Many cases regarding veterans\u27 benefits are heard in the Federal Circuit. The Federal Circuit has a practice of issuing one sentence orders in some cases. This practice benefits veterans by allowing decisions adverse to veterans to be made without creating precedential value. Removing the practice of unpublished opinions in the Federal Circuit would extinguish this benefit

Mills, Charles G.

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University of Arkansas at Little Rock: UALR Bowen Law Repository

The Journal of Appellate Practice and Process Volume 3 Issue 1 Article 20 2001 Anastasoff v. United States and Appeals in Veterans' Cases Charles G. Mills Follow this and additional works at: https://lawrepository.ualr.edu/appellatepracticeprocess  Part of the Administrative Law Commons, Common Law Commons, Courts Commons, Military, War, and Peace Commons, and the Retirement Security Law Commons Recommended Citation Charles G. Mills, Anastasoff v. United States and Appeals in Veterans' Cases, 3 J. APP. PRAC. & PROCESS 419 (2001). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol3/iss1/20 This document is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in The Journal of Appellate Practice and Process by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more information, please contact mmserfass@ualr.edu. ANASTASOFF v. UNITED STATES AND APPEALS INVETERANS' CASESCharles G. Mills*The reasoning of Judge Richard S. Arnold in the EighthCircuit case of Anastasoff v. United States,' in which the panelheld that all of its decisions must constitutionally be consideredprecedent by that court, is directly contrary to the attitude of theUnited States Court of Appeals for Veterans' Claims' and theCourt of Appeals for the Federal Circuit, the two courtsresponsible for almost the entire body of the law of veterans'benefits. If these courts reconsider their approach towardunpublished opinions in light of the reasoning of Anastasoff, itcould cause a profound change in the substance of the law ofveterans' benefits.Veterans' pensions were provided for in 1789 by the FirstSession of the First Congress,3 and some form of veterans'benefits have been part of the laws of the United States eversince. In the nineteenth century such benefits sometimesexceeded one-third of the federal budget.4 They also weresignificantly expanded by the G.I. Bill of Rights followingWorld War II. Despite this, the case law concerning veterans'benefits was essentially non-existent until the adoption of theVeterans Judicial Review Act on August 16, 1989.' The case* B.A., Yale University 1962; J.D., Boston College 1967; Judge Advocate, TheAmerican Legion, Department of New York.1. 223 F.3d 898 (8th Cir. 2000), vacated as noot, 235 F.3d 1054 (8th Cir. 2000) (enbanc).2. Formerly the Court of Veterans' Appeals.3. Ch. XXIV of the Ist Sess. of the 1st Cong., I Stat. 95 (1789); see also Ch. XXVIIof the 2d Sess. of the 1st Cong., I Stat. 129 (1790); Ch. XXIV of the 3d Sess. of the 1stCong., I Stat. 218 (1791).4. See Michael J. Bennett, When Dreams Came True: The G.L Bill and the Making ofAmerica 40-41 (Brasseys Inc. 1996).5. 38 U.S.C. §§ 7251-7298 (1991).THE JOURNAL OF APPELLATE PRACTICE AND PROCESS Vol. 3, No. 1 (Spring 2001)THE JOURNAL OF APPELLATE PRACTICE AND PROCESSlaw on veterans' benefits has been made in its entirety sinceJanuary 22, 1990,6 and-with the exception of one U. S.Supreme Court affirmance'-has been made entirely by twocourts: the United States Court of Appeals for Veterans' Claimsand the Court of Appeals for the Federal Circuit.With the adoption of the Veterans Judicial Review Act andunder Article I of the Constitution, Congress created the Courtof Appeals for Veterans' Claims to hear appeals from the Boardof Veterans' Appeals, which conducts the final non-adversarialadministrative review within the Department of Veterans'Affairs.8 Under Rule 30 of the Court of Appeals for Veterans'Claims, cases decided by the court may not be cited as precedentin any action before the court if the decision is taken by a singlejudge, if the decision is not published in the Veterans AppealsReporter, or if the decision is withdrawn after being published.9From December 1989 to July 2000, the Veterans' Claims courtconsidered over 17,000 cases. For the fiscal year 2000 the Courtexpects to decide about 2,195 cases.'0 Of those opinions, thecourt recognized only about ten percent as precedential.The Federal Circuit also limits the citation of its"nonprecedential" opinions and orders. As set forth in Hamiltonv. Brown," the Federal Circuit has a three-part classification ofits cases: those that end with full opinions, those that end withone sentence orders, and those that merit something more than a6. Matter of Quigley, 1 Vet. App. 1 (1990).7. Brown v. Gardner, 513 U.S. 115 (1994).8. 38 U.S.C. § 7251 (Supp. 2000).9. Rule 30 of the Court of Appeals for Veterans' Claims reads:(a) A party, intervenor, or amicus curiae may not cite as precedent any action ofthis Court that is:(1) taken by a single judge;(2) not published in the Veterans Appeals Reporter; or(3) withdrawn after having been published in the Veterans AppealsReporter.(b) A person may refer to an action described in Rule 30(a)(1), (2), or (3) onlywhen the binding or preclusive effect of that action, rather than its quality asprecedent, is relevant. A copy of the action cited must be attached to thedocument containing such reference.Vet. App. R. 30 (2000).10. About twenty-one percent of these cases are decided on procedural grounds and therest are determined on the merits. Sixth Judicial Conference of the U. S. Court of Appealsfor Veterans' Claims, Opening Remarks of the Chief Judge.1I. Hamilton v. Brown, 39 F.3d 1574 (Fed. Cir. 2000).APPEALS IN VETERANS' CASESone sentence order and something less than a full opinion.'2 TheCourt says the cases in this last group "do not represent theconsidered view of the Federal Circuit regarding aspects of aparticular case beyond the decision itself." "During the 1990s, the Court of Appeals for the FederalCircuit decided at least 536 cases on appeal from the UnitedStates Court of Appeals for Veterans' Claims. Of those 536cases, the court published opinions in fifty-five. After thosefifty-five cases and between October 1998 and July 2000, theFederal Circuit published an additional twenty opinions inveterans' cases. As of July 2000, these seventy-five cases andone Supreme Court case affirming one of them 4 constitute theentire body of case law concerning the benefits, pensions, andhealthcare of veterans and their survivors that the FederalCircuit permits to be cited as precedent.The approaches of these two courts are in direct conflictwith the reasoning expressed by the Eighth Circuit in Anastasoffas to the use of unpublished or otherwise "nonprecedential"opinions. There is, of course, an important difference betweenthe Eighth Circuit rule determined in Anastasoff to beunconstitutional and Rule 30 of the Court of Appeals forVeterans Claims. Rule 30 is not a judicial usurpation oflegislative authority because it is a rule of a court created underArticle I, not Article III of the Constitution. There is noconstitutional mandate that tribunals created by Congress makean initial examination of claims against the government observejudicial precedents. A rational scheme to determine whichdecisions of such a tribunal are precedents does not violate theseparation of powers the way the rule invalidated in Anastasoffdid.However, the broad concept underlying Anastasoff-thatevery case decided by a court must, constitutionally, beconsidered precedent-would have far-reaching effects ifadopted by the Federal Circuit. Under the reasoning ofAnastasoff, the summary affirmance by the Federal Circuit of anunpublished one-judge order of the Court of Appeals for12. Id. at 1581.13. Id. (noting that "nonprecedential opinions are not citable to this court .... and theyare not intended to convey this court's view of law applicable in other cases").14. Brown v. Gardner, 513 U.S. 115 (1994).THE JOURNAL OF APPELLATE PRACTICE AND PROCESSVeterans' Claims would have the force of precedent and wouldbe controlling in the lower court. Therefore, if the FederalCircuit adopts the Anastasoff reasoning, there will be animmediate ten-fold increase in precedential cases.It has been argued that the Federal Circuit's approach tounpublished opinions actually benefits future veteran partiesbecause the court can publish decisions favorable to veterans inorder to give them precedential authority, but write unpublisheddecisions in cases adverse to the veteran in order to inform theveteran as to the reasons his claim was rejected, without therebycreating a precedent.'5 According to a study done by ProfessorWilliam Fox of the Columbus School of Law, CatholicUniversity, the Federal Circuit was more likely to reverse inrecent years than in the early 1990s, and also more likely topublish its reversals.' 6 Of those reversals, Professor Foxdetermined that nineteen were favorable to veterans, two wereadverse to veterans, and two were neutral. These publishedreversals seem to reflect a strong public recognition by theFederal Circuit that Congress intends for veterans to be assistedin establishing the facts to support their claims and be given"every benefit that can be supported in law." " However, toascertain the true extent to which veterans receive this assistanceand these benefits, one must look to both published andunpublished law.That one class of parties is favored by designating certainopinions as unpublished and nonprecedential is not ajustification for the practice. Furthermore, the exclusion of muchof the body of veterans' benefits law from precedential effectactually benefits the Secretary of Veterans' Affairs in at leasttwo ways.First, because the Secretary of Veterans' Affairs is a partyto every veterans' benefits case, the office of his GeneralCounsel is completely aware of all unpublished decisions in thisfield and can evaluate the probability of his success in new casesbased on this knowledge. Generally the veteran or his survivor15. Address of Richard M. Hipolit, Dep. Gen. Counsel, Dept. of Veterans' Affairs, atthe Sixth Judicial Conference of the Court of Appeals for Veterans' Claims.16. Reported at the proceedings of the Sixth Judicial Conference of the United StatesCourt of Appeals for Veterans' Claims.17. Collaro v. West, 136 F.3d 1304, 1309 (Fed. Cir. 1998).APPEALS IN VETERANS' CASEShas no such advantage, and as long as it remains strictlyforbidden to cite unpublished decisions, is unlikely to acquiresuch knowledge. As long as these unpublished opinions lackprecedential value, no one outside the office of General Counselto the Secretary of Veterans' Affairs is going to index or digestthese opinions or gather them together so that they are accessibleto the public.Second, because of the exclusion of much of the body ofveterans' benefits law from precedential effect, the Secretary ofVeterans' Affairs has another advantage. He can decide not toappeal a strong (even en banc) decision in favor of the veteranmade in the Court of Appeals for Veterans' Claims and insteadappeal to the Federal Circuit from a weak non-precedentialdecision on a similar issue-with a good chance that if he losesin the Federal Circuit, his loss will be non-precedential. Forexample, in Russell v. Principi,"' the then-Court of Veterans'Appeals held en banc that final decisions of the Board ofVeterans' Appeals are subject to correction for clear andunmistakable error.' 9 A single-judge court followed Russell inSmith v. Principi.2 ° As set out above, Rule 30 designates single-judge actions as "non-precedential" and prohibits their citation.The Secretary of Veterans' Affairs did not appeal Russell but didappeal Smith, thereby minimizing his risk. In Smith v. Brown2'the Federal Circuit reversed.22Giving equal authority to the published and unpublishedacts of the Court of Appeals for Veterans' Affairs and the Courtof Appeals for the Federal Circuit will act to equalize theplaying field between the veteran and the Secretary of Veterans'Affairs, to equalize the treatment veteran-appellants receive bythe courts, and to make the policies of the court in veterans'cases better known.18. 3 Vet. App. 310 (1992).19. Id. at 313.20. 3 Vet. App. 378 (1992), rev'd, 35 F.3d 1516 (Fed. Cir. 1994).21. 35 F.3d 1516, 1527 (Fed. Cir. 1994).22. Congress disagreed and nullified the result of Smith v. Brown in 38 U.S.C. § 5109A(2000).

Anastasoff v. United States and Appeals in Veterans\u27 Cases

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Anastasoff v. United States and Appeals in Veterans\u27 Cases

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