    Just as a managers set the culture for any team, the Chief Judge of a Court can set the tone for an entire Court for a very long time.

Let me give you an example to explain.

I’m sure that most of us have heard of the Warren Court – if you haven’t you should have.

Under Chief Justice Earl Warren, the U.S. Supreme Court became largely what it is today: a branch of government regarded as an equal to Congress and the Executive Branch in terms of the power it could wield.

Before Chief Warren, I think it is fair to say that the Court was held in a very different regard.

The “Warren Court” changed our nation – adding “rocket fuel” to the post-war economic boom while simultaneously expanding civil liberties that are largely taken for granted today.

Heard of getting read your Miranda Rights?  Warren Court.

Desegregation of Public Schools (Brown v Board of Education)?  Warren Court.

Constitutional Right of Privacy?  Warren Court.

But the Chief Judge doesn’t have to write every major opinion to have this kind of impact – in the same way that Tony LaRussa did not ever once have to step on the field wielding a bat to win a World Championship.

No, the Chief Judge must do a lot of ‘leading’ to shape cases into the landmarks they might become…and to string together a series of landmarks to establish a legacy – for the Court, not the Judge.

The landscape of American politics and culture would have been dramatically different if another Chief than Earl Warren had not been able to “work the Judges” at the Court into majority opinions on the controversial issues of the day.

Now, I don’t mean to say that Chief Hagel has this kind of power.

After all, it’s a “niche” court in an area of law that affects at most about 21 million people – Disabled American Veterans.

But how that Court comes down, on the issues of the day, impacts us all.

So let’s get to know what kind of Chief Judge we might be looking at here…..

3 Opinions from Judge Hagel.

Three decisions does not a body of work make.

I’m not judging the man by these 3 opinions as I am selecting them to begin to paint a picture of what we might expect over the next few years at the CAVC.

I picked these opinions because they seem to represent everything I have learned about Judge Hagel – from previous clerks  and past colleagues, to attorneys that appear before him today, and more.

I think these 2 decisions, while not representative of his jurisprudence are quite likely representative of his style.

Ribaudo v. Nicholson, 20 Vet.App. 552 (2007)

Ribaudo is a case that doesn’t have the glitz and glamour as some of the Court’s more famous decisions.

But there is no doubt that Ribaudo has been one of the most important and foundational cases in firming up the foundation of the Court’s role in the VA Claims Process.

In this case, it would have been easy for the Veterans Court to lash out at the BVA.  Before Ribaudo reigned in a rogue body of self-proclaimed Veterans Law Judges, it was a bold, brash – bordering on insolent when it came to the rule of law.

Still is, some might say…you can see echoes of the BVA’s desire not to answer to anyone in decisions every now and again.

Generally, here’s what happened in Ribaudo: in defiance of a decision of the Court saying the BVA could not do this, the BVA attempted to stay the implementation of a Court decision that would help a lot of Veterans.

The VA’s motive was clear: “the effect of the Secretary’s action …is abundantly clear-so long as he does not want to, the Secretary believes that he is empowered to never apply this Court’s decision…”

That’s bold. And I won’t go into the legal structure of Chief Hagel’s retort, but will allow you to click here and read it for yourself.

In this decision, you can see a judge very frustrated with the VA’s insolence, and the harm it caused to the rule of law and to Veterans.

You can also see  a Judge that exercised restraint – as he used the Writ of Mandamus (a weapon the Court almost never uses) to make it calmly clear that the Court’s authority – carved out by Congress – would not be ignored by the Executive Branch.

** The link to the CAVC Order described above is not publicly available on the Ribaudo docket on the CAVC Docket Search pages.  I am working with Lexis to get permission to share a copy from their service so that you can read the Ribaudo decision.

Carter v. Shinseki, 26 Vet. App. 534 (2014), vacated by 2015 U.S. App. LEXIS 12521 (Fed. Cir. July 21, 2015).

Carter was a fascinating  opinion – even though it was just  vacated by the Fed Circuit (for reasons totally separate from those I talk about here),  there is a lot in this opinion to “chew on” for a long time.

What Carter stood for was a holding that scared the bejeebers* out of both Veterans Advocates and the attorneys of the Office of General Counsel alike: essentially, and I am paraphrasing here, the Court held when the OGC and a Veteran enter into a joint motion for remand (aka, a JMR), they imply the terms of the JMR will control at the BVA.

Carter scared the VA’s Office of General Counsel because it could be argued that it enlarged the Duty to Assist, and required the BVA to look at all referenced issues to see if additional claims were “reasonably raised” by the record below.

(This was not the worst fear that the OGC had, or should have had, about this decision….but since my post on Froio, I see the OGC spending some time on this blog….so I’m not going to tip our hand to future legal strategies and arguments).

Carter scared Veterans Advocates because we know that we are almost always forced to navigate Scylla and Charibdis in negotiating JMR’s….despite what it told the Court, the OGC doesn’t truly negotiate JMRs…they send boilerplate and pretty much arbitrarily say: “This is what we will do”.

A lot of advocates were reading Carter for the idea that assertions of Stegall errors in future CAVC appeals of previously JMR’d appeals might be extremely limited – if so, it would be safer to go to full briefs and get a decision on the merits.

Because of the Fed Circuit’s decision vacating this Court opinion, we will never know how this would have played out at the BVA or in the single-judge CAVC decisions.

And while we know the opinion was written by (now) Chief Judge Hagel, we don’t know to what degree it represents his mind or the collective mind of the Court.

But it is a fascinating case to study, for a lot of reasons.

2 pieces of insight we get into the new Chief Judge from this opinion:

1) It will be crucial for Veterans and Advocates to document – in  and through the Record Before the Agency – what REALLY happens at the BVA and in negotiations with OGC for JMRs; and,

2) The entire tenor of this decision reads of a Court looking for a way to reduce the hamster wheel of remands. It’s out of control, we all know that.  My hunch is that, throughout the “Hagel Court”, we will see the Court experiment with different approaches to thinning out what gets sent back into the Black Hole of Remands.

El-Amin v. Shinseki, 26 Vet. App. 136 (2013).

The holding of El Amin was pretty important to the body of Veterans Law.

The gist of the Court’s decision was that the BVA errs when it relies on a C&P Exam that only considers ONE theory of service connection, and not ALL the theories raised in the claim (In El Amin, the C&P Examiner found no direct service connection between PTSD and alcoholism, but failed to consider whether one PTSD aggravated the alcoholism and ultimately led to hepatic cirrhosis, for which the Veteran’s Survivor sought DIC benefits).

This is a pretty important holding – it lays the foundation for advocates to kick out the piecemeal examinations and insist on thorough and quality exams from C&P Examiners – and keep cases from going up and down the remand hamster wheel for decades.

But the holding of El Amin, important though it is, is not the reason that I think this decision gives us insight into Chief Hagel.

On 2 occasions in the El Amin decision, Chief Hagel engages in a behavior that builds up people rather than tears them down.

First, when criticizing the C&P Exam in the case, he points out that the Examiner is not at fault – I’m going to paraphrase here – by pointing out that the real flaw was the overly broad bureaucratic requests for the exam that did not ask the Examiner the right questions.

While I’m not fan of the Junk Science that comes out of most C&P Exams, he’s got a point – many of the VA docs writing C&P Exam opinions are doing the best they have, within the confines of a bureaucracy that doesn’t utilize the full breadth of their training, skill, or knowledge.

It’s not often that a Court’s opinion is gracious – most times, decisions are  at best cold and impersonal.

Second, the opinion commends the “superior oral advocacy by both counsel in this appeal”, and goes on to make a pretty damn glowing statement about their work.

I can throw a rock and hit a hundred court decisions that slam attorneys, rebuke attorneys, mock attorneys, belittle attorneys – particularly in this practice area where everyone seems to think that Veterans Advocates are rolling in piles of gold built on 20% contingency rates with profit margins often below “single digits”.

Very few  Judges points out and recognizes good work.

Doing so changes how a lot of people perceives the legal system….I remember after one oral argument in a Federal Appellate court, I received a call from a clerk for a particular judge of the Court that had sat on the panel.

This never happens – and I was taking aback.

The clerk passed on a compliment from “chambers” on the style of my argument. Not knowing that my youthful good looks belie my advanced age, the compliment was that polished arguments are rarely seen from attorneys so young.

The Judge proceeded to dismiss my client’s appeal and rule for the other side, but the compliment has been burned in my brain.

To this day, I talk favorably of this Court, no matter what decision it issues.

That’s the major takeaway from El Amin – Chief Hagel seems to be a gracious and fair jurist, not afraid to brush away some of the animosity that exists between and among the VA, Veterans, and their advocates.

In the end, if that is all the “Hagel Court” does – humanize this benefits process, tear down some of the walls of animosity that have been built up for years, maybe goes so far as to remind us that we are all on the same darn team …. well, that would be more of a success than anyone might ask for.

The Veterans Law Blog congratulates Chief Judge Hagel on his new position and wishes him the best of luck during his term as Chief Judge.

3 Comments

  1. Edward Fallon

    Chris, Thanks for taking the time to make the morass of dealing with the VA Claims and its processes more clear. To know that the Chief Judge is a Marine combat vet with a an even handed perspective gives me hope that future claims will be handled more responsibly and more thoroughly at all levels of the VA claims bureaucracy. Thanks again for keeping up the fight to” encourage “the VA treat us more fairly and in a more timely manner.

    Reply
    • Chris Attig

      Edward,

      You make a great point. I am eager to see what Judge Hagel can do, but even more eager to see 2 of the newer Judges (Greenberg and Bartley) when they get a crack at “chief” in a few years.

      Chris

      Reply
  2. Scott green

    Great information I belive this is going to be a postive things for us veterans to move forward change is on the way.

    Reply

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