In a previous blog post, we discussed the Court of Appeals for Veterans Claims (CAVC) in general—what it is, how it differs from the rest of the VA, how long the process takes, etc. This post is going to take you step by step through the second half of the actual appeal process at the Court.
As explained in the first part of this blog series, a telephone conference (CLS conference) is scheduled early on in the case and is attended by the Veteran’s attorney and the attorney representing the Secretary. This conference gives the attorneys an opportunity to discuss the issues at hand, and, if possible, come to an agreement.
If the CLS conference does not produce an agreement, the Veteran has 30 days from the date of the conference to file the opening brief. This brief is essentially the argument(s) which we want the Court to consider in adjudicating the case.
Once the Veteran has filed the opening brief, the attorney for the Secretary has 30 days to file a rebuttal brief. As with the opening brief, the Secretary may request—and is usually granted—a 60-day extension to file the brief. After the Secretary brief has been filed, the Veteran has 14 days to submit a reply brief. The Veteran may request a 45 day extension to file this brief as well.
The Record of Proceedings
After all the briefs have been filed, the Secretary has the responsibility to file the Record of Proceedings (ROP) for the judge to review. The ROP is a compilation of all the documents relevant to the appeal, including the BVA decision, any document from the RBA cited in the briefs, and any other relevant documents. The ROP must be filed within 14 days of the receipt of the Veteran’s reply brief. The Veteran’s attorney may review the ROP to ensure that all relevant documents were included.
The CAVC’s Central Legal Staff (CLS) is responsible for handling the case after the ROP has been filed. The CLS receives the briefs and the ROP, and prepares a memorandum discussing the issues and including a possible disposition. Then the Clerk of the Court assigns the case to a screening judge for review.
The screening judge reviews the appeal and decides if the appeal requires a single-judge decision, a panel decision, or an en banc review. If the appeal warrants a single-judge decision, the screening judge will decide the case him/herself. If the appeal requires a panel decision (extremely rare cases), the judge will request that the Clerk create a panel of three judges, the screening judge being included in this panel. The panel determines whether or not an oral argument is necessary for the case.
The most common type of CAVC decision is a single-judge memorandum decision. Regardless of whether the appeal is being decided by a single judge or a panel, the decision will typically be a remand or a denial. A CAVC decision granting the case is extremely rare.
The Memorandum Decision issued by the judge will either deny or remand the case. If the judge denies the case, the appeal may be brought before the Federal Circuit—but only under very specific circumstances. If the case does not meet the requirements for a Federal Circuit review, an appeal is impossible and the case is permanently closed. The claimant may choose to reopen the claim at a later date with new and material evidence, and start the process all over again with the Regional Office.
If the Memorandum Decision is a remand, the case is returned to the BVA with a set of instructions which the BVA must follow in revisiting the case. These instructions might include orders to obtain a new Compensation and Pension exam, additional medical records, deck logs, service records, etc. The Court decision may also instruct the BVA to correctly apply a previously misapplied or ignored regulation or statute.
Once a decision has been made on the appeal, the Veteran has 21 days to file a Motion for Reconsideration. Once this time period has expired, the Clerk of Courts issues the judgment, which begins the 60-day period in which the Veteran or the Secretary may file an appeal to the Federal Circuit. When the 60 days expire, the mandate is issued. The mandate finalizes the judgment and signals the return of the case to the Board for the necessary actions (if the decision was a remand). The issuance of the mandate also signals the 30 day time frame in which the application for attorneys’ fees and expenses may be filed. The U.S. government pays the attorneys’ fees and expenses for the prevailing party under the Equal Access to Justice Act (EAJA). EAJA ensures that all parties have access to the ability to bring a case before the US government, not just before the VA. In the case of a remand, the prevailing party would be the Veteran. In the case of a denial, the prevailing party would be the Secretary.
When the EAJA application is filed, the Secretary attorney handling the appeal for the Court issues a response within 30 days. Usually this response is filed to inform the Court that the Secretary has no objection to the amount of fees and/or reimbursement for expenses. The Clerk of the Court will then issue an award of the EAJA fees within 14 days of the Secretary’s response. However, if the Secretary determines that the fees and reimbursement for expenses are excessive, the Clerk will not approve the application, and the application will have to be amended.
Once the EAJA mandate has been issued, the payment takes 60 to 90 days to be processed. The Court will issue an order to close the case shortly after the EAJA mandate has been filed.
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