VA ADMINISTRATIVE PROCEDURE AND JUDICIAL REVIEW ACT FRIDAY, JUNE 3, 1977 U.S. SENATE, COMMITTEE ON VETERANS' AFFAIRS, San Francisco, Calif. The Committee met pursuant to notice, at 9 a.m., in the ceremonial courtroom, Federal Building, 450 Golden Gate Avenue, San Francisco, Calif., Hon. Alan Cranston (chairman) presiding. Present: Hon. Alan Cranston of California, chairman. OPENING STATEMENT OF HON. ALAN CRANSTON, CHAIRMAN OF THE SENATE COMMITTEE ON VETERANS' AFFAIRS Chairman CRANSTON. The hearing will please come to order. This is a hearing of the Senate Committee on Veterans' Affairs. Good morning and welcome to each and all of you that are present. Today the Senate Committee on Veterans' Affairs will hear testimony on S. 364, the Veterans' Administration Administrative Procedure and Judicial Review Act. Introduced by Senator Gary Hart of Colorado, the bill would provide for judicial review of final decisions made by the Administrator of Veterans' Affairs. In addition, S. 364 would require that all rules, regulations, orders, and any other determinations of any kind made by the Administrator of Veterans' Affairs be subject to the public notification and comment provisions of the Administrative Procedure Act. Finally, Senator Hart's measure would repeal the current $10 statutory limitation on the fee which an attorney may receive in connection with a claim for monetary veterans' benefits. Although this bill is short in length, it is long on significance and ramifications. Section 211(a) of title 38 of the United States Code provides that the "decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise." This preclusion of judicial review is stated as clearly and conclusively as words will allow. Indeed, administrative law expert Kenneth Culp Davis described section 211(a) as "the clearest form of statutory preclusion." The questions whether and to what extent provisions should be made for judicial review of final Veterans' Administration decisions is by no means a new one. As recently noted by Justice Brennan in Johnson v. Robison, "(Preclusion of) review clauses similar to section 211(a) have been a part of veterans' benefits since 1933." Proposals to amend this bar against judicial review have been introduced in just about every Congress since that date. Thus, we are today faced with old but nonetheless vitally current and important questions. A critic of section 211(a) and supporter of the Hart bill, Prof. Robert Rabin of Stanford University put it this way in a recent article on judicial review: Can it be justified today for the VA to "stand in splendid isolation as the single Federal agency whose major functions are explicitly insulated from judicial review." This issue is not an easy one to decide. Regardless of which direction we turn, there are questions. Overall, the Veterans' Administration has performed with fairness and compassion its mission of service to those who have borne the battle and to their spouses and survivors. The agency was constituted to serve veterans, and, in general, has been a friend and helper to the veteran. On the other hand, the Veterans' Administration is a large Government agency, accountable for its $20 billion of expenditures to the taxpayers. With over 220,000 employees, it is, with the exception of the Department of Defense, the largest governmental department or agency, and it serves many millions of veterans, their spouses, and their children. Annually hundreds of thousands of veterans, survivors, and dependents apply for benefits and the VA must act on each application. Each year many applications are denied and appeals are taken from such denials. In fiscal year 1976, for example, 53,073 such appeals were filed. Unfortunately, no matter how effectively an agency may be managed, injustices will inevitably occur. However, this realization should not inhibit us from attempting in every reasonable and practical way to structure the VA in order to assure that all who may be entitled to benefits will receive prompt, equitable, fair, and considerate treatment in seeking those benefits. Whether provision for judicial review is a necessary and desirable means for achieving those goals, is a question that this legislation asks, and one that this committee, charged with responsibility for veterans and their dependents, must consider. There are other important questions before us today. The issue pertaining to the limitation on attorney's fees is an age-old one. Originally adopted by Congress to protect veterans who have available to them in most instances competent, experienced, dedicated veterans service officers to assist them in their claims before the VA, the law currently limits attorney fees to $10. It is contended that this limitation may have the practical effect of preventing many veterans from obtaining the assistance of attorneys of their own choosing. Whether this limitation continues to serve its original purpose of protecting veterans must be examined. In addition, the related question of recognition-that is, the question of who may represent veterans in the VA appeals process-is a part of this consideration. In sum, we have a challenging job before us. For my part, I have no firm preconceived notions of the answers to these questions. My aim today is to listen with care to those who will be testifying. We will gather information which should assist me and the whole committee in dealing with the questions which the bill under consideration, S. 364, raises. My ultimate goals are simple-I want all veterans to be served with compassion, fairness, and efficiency; and I want each individual veteran to receive from our Government every benefit and service to which he or she may be entitled. Last fall, Senator Hart graciously refrained from offering this measure as an amendment to the 1976 GI Bill amendments after then Chairman Hartke promised that comprehensive hearings would be held. I am more than pleased to be able to honor that commitment to Senator Hart. I also wish to announce at this time the schedule for further hearings on the issue. Field hearings will also be held in Pensacola, Fla., on August 24, and Columbia, S.C. on August 30. Finally, on September 21, the Committee will hold hearings in Washington, D.C., at which time we will hear from the Veterans' Administration as to their position on this very complex and important matter. These are the first congressional hearings on judicial review held since 1963, and the first hearings on judicial review ever held by the Senate Committee on Veterans' Affairs. We have an extensive witness list. I will ask some of you to appear as part of a panel. I look forward to hearing from each one of you. Senator Hart is not with us today. However, a representative from his office, Bill Holen, has come from Denver. I would also like to introduce Gary Crawford, a staff member of the committee on the minority side. Mr. Crawford has provided valuable assistance in helping us to prepare for this hearing. [The text of the bill, S. 364, previously referred to, and a VA agency report thereon, and the text of S. 2263 follow:] 95TH CONGRESS 1ST SESSION S. 364 IN THE SENATE OF THE UNITED STATES JANUARY 19, 1977 Mr. HART (for himself, Mr. BUMPERS, Mr. HASKELL, and Mr. McGOVERN) introduced the following bill; which was read twice and referred to the Committee on Veterans' Affairs A BILL To provide for judicial review of administrative determinations made by the Administrator of the Veterans' Administration; to apply the provisions of chapter 5 of title 5, United States Code, to the rules, regulations, and orders of the Veterans' Administration; to provide for the use of a reasonable fee for attorneys in rendering legal assistance to veterans with claims before the Veterans' Administration; and for other purposes. 1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 That this Act may be cited as the "Veterans' Administra4 tion Administrative Procedure and Judicial Review Act". 5 SEC. 2. Section 211 (a) of title 38, United States Code, 6 is amended by striking out after "shall be" all that follows 2 1 through the end of such subsection and inserting in lieu 2 thereof the following: "subject to judicial review as provided 3 in chapter 7 of title 5.". 4 SEC. 3. Notwithstanding any other provision of law, all 5 rules, regulations, orders, and any other determination of 6 any kind made by the Administrator of the Veterans' Ad 7 ministration or his delegate shall be subject to the provisions 8 of chapter 5 of title 5, United States Code. 9 SEC. 4. Section 3404 (c) of title 38, United States Code, 10 is hereby repealed. |