Two years ago during arguments in an attorney fee case under the Equal Access to Justice Act, Chief Justice John Roberts Jr. found “really startling” the government’s admission that when litigating against veterans seeking benefits, it more often than not—perhaps as often as 60 percent of the time—takes a position that is substantially unjustified. 

That exchange with an assistant to the solicitor general, who called the number “unfortunate” but “accurate,” was a small window for the justices into what many call the byzantine veterans’ claims system. The chief justice and his colleagues could be excused for being startled that day because the U.S. Supreme Court rarely takes veterans’ appeals, and few veterans have the wherewithal to take a case all the way to that Court, said William Fox of Penn State Dickinson School of Law, a leading expert in veterans law.

Major veterans’ organizations now hope that a larger window will open for the justices if they agree to hear an appeal by a feisty octogenarian with terminal lung cancer and her pro bono counsel, patent litigator Edward Reines of Weil, Gotshall & Manges.

Last May, The National Law Journal recounted the plight of Lady Louise Byron, whose claim for benefits arising from her husband’s death had been in the claims system for 41 years. Her husband died from cancer in 1971, the result of radiation exposure in the early 1950s during nuclear tests in the Nevada desert.

During 15 years of active litigation, her claim was reviewed 10 times—three times at the regional level of the Department of Veterans Affairs and seven times at the system’s appellate levels. Rather than accept another remand by the U.S. Court of Appeals for Veterans Claims (CAVC) for another review of her claim by the Board of Veterans Appeals, she and Reines appealed to the U.S. Court of Appeals for the Federal Circuit. They argued that when the record was complete and there was no bona fide issue for remand, the CAVC had the authority and the responsibility to make a final decision.

They lost in the Federal Circuit and now ask the Supreme Court in Byron v. Shinseki to end the constant cycle of remands—the hamster wheel of justice—that so many veterans endure.

Professor Fox, former dean of Catholic University of America Columbus School of Law, wrote and filed his first Supreme Court amicus brief in Lady Byron’s case. She also has drawn support from six of the nation’s major veterans’ organizations. Fox recently spoke with us about why he decided to file in this particular case.

Q: How did you get involved in veterans law? It really is not the main focus of your scholarship, is it?

A: I do administrative law and international business transactions and a few other things. I was an enlisted man in the U.S. Army. I came out with a 30 percent disability rating in 1966. I finished my undergraduate degree with what the VA calls vocational rehabilitation—a really nice benefit package—and then I used the GI bill to get to law school. When I finished Harvard Law School, I had three days left on the GI bill. I used every bit of it. I’ve been very much blessed by what the VA has given me.

But then I watched Congress set up this new court (CAVC) and pass the judicial review act back in the 1980s. I was so distracted by a number of other things that I didn’t keep in close touch. Then in 1994, the Paralyzed Veterans of America advertised for somebody to do a study of the CAVC. I decided it was time to get back in touch and I put in a proposal. The PVA gave me a grant to do what resulted in my book, which is now in the third edition [The Law of Veterans Benefits: Judicial Interpretation]. Since then, because there are so few law professors who take this up, I’ve been involved. But I get so emotional about this that I can’t do it full time.

Q: Why did you choose to write and file your own amicus brief and not join one of the others?

A: As you know, I’ve been writing and speaking on these issues for more than 20 years. This was the first opportunity I’ve had to make a few points directly to the Supreme Court. I had a chance to help out one or another of the veterans’ organizations, but I found that kind of cumbersome. I thought just this once I will make the points in my own name. I thought all of us together would probably do a good job discussing virtually all the issues in Mrs. Byron’s case.

Q: The petition focuses on the Federal Circuit’s alleged error—rejecting the “futility rule” by affirming the CAVC’s remand order in Lady Byron’s case. Your focus was different.

A.: The point I was trying to make is something I’ve been writing about for a number of years. It really goes back to the creation of the CAVC and how it was set up as a special, unique court of appeals. We really don’t have anything like it anywhere in the federal court system.

Congress set up this court to have exclusive jurisdiction over veterans’ claims, which meant the court was to become the expert in veteran disability claims. That is different from the Article III court, which is a generalist court. Right off the bat, the court was supposed to be specialized with expertise in a single type of administrative decision-making.

My second point is, given that, they shouldn’t restrict themselves to a lot of the constitutional limitations which we have imposed on Article III courts. As a consequence of being expert and having this unique jurisdiction, I believe the CAVC can and should exercise a lot more muscle in deciding veterans’ cases. They tragically have taken on a lot of the trappings of Article III courts and that has artificially restricted it in making final decisions.

I can understand the D.C. Circuit sending things back to an administrative agency. There are hundreds of cases telling Article III courts to defer to the expertise of administrative agencies. But in this particular case, I don’t think all that deference is necessary.

The whole point we’re trying to make in the Byron case is, if all you need to make a final decision is in the record, why not just decide it? If it’s in favor of the vet, fine; if it goes against the vet, so be it.

Q: In terms of the problem with the constant cycle of remands, you don’t see the Federal Circuit as the real problem. Instead, it’s the CAVC?

A: The Federal Circuit is not the problem in large part because the statutory limitations on its decision-making powers in veterans’ cases are so limited. Because of the limitations on its jurisdiction, it can’t look at any factual questions and is prohibited from looking at applications of fact to law. It can only can take pure law cases. There’s not much the Federal Circuit can do, so it is a factor.

What was clear when Congress set up the judicial review act, it wanted the cases to have at least one shot at an appeal. But Congress so short circuited federal review powers, it’s meaningless review. I’ve spoken about amending that part of the judicial review act and allowing the Federal Circuit to act as a review court and consider anything coming up in these cases.

Q: Given the exchange two years ago between Chief Justice Roberts and the government’s lawyer in the attorney fee case, do you think the Court is aware of how the benefit review system actually operates?

A: Not really. Over the now more than 20 years that we’ve had the CAVC, the Supreme Court has only taken three cases decided on full opinions. Three cases in 20 years suggests to me they don’t have much experience. I guess it suggests, for whatever reason, they’re comfortable with the way the lower courts have been handling these things. Obviously, the fewer cases the Supreme Court hears, the less they will know about that particular administrative process.

Q: And what about the merits of Lady Byron’s long pending claim?

A: In this particular case, the Federal Circuit is simply saying exactly what the CAVC said with regard to not wanting to make a final decision at the court level. But everything I’ve seen tells me everything necessary to make a final decision is in the record right this minute. If the court were to review the record under guidance of counsel, they can see the evidence is there and can make a decision. I believe the decision would be in favor of Mrs. Byron. It’s as good a case as I’ve seen to make the point the CAVC ought to decide this type of case.

Given her age and her own particular medical problems, I doubt she is going to benefit a lot from any of this. The government has gotten one extension of time to file a reply to her petition and could ask for another. The instant she dies, the case is dead. There is no survivorship in this type of case.

Marcia Coyle can be contacted at mcoyle@alm.com.