The National Law Journal
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Chief Justice 'Startled' by Government Errors in Veterans Cases

Marcia Coyle, February 24, 2010

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 Monday in Astrue v. Ratliff , an attorney fee case under the Equal Access to Justice Act [EAJA**], 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, 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."

This article first appeared on The BLT: The Blog of Legal Times .

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** NOTE: The “Equal Access To Justice Act” (EAJA) statistics that appear on the website of The United States Court Of Appeals For Veterans Claims ( http://www.uscourts.gov/CourtRecords.aspx ) reveal that the true rate of Veterans' cases wherein that Court determines that the Government's position is legally erroneous as well as not substantially justified is 71% of the cases.* * * * *