How different can an Article I appellate court be from a traditional appellate court? One way to look at it is to question when such a court can have unique doctrines that bend the traditional rules of appellate review to fit its own circumstances.
One of the aspects that makes the United States Court of Appeals for Veterans Claims (CAVC) unique is that it has never had a judge who was previously a member of the body it reviews, the Board of Veterans’ Appeals (BVA). This means that the two bodies do not have any common frame of reference. Unlike most appellate courts, where there are usually several former trial judges who can read between the lines of a transcript and know what happened off the record, the CAVC has never had a judge who could place BVA decisions in their native context. This creates an unusual information gap that sometimes makes it difficult for the two bodies to effectively communicate with each other through their written decisions.
This lack of a common frame of reference is exacerbated by the fact that most appellants that the court sees were not represented below and therefore did not have expert assistance in properly developing their arguments. This problem was particularly acute during the first decade of the CAVC’s existence. The court’s first chief judge once described it in his “State of the Court” address by comparing the review of a pro se appeal to watching “a good tennis player who’s pitted against a novice. Can’t play worth a damn.” Accordingly, the CAVC has been forced to turn to other sources of information about agency operations to assist in review.
Even when there is a lawyer, a typical CAVC appeal involves a veteran who has attorney representation with the claim for the first time at the court level. As I have discussed earlier, in most cases, the attorney has no choice except to argue that a procedural remand requires an error. How exactly can the attorney (or the court) know which procedures were applied within the agency? Major procedures are defined by regulation. However, many smaller bits of procedure are not so clearly defined. Some are documented in VA’s procedure manuals, but what about procedures that are not, or that are particular to one facility?
Historically, it has been common for VA to use affidavits from employees to explain to the courts procedures that are not documented in easily accessible regulations or manuals. However, the Federal Circuit very recently held in Kyhn v. Shinseki, ___ F.3d. ___, 2013 WL 1846562 (Fed. Cir. May 3, 2013), that the CAVC cannot consider such evidence because it is not properly part of the record.
What is unstated in Kyhn is that the reason that the CAVC has historically allowed such evidence is that it rarely finds issues to be waived by pro se appellants. In most courts, the burden is on the appellant to make a record below so that the court has something to review. However, such a rule simply does not make much sense at the CAVC, due to the fact that its appellants have historically not had attorney assistance below. In order to entertain issues that would have been waived in any other system, the court has also permitted the Secretary to explain the applicable procedures by affidavit when necessary. Perhaps not by coincidence, the Federal Circuit decided Parks v. Shinseki, ___ F.3d. ___, 2013 WL 1846570 (Fed. Cir. May 3, 2013), on the same day as Kyhn. In Parks, the court held that the veteran had waived a procedural challenge by not developing it at the agency.
Together, Parks and Kyhn would make sense for a regular court. They represent the typical system in which issues must be raised and developed so that an appellate court has a proper record. Unfortunately, the veterans benefits system is not a typical system. It was clearly the intent of Congress that the CAVC should be scrutinizing VA’s procedures and its fidelity to them. However, the practical realities of a system in which attorney involvement is rare prior to a court appeal make it difficult to see how the court will be able to fulfill this role if it cannot consider procedural issues that were not fully developed below.
Perhaps the problem is strictly statutory. It is up to Congress to recognize when an Article I court needs special rules to accommodate its unique mission. As Michael Allen has suggested, maybe it is time for Congress to reconsider the whole structure of judicial review now that we have twenty years of experience upon which to reflect. However, reconsidering the structure of judicial review in veterans law begs a larger question: What exactly is the role of the courts, and can they fulfill that role based upon the characteristics of the cases that are actually appealed to them? There are a lot of hard philosophical and empirical issues packed into that question, but they are ones that are well worth investigating.