Larry Scott, VA Watchdog dot Org once again brings to our attention a situation that causes any veteran who has filed a claim to shake their head and wonder... why is it he did not yet know what is common knowledge among the veteran community: In litigating with veterans, the government more often than not takes a position that is substantially unjustified. How often? This 'unjustified positions taken percentage is over 50%, at least 70%, and could be as high as 90% depending who does the counting (the VA admits, "...in the order of either 50 or maybe slightly more than 50 percent. It might be 60"). First we 'hear' from Chief Justice Roberts, then from two practicing attorneys.

Roberts "Startled" By Government Errors in Vet Cases - Marcia Coyle - Legal Times

When he was in private practice at Hogan & Hartson, Chief Justice John Roberts Jr. did not handle veterans' benefits claims. So, he understandably found "startling" information with which lawyers for veterans are only too familiar: In litigating with veterans, the government more often than not takes a position that is substantially unjustified.

In oral arguments yesterday in Astrue v. Ratliff, an attorney fee case under the Equal Access to Justice Act, James Leach of Rapid City, S.D., told the Court that 42 percent of Social Security cases result in an EAJA attorney fee award.

"If it's 42 percent, that's quite a high number of cases in which the government's position is found substantially -- not substantially justified as well as legally erroneous," Leach said. "In veterans cases, it's even worse."

The U.S. Court of Appeals for Veterans Claims, which reports the number of EAJA awards granted annually, reported that for 2008 and 2009, he said, 70 percent resulted in fee awards, Leach told the justices.

When Assistant to the Solicitor General Anthony Yang got up for his rebuttal in the case, Roberts interrupted him and the exchange went like this:

ROBERTS: Counsel do you -- do you dispute your friend's statement that 42 percent of the time in Social Security cases the government's position is unjustified, and 70 percent of the time in veterans' cases?

YANG: Well, I think that reflects the stakes often, Your Honor. Oftentimes the government does not contest, for instance, the $2,000 EAJA award and because it's the government, has to -

ROBERTS: So whenever it really makes a difference, 70 percent of the time the government's position is substantially unjustified?

YANG: In cases in the VA context, the number's not quite that large, but is a substantial number of cases at the court of appeals -

ROBERTS: What number would you accept?

YANG: It was, I believe in the order of either 50 or maybe slightly more than 50 percent. It might be 60. But the number is substantial that you get a reversal, and in almost all of those cases EAJA -

ROBERTS: Well that's really startling, isn't it? In litigating with veterans, the government more often than not takes a position that is substantially unjustified?

YANG: It is an unfortunate number, Your Honor. And it is -- it's accurate.

Bart Stichman, co-executive director of the National Veterans Legal Services Program, said he thinks the percentage is greater than the government's number.

"That means the quality of decision making at the Board of Veterans Appeals is not very good," he said. "We've been saying that for years. The number means not only did they wrongly decide the case but their position wasn't substantially justified. Not too good."

Attorney #1

Mr. Chief Justice: Welcome to my side of the Looking Glass.

The response to your comments regarding the error rate in VA benefits adjudications among those of us who attend tea parties here has mostly been "duh" or "I am shocked" (ala Casablanca) depending on how just how old a hand he or she is.

Sadly, however, the number of EAJA [Equal Access to Justice Act] payments is only part of the story regarding unjustified legal positions. As you know, EAJA payments are (1) only paid to attorneys and (2) only paid when requested. As a result, the 70% number does not include the cases that were unjustified but argued by veterans without attorneys. In addition, EAJA is denied when the Veterans Court deems the error was not eligible for EAJA (how and why this exception has developed is for the Cheshire Cat – but it has happened to me).

Also, and most frustrating, is that "big" cases – the ones that really change things for veterans – rarely, if ever, get EAJA because the Court finds that Secretary "put up a good fight" even when the law and the facts were so bad that even the Veterans Court ruled against VA. So the attorneys putting the most time and effort into cases with the most importance get no payments, while attorneys pointing out obvious errors get EAJA fees (Alice where are you???). In any event, the actual numbers of cases where – by all rational measures - the Secretary should know that a denial is so wrong that no defense of it is justified are even higher than 70%.

What is most interesting to me is how all this became known to you. It is pretty obvious: EAJA is only paid to attorneys. The Secretary has to account to Congress for EAJA payments. So, all of a sudden the substance of VA's boasting about its "quality" of adjudications was exposed for what it is – spin.

Reluctant to believe the VA would really spin such basic information? Just compare the Veterans Court's accounting for remands, reversals, etc., to that of the Board. Go ahead, pick any year end reports and compare the numbers. According to the documents, the Court is remanding huge numbers of cases, but the Board is only having a small number of cases remanded?!?!. Ah, the magic of the Looking Glass.

Mr. Chief Justice, I'll bring the beer if you will sit down with Chief Judge Greene [U.S. Court of Appeals for Veterans' Claims] and Chairman Terry [Board of Veterans' Appeals] and run down the list of cases for, say, 2008, and work this all out. I am sure that it is all just an honest miscommunication that happens to be repeated year after year . . .

One last thought, Mr. Chief Justice, because I cannot afford to be late. Why is it that the Social Security Administration people do so much better (although admittedly still pretty badly) at adjudicating claims. Could it be that SSA claimants have access to attorneys when they want them so SSA is more reluctant to try and jam baseless decisions through the system?? Hmmm???

Maybe if VA has to pay a claimant's fees EVERY time a vet is forced to hire a lawyer and prevails things might tighten up just a bit.

Thank you for your time, Mr. Chief Justice. And feel free to contact me should you find yourself involved in a veteran's benefits case – everybody needs help navigating the VA system the first couple of times. . . .

Attorney #2

A baseline number for the VA error rate is around 80% which reflects the CAVC's reported affirmance rate. This means that of the small percentage of cases which are appealed (many claims are just abandoned by veterans who become frustrated), the Court reports that it agrees with the VA only about 20% of the time. To calculate the true error rate of appealed claims it is necessary to add the large percentage of cases in which the VA concedes error in a Joint Motion for Remand. Appeals resolved by JMRs are not considered in the Court's annual report and would bring the VA's error rate to well over 90%.

Chief Justice Roberts should not be surprised by the idea that VA decisions are frequently the result of errors. Aside from the media coverage of the poor decision making by the VA, the Supreme Court has recently dealt with errors in VA decisions. In the April 2009 opinion in the Sanders and Simmons cases the Supreme Court gave the VA a license to commit errors. There the Supreme Court decided that the VA's errors cannot be considered by a Court unless the veteran proves to a Court that the error resulted in prejudice to the veteran.

--- Regards, Walt Schmidt