Veteranclaims’s Blog

November 29, 2013

2012 Annual Report; United States Court of Appeals for Veterans Claims

The PDF form of this information is more readable, see http://www.veteranslawlibrary.com/files/CAVC_Annual_Reports/CAVC_FY_2012_Annual_Report.pdf
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2012 Annual Report

United States Court of Appeals for Veterans Claims
October 1, 2011 to September 2012 (Fiscal Year 2012)
Pursuant to 38 U.S.C. § 7288, the United States Court of Appeals for Veterans Claims(Court) submits the following report summarizing the workload of the Court for Fiscal Year (FY)2012.

1. The number of appeals filed with the Court: 3,649 (44% pro se at the time of filing)
2. The number of petitions filed with the Court: 154 (61% pro se at time of filing)
3. The number of applications filed with the Court under the Equal Access to Justice
Act (EAJA) section 2412 of title 28: 2,355
4. The total number of dispositions by each of the following for FY 2012:1
(A) The Court as a whole: 6,992 Appeals:
4,355 (27% pro se at time of disposition) Petitions: 144 (62% pro se at time of disposition) EAJA: 2,298
Requests for Reconsideration/Panel Decision:3 164 appeals, 31 petitions

(B) The Clerk of the Court:4 4,402
Appeals: 2,153
Petitions: 6
EAJA: 2,243
There were no Requests for Reconsideration of the Clerk’s orders.

(C) A single judge of the Court: 2,444
Appeals: 2,179
Petitions: 136
EAJA: 53
Requests for Reconsideration of a Single Judge Decision: 58 appeals, 18 petitions

1 “Dispositions” include each resolution of a matter, including decisions on appeals, petitions, EAJA applications, and requests for reconsideration/panel decision.

2 This number, which was first reported in this Court’s FY 2010 report, reflects additional workload
associated with requests for reconsideration and panel decision.

3 The number of requests for reconsideration by the Court as a whole, a single judge of the Court, a multijudge panel of the Court, and the full Court do not include reconsideration of EAJA decisions by the Court.

4 These actions generally include matters resolved through agreement of the parties, often with the aid of staff conferencing.
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(D) A multi-judge panel of the Court: 129
Appeals: 22
Petitions: 2
EAJA: 1
Requests for Panel Decision following a Single Judge Decision/Reconsideration: 94 appeals; 10 petitions

(E) The full Court: 17
Appeals: 1
Petitions: 0
EAJA: 1
Requests for Full Court Decision following a Panel Decision/Reconsideration: 12 appeals, 3 petitions

5. The number of each type of disposition by the Court, including settlement, affirmation, remand, vacation, dismissal, reversal, grant, and denial:
Total Clerk5 Single Judge 3 Judge Panel En Banc

APPEALS
Affirmed 1061 0 1,051 9 1
Affirmed or dismissed in part,reversed/vacated and
remanded in partn925 692 231 2 0
Reversed or vacated and remanded in whole or in part
616 0 610 6 0
Remanded 1008 996 9 3 0
Dismissed for lack of jurisdiction 281 4 275 2 0
Dismissed for default 241 240 1 0 0
Dismissed voluntarily 223 221 2 0 0
4,355 2,153 2,179 22 1

PETITIONS
Extraordinary relief granted 0 0 0 0 0
Extraordinary relief denied 70 0 70 0 0
Extraordinary relief dismissed 57 1 54 2 0
Dismissed for default 10 2 8 0 0
Dismissed voluntarily 7 3 4 0 0
144 6 136 2 0
5 Please see footnote 4.
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Total Clerk6 Single Judge 3 Judge Panel En Banc
EAJA on Appeals
Grant 2,267 2,233 33 1 0
Denied 13 0 13 0 0
Dismissed 17 10 6 0 1

EAJA on Petitions
Grant 0 0 0 0 0
Denied 1 0 1 0 0
Dismissed 0 0 0 0 0
2,298 2,243 53 1 1

6. The median time from filing an appeal to disposition (i.e., time from the veteran filing
an appeal until initial dispositive action of the Court) by each of the following:
(A) The Court as a whole: The median time from filing an appeal to disposition of the
case by the Court, as a whole, is 321 days (10.7 months). This involves pre-chambers
procedural activity which includes staff conferencing, record dispute resolution, briefing,
screening, and extensions of time for pro se appellants to seek counsel.
(B) The Clerk of the Court: The median time from filing an appeal to disposition of the
case by the Clerk is 183 days (6.1 months). This involves pre-chambers procedural activity
which includes staff conferencing, record dispute resolution, briefing, screening, and
extensions of time for pro se appellants to seek counsel.
(C) A single judge of the Court: The median time for disposition of a single judge
decision once it has been assigned to chambers is 49 days (1.6 months). The median time
from filing an appeal to disposition by a single judge, which includes pre-chambers
procedural activity, is 470 days (15.7 months). Pre-chambers procedural activity includes
staff conferencing, record dispute resolution, briefing, screening, and extensions of time for
pro se appellants to seek counsel.
(D) Multiple judges of the Court (including a multi-judge panel of the Court or the full
Court): The median time for disposition of a multi-judge panel decision once it has been
assigned to panel is 155 days (5.2 months). The median time from filing an appeal to
disposition by a multi-judge panel, which includes pre-chambers procedural activity, is 812
days (27.1 months). Pre-chambers procedural activity includes staff conferencing, record
dispute resolution, briefing, screening, and extensions of time for pro se appellants to seek
counsel. In addition, scheduling a case for oral argument, which adds a minimum of 45 days,
and additional time for supplemental briefing contribute to the time for case disposition.

6 The Clerk generally takes action on uncontested applications for attorney fees and expenses (EAJA).
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7. The median time from filing a petition to disposition by the Court: 44 days (1.5 months)

8. The median time from filing an application under section 2412 of title 28 to disposition
by the Court: 29 days (1 month)

9. The median time from the completion of briefing requirements by the parties to
disposition by the Court: 175 days (5.8 months) Note: This time includes approximately
two weeks to raise issues relating to finalizing the Record of Proceedings (a compilation of
all documents relevant to the appeal) in every case. If an objection to the Record of
Proceedings is filed, resolution can take several more weeks. Also, it takes 30 to 60 days for
cases to be screened by the Court’s Central Legal Staff.

10. The number of oral arguments before the Court: 18 (40 scheduled, 22 settled)

11. The number of cases appealed to the United States Court of Appeals for the Federal
Circuit: 188
Appeals: 161
Petitions: 23
EAJA: 4

12. The approximate number and status of appeals and petitions and EAJA applications
pending with the Court as of the end of such fiscal year:
Appeals and Petitions: 4,107
Pre-chambers procedural activity: 2,5917
Pending decision by a Judge or Panel: 398
Post decision: 1,1188
EAJA procedural activity: 329
EAJA pending decision by a Judge or Panel: 15
On appeal before the Federal Circuit: 135

13. The number of cases pending with the Court more than 18 months as of the end of such
fiscal year: 530 appeals
Pre-chambers procedural activity: 599
Pending decision by a Judge or Panel: 67
Post decision: 404

7 Pre-chambers procedural activity, which occurs during the period of time from filing an appeal to
assignment of the appeal to chambers, generally includes staff conferencing, record dispute resolution, briefing,
screening, and extensions of time for pro se appellants to seek counsel.

8 This number reflects cases pending during the time required for judgment, mandate, and EAJA (if
applicable) as well as cases on appeal to the Federal Circuit and the Supreme Court.

9 Delays associated with pre-chambers procedural activity are due primarily to parties’ requests for stays or
extensions of time.
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14. A summary of any service performed for the Court by a recalled retired judge of the
Court: Our recall retired (Senior) judges decided 600 appeals. In addition, our Senior
judges decided hundreds of motions, permitting the regular active judges to devote their time
to appeals, including those that raise more complex issues.

15. An assessment of the workload of each judge of the Court, including consideration of
the following:
(A) The time required of each judge for disposition of each type of case.
(B) The number of cases reviewed by the Court.
(C) The average workload of other Federal appellate judges.

As reflected in the responses to questions 1-14 above, each judge on the Court, regular active
and Senior judge, carries a substantial workload. In addition to rendering decisions on appeals,
petitions and related motions (e.g., procedural motions and motions for reconsideration or for panel
review), and applications filed pursuant to 28 U.S.C. § 2412 (EAJA), the Judges, through the Board
of Judges, provide general direction and oversight of the operations of the Court, and work on the
judicial conference and outreach and education issues.
In FY 2012, the Court averaged 244 appeals decided on the merits per active judge. For purposes of comparison using currently available data, from September 30, 2011, through September 30, 2012, for the 12 circuit courts of appeals,10 this was the second highest number of merits decisions per active judge. The number of merits decisions per active judge for those courts ranged from 51 (DC Circuit) to 282 (11th Circuit). As to the number of filings, the Court had 634 filings per active judge, based on the 3,803 appeals and petitions filed in FY 2012. The number of filings
per active judge for the circuit courts of appeals ranged from 149 (DC Circuit) to 700 (11th Circuit).
Further, two judicial rulings in 2011 had significant bearing on the FY 2012 workload of the
judges of this Court: the U.S. Supreme Court decision in Henderson v. Shinseki, 131 S. Ct. 1197
(2011), which held that the 120-day time limit to file a Notice of Appeal is not a jurisdictional
prerequisite to an appeal at this Court, though it is an important procedural rule; and the subsequent
decision of this Court in Bove v. Shinseki, 25 Vet. App. 136 (2011), which clarified that the 120-day
filing period is subject to the equitable tolling parameters of the precedential decisions on equitable tolling that preceded this Court’s now-overruled decision in Henderson v. Peake, 22 Vet. App. 217(2008).
In the interests of justice, the judges of the Court determined that the Court should consider
motions to recall mandate premised on equitable tolling arguments in those appeals that were
dismissed for untimely filing and lack of jurisdiction based on Henderson v. Peake. A carefully planned outreach to approximately 420 appellants whose appeals had been dismissed between July 24, 2008, and December 20, 2011, was put into effect. See Misc. No. 4-12, per curiam, February 7,
2012. As a result, approximately 138 motions to recall mandate were submitted to the Court. By
the close of FY 2012, the Court, through the effort of its 6 active judges, had addressed almost all
of the motions to recall mandate that had been submitted, with motions being granted (i.e., appeals
being reopened) in about 23 percent of the cases.
10 The Federal Circuit issued 90 decisions per active judge and had 126 filings per active judge during FY 2012, according to statistics from its website.
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