United States Court of Appeals for Veterans Claims comes to Harvard Law School

The Latest from HLS Clinical Programs 2013-10-31

L-R: Christopher Melendez (2L), Brad Hinshelwood (3L), Juan Arguello (2L)

For the first time in its history, today Harvard Law School hosted the U.S. Court of Appeals for Veterans’ Claims (CAVC). The CAVC is a court of national jurisdiction based in Washington, D.C., with authority to sit anywhere in the United States. Notably, this morning’s oral argument in the Ames Courtroom represents one of only two instances in the Court’s history that law students have presented oral argument to the Court. Harvard Law students Brad Hinshelwood (3L) and Christopher Melendez (2L)—participants in the HLS Veterans Legal Clinic—presented oral argument on behalf of client Lieutenant Colonel William Ausmer in the case Ausmer v. Shinseki. HLS 2L Juan Arguello is also on the Ausmer legal team, as were 3L Abigail Dwyer Matltz and Michael Lieberman ’13 during the prior semester’s Veterans Legal Clinic.

Importantly, the Court of Appeals for Veterans Claims is not part of the Department of Veterans Affairs or the Veterans Administration (VA). Rather, the Court was created in 1988 to provide independent judicial review of final decisions given by Veterans Law Judges on the Board of Veterans’ Appeals (BVA). BVA decisions represent final determinations at the agency level. These agency determinations were not subject to independent judicial review before the creation of the CAVC in 1988, as VA had heretofore operated virtually free of judicial oversight.

At the agency level, up until a case is appealed to the CAVC, proceedings are not adversarial in nature. Indeed, the VA has a “duty to assist” each veteran filing a new claim and appealing a decision at the agency level. When a veteran chooses to appeal the final agency determination issued by the BVA, he or she is bringing a legal action against the Secretary of Veterans Affairs. The Court—either as a single judge, a three-judge panel, or sitting en banc—reviews the BVA decision, the written record, the briefs of the parties. Occasionally the Court will allow (or require) oral argument for cases which present novel questions on potentially precedential issues.

Today, HLS students advocated on behalf of LTC Ausmer on the question of whether LTC Ausmer (the appellant), who was serving in Afghanistan when the Board of Veteran’s Appeals (Board) mailed notice of its decision to his home address stateside, is entitled to statutory and equitable tolling of the 120-day period to file a Notice of Appeal at the U.S. Court of Appeals for Veterans Claim. The HLS students also argued that tolling isn’t required at all if the Court finds that VA provided inadequate notice to LTC Ausmer of his procedural rights and/or improper notice of the underlying decision. The Board of Veterans’ Appeals denied LTC Ausmer’s claim for disability benefits for an injury to his lower extremities, but the decision was handed down while he was serving in Afghanistan, and he was unable to pursue his right to appeal until after he returned from his deployment and readjusted to civilian life—after the appeal deadline has passed. The Court is expected to issue its decision in Ausmer v. Shinseki in the coming months.

At the conclusion of oral argument—with the Court in recess—the three CAVC judges returned to Ames Courtroom to participate in a lively question & answer session with event attendees. The judges were able to field many interesting questions concerning the Court’s approach to the unique issues facing veterans. In conclusion, the judges expressed enthusiasm toward further development of clinics and pro bono practices which serve the needs of our country’s service men and women.