The Supreme Court of the United States is the highest court in the land and technically does have jurisdiction over veterans claims (more on the limits of Supreme Court review in a moment). There is actually a court between the Court of Appeals for Veterans Claims (Veterans Court) and the Supreme Court, to which appeals must be taken first, and that is the Court of Appeals for the Federal Circuit (Federal Circuit). We appeal very few cases from the Veterans Court to either of these courts, however, and this posting explains why that is.

All appellate courts (courts above the original agency or trial court) have limited powers of review of decisions, in the sense that there are aspects of the original decision that will not be reviewed. This is because the purpose of appellate courts is not to adjudicate benefits claims but to police the process, making sure the rules are followed and the law is applied correctly. Appellate courts often “make law” when they interpret statutes or legal principles, so in that way they can significantly affect the results in individual cases, but, strictly speaking, they are not interested in those results.

In veterans cases this is true in the first instance of the Veterans Court, which will not disturb a factual determination made by the agency (Board of Veterans’ Appeals) unless it is “clearly erroneous,” a difficult legal standard to meet – basically that no reasonable person could have reached that finding on the evidence. This is why the Veterans Court almost never grants benefits; it reviews the law and the processing of the claim to see whether it was handled properly, and if it was not, the case must be sent back to be redone with the correct law and processing. The Court must send it back to the agency because the facts must be considered and the appellate court can’t do that.

The Federal Circuit is even more limited in the scope of what it can review and correct in decisions of the Veterans Court. By statute, Congress has forbidden the Federal Circuit to review factual matters at all, but in addition has also precluded that court from reviewing matters that involve “application of law to fact” unless a constitutional issue is involved. The phrase in quotation marks is not a terribly clear one to interpret as it applies to veterans cases, and, indeed, it has resulted in rather varied interpretations by the Federal Circuit as to the scope of its jurisdiction.

A concrete example may help illustrate the problem. The law sometimes provides for something called “equitable tolling,” essentially a forgiveness of a deadline because a good faith effort was made to attempt to comply with the deadline. Equitable tolling is a legal concept, a question of pure law that the Federal Circuit can review. But whether equitable tolling should have been granted in a particular case could turn on what the facts of the case were, which the Federal Circuit is not permitted to examine. Thus where the Veterans Court ruled that the veteran failed to meet the deadline through her own neglect, a factual determination, the Federal Circuit lacked legal power (jurisdiction) to consider the appeal. Leonard v. Gober, 223 F.3d 1374 (Fed. Cir. 2000). On the other hand, where it was not factually in dispute that a veteran mistakenly filed his paper in the wrong VA office, the court could review whether that filing showed proper diligence as required by law, a strictly legal question. Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002). You might be thinking just about now that whether an action is diligent is rather factual in nature…if so, you begin to see how fuzzy is the line between what the court will consider and what it will not.

There is another aspect of an appeal to the Federal Circuit that can affect whether to undertake the appeal. Even if the court has jurisdiction of the issues, it has a procedural option to receive briefing, hear oral presentations from the lawyers, and then simply decline to consider the case further, something called “summary affirmance.” This means that one can put forth a lot of effort in an appeal and then lose without ever getting any explanation why. For these reasons, we in this firm are very cautious about what sorts of cases we appeal to the Federal Circuit, taking up only issues that we are fairly confident will both get past the confusing fact-review prohibition and be sufficiently compelling to interest the court in taking the trouble to consider them and write a decision. Nothing is served by wasted effort.

Review by the Supreme Court works quite differently but is an even more remote possibility in a veterans case. This is because, while a clamant has an absolute right to appeal to the Veterans Court and to the Federal Circuit (though, as noted above, the Federal Circuit can refuse to wade into the issues, but it does have to accept the appeal), the Supreme Court accepts only the cases it wishes to decide. There are some types of cases that the Supreme Court must hear, but the great majority of decisions, including those in veterans cases, are reviewed only upon the Court’s grant of something called a “writ of certiorari,” which simply means the Court has determined that the issues warrant consideration by the nation’s highest court and it chooses to consider them. These are generally matters that (a) involve the U.S. Constitution or the interpretation of a federal statute, (b) are unresolved, either never having been considered or having been decided differently by lower courts, and (c) are of great significance, affecting many cases or momentous affairs. As you might imagine, very few cases involving veterans claims meet all of these criteria.

These are the reasons why very few cases are appealed beyond the Veterans Court. We do pursue cases in the Federal Circuit on occasion, when the right circumstances exist, and we would do so in the highly unusual situation where a Supreme Court type of issue was presented. But it just does not happen that often.

David E Boelzner Veterans Benefits Claims Veterans Court