Vol. 39, Number 10 — October 2007

The U.S. Court of Appeals for the Federal Circuit—Could Rising Appeals Swamp the Court?

The U.S. Court of Appeals for the Federal Circuit is, in many ways, thriving. It has a full complement of 12 judges in regular active service and four active senior judges, all of whom are writing more opinions than ever before. And they have reduced their backlog of argued cases.

But a cloud threatens on the horizon.

A perfect storm of cases is building in certain courts and federal administrative boards whose decisions can be appealed to the Federal Circuit. In fiscal year 2006, filings in the Federal Circuit grew to the highest level since 2002, with increases in filings reported from eight of eleven sources of appeals. One of those sources is the U.S. Court of Appeals for Veterans Claims. Last year, the number of appeals to the Federal Circuit from that court increased 90 percent over the previous year.

This surge of veterans’ appeals stems from a substantial rise in the lower court’s own caseload. As of June 2007, the Court of Appeals for Veterans Claims received more filings than in any other two-quarter period in its 19-year history.

“My six fellow judges, five retired recall-eligible judges, and I are deciding about 300 appeals a month,” said Chief Judge William P. Greene, Jr., of the Court of Appeals for Veterans Claims. Cases come to his court from the Board of Veterans’ Appeals, which last year decided nearly 40,000 cases. Denials of benefits by the Board in 2006 totaled more than 18,000, nearly twice the number reported in 2004. “We estimate that our court receives about 10 percent of the total cases reviewed by the Board,” Greene said.

Most appeals to the Veterans Court are not related to current military conflicts. In fact, Greene says appeals are largely from decisions on VA claims by veterans of World War II, the Korean conflict and the Vietnam War. Once claims from current conflicts move into the system, he said, “The potential number of cases coming to the court could be astronomical.”

According to Chief Judge Paul R. Michel of the Court of Appeals for the Federal Circuit, veterans’ cases are now the third largest category of cases handled by his court—with patent cases in first place and government personnel cases in second place. He expects the number of veterans’ cases to increase sharply in the next few years. And, although recent decisions in several lead cases each led to the adjudication of dozens of pending veterans’ appeals, Michel doesn’t believe that the bulk of new cases will be so easily resolved.

“There are no broad rules to cover most of the appeals that are working their way to our court. The prospect is that they will require individual, case-by-case adjudication. They could, in fact, swamp our court before year’s end.”

And he anticipates another increase in the Federal Circuit’s caseload will come in approximately two years when claims from military members who served in either Iraq or Afghanistan arrive.

“Unlike our other cases, our court’s review in veterans’ cases is only on the interpretation of statutes or regulations. Some appeals will be dismissed because they raise factual issues. But the percentage is impossible to predict,” said Michel.

The Federal Circuit has a new mediation program to deal with some portion of these and other cases. The program is mandatory and rigorous. Two full-time mediators are assisted by 15 trained, pro bono mediator/attorneys. Michel credits the program with helping to maintain the speed and quality of decisions in the face of increasingly complex and numerous cases.

The court is currently at full strength, which allows more three judge panels to be scheduled each month. Since last September, visiting judges have also assisted each month and are scheduled through 2007 and 2008. According to Michel, the visiting judges like the experience they get, especially on the court’s many patent cases.

“These cases are very challenging,” he says. “Our visiting judges learn the different dimensions of patent cases—which helps them with such cases when they return to their home courts.”

Michel’s main concern is the court’s continuing ability to decide increasing numbers of appeals in a timely manner with consistently high quality. “It doesn’t pay to panic—at least not yet,” he says wryly.