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Due process and the American veteran: What the constitution can tell us about the veterans' benefits system
Abstract
There are currently over 23 million veterans in the United States. Last year alone, the United States paid over $41 billion in benefits related to injuries or death associated with veterans’ military service. This number will only increase as the nation deals with the injuries that the men and women who serve in the military return home from missions in places such as Iraq, Afghanistan, Libya and elsewhere. This commitment to veterans is long standing and is perhaps best captured by President Lincoln’s statement in his second inaugural address that the country has an obligation “to care for him who shall have borne the battle and for his widow and his orphan.”Given this national commitment to veterans, it is odd that until 1988, veterans who believed that they were wrongly denied benefits to which they were entitled had no recourse outside of an administrative process. There was no judicial review. This changed with the Veterans Judicial Review Act of 1988 (the “VJRA”). In the VJRA Congress created an Article I court, today called the United States Court of Appeals for Veterans Claims (the “CAVC”). This Court is an appellate body independent of the Department of Veterans Affairs. As Congress recently recognized, the CAVC is the busiest federal appellate court in terms of cases decided per judge. Decisions of the CAVC are reviewed by the United States Court of Appeals for the Federal Circuit.Congress did not, however, replace the administrative system in which veterans are awarded benefits. That system administered by the Department of Veterans Affairs (the “VA”), the second largest cabinet agency, remains in place. Instead, it grafted judicial review onto that system. The interesting thing is that, as the Supreme Court recognized as recently as March of this year, the administrative is purportedly one that is non-adversarial and pro-claimant. Thus, the system by which veterans are awarded benefits is one that is an amalgam of a non-adversarial administrative process followed by a traditional, adversarial judicial review process.This Article concerns a recent decision of the Federal Circuit, Cushman v. Shinseki. In Cushman, the Federal Circuit held that applicants for veterans’ benefits have protected property interests entitling them to the protections of the Due Process Clause. The Article does not critique Cushman. Rather, it takes that decision as correct. Instead, the Article considers the potential impact that decision has on a process that affects so many Americans.Section I describes the current structure by which veterans’ benefits are awarded and reviewed. An understanding of that structure, and how it was assembled, is critical to an appreciation of Cushman’s impact. After describing the relevant features of the benefits system, Section II then discusses Cushman and decisions of the Federal Circuit and the CAVC applying that case’s rule.Sections III and IV turn to Cushman’s implications. Section III discusses the ways in which Cushman has the potential to alter the functions of the various actors in the process, including the VA adjudicators, the CAVC and the Federal Circuit. Cushman has the potential to affect how each level of the process of adjudication and review of benefits determinations is conducted. In addition, Section III considers how Cushman could affect both how the procedures of the system are developed as well as how veterans approach their claims. Section IV turns to a more conceptual matter. Specifically, it considers what Cushman and its holding reveal about the fundamental nature of the system by which veterans’ benefits determinations are made. Cushman forces one to address the critical question of whether the VA administrative system remains truly non-adversarial. That basic question remains a controversial one. Cushman’s due process holding both reveals the uncertainty in the area as well as provides an opportunity to address this critically important matter head-on. Section V is a brief conclusion, including some preliminary thoughts for ways to improve the system suggested by reflections on Cushman.
One-size-fits-all procedural safeguards are becoming increasingly suspect under the Due Process Clause. Although the precise requirements of due process vary from context to context, the Supreme Court has held that, within any particular context, the Due Process Clause merely requires one-size-fits-all procedures that are designed according to the needs of the average or typical person using the procedures. As the Court explained when announcing the modern approach to procedural due process in Mathews v. Eldridge, the due process calculus must be focused on "the generality of cases, not the rare exceptions." A more granular approach to due process rules, the Court emphasized in a series of rulings between 1976 and 1985, would place an undue administrative and financial burden on the government. This aspect of procedural due process law no longer matches the on-the-ground realities of many procedural regimes. In recent years, the space between "the generality of cases" and "the rare exceptions" has become populated with subgroups of individuals whose procedural needs are different from those of the typical individual. Whether due to subgroup members' capacities and circumstances, their stronger stake in the proceedings, or their unusually complex cases, subgroup members forced to rely on one-size-fits-all procedures may be deprived of truly meaningful procedural safeguards. At the same time, in ways that were unimaginable just a couple of decades ago, technological developments have enabled government agencies to identify and accommodate subgroup members at a comparatively small additional cost. Based on these developments and the inherently flexible nature of due process, it is time to move beyond the Court's narrow focus on "the generality of cases" and its preference for one-size-fits-all procedural rules. To be sure, not every subgroup warrants additional procedural safeguards. However, rather than dismissing subgroup members as "rare exceptions" unworthy of procedural accommodation, courts should evaluate the due process rights of subgroups under the traditional Mathews balancing test. This refinement of due process doctrine is necessary to ensure that members of due process subgroups and not just average or typical individuals are afforded the fundamentally fair procedural protections guaranteed by the Due Process Clause.
Until 1988, veterans who believed that they were wrongly denied benefits to which they were entitled had no recourse outside of an administrative process. There was no judicial review. This changed with the Veterans Judicial Review Act of 1988 (the "VJRA"). In the VJRA Congress created an Article I court, today called the United States Court of Appeals for Veterans Claims (the "Veterans Court"). This Court is an appellate body independent of the Department of Veterans Affairs. It has seven judges who are appointed to fifteen year terms. As Congress recently recognized, the Veterans Court is one of the busiest of all federal appellate courts. This year, the Veterans Court is celebrating its twentieth anniversary. This Article proposes that Congress create a commission to study the effect of judicial review over the past two decades as well as propose specific changes to the system that the Commission considers necessary. Such a commission is highly timely. The number of persons entitled to receive some form of veterans' benefit is growing. We have hundreds of thousands of American service members in harm's way. And we now know from news reports and the Dole-Shalala Commission that there are serious problems with the veterans health care system. The Veterans Court's twentieth anniversary provides a perfect opportunity to take stock. After a brief introduction, the Article proceeds in four parts. Part I describes the current process for obtaining veterans' benefits and, in particular, the procedures by which disputes concerning such benefit determinations are adjudicated and reviewed. After outlining the current structure of benefits determinations and judicial review, this Part considers the success and shortcomings of the endeavor over the past two decades. Having set the current stage, Part II articulates an approach for evaluating judicial review in this area including the role of the Veterans Court. It begins by explaining why such a review is warranted even if one assumes that the current structure is functioning well. It then proceeds to call for the creation of a commission appointed by either Congress or the President to conduct a full review of veterans' benefits determinations and their review. This proposed commission would include representatives of all relevant constituencies and be charged with making specific proposals to address problems in the system and to secure perceived successes. Ideally, the commission would also propose specific legislation to address any problems it identifies. In Part III, I preview some of the courses of action open to the commission the Article proposes. The goal of this Part is not to advocate for a particular approach, although several possibilities are ruled out. Rather, Part III is designed to start the discussion that I hope will continue if a commission is convened. Part IV is a brief conclusion. It acknowledges the political difficulties associated with any change to the current system but ultimately argues that the stakes are too high not to move ahead.