COST ESTIMATE In compliance with paragraph 11(a) of rule XXVI of the Standing Rules of the Senate, the Committee, based on information supplied by the Congressional Budget Office (CBO), estimates that the costs resulting from the enactment of the Committee bill (as compared to costs under current law), as scored against the current CBO baseline during the remainder of fiscal year 1994 and for the first four full years following the year of enactment, would be insignificant. The cost estimate provided by CBO follows: U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, November 9, 1993. Hon. JOHN D. ROCKEFELLER IV, Chairman, Committee on Veterans' Affairs, DEAR MR. CHAIRMAN: The Congressional Budget Office has reviewed the revised version of S. 1546, the Court of Appeals Improvement Act of 1993. This bill was ordered reported by the Senate Committee on Veterans' Affairs, November 3, 1993. On November 4, 1993, CBO provided the Committee with a cost estimate of an earlier version of S. 1546, which was estimated to increase direct spending by less than $500,000 a year. The provision that would have increased direct spending has since been deleted from the bill. S. 1546, as ordered reported by the Committee, would not affect direct spending or receipts. Therefore, pay-as-yougo procedures would not apply to this bill. S. 1546 would have a negligible effect on federal discretionary spending. The bill would change administrative procedures of the court, but it would not significantly increase the court's operating costs. The budgets of state and local governments would also be unaffected by enactment of this measure. If you would like further details on this estimate, we will be pleased to provide them. The CBO staff contact is K.W. Shepherd. Sincerely, ROBERT D. REISCHAUER, Director. REGULATORY IMPACT STATEMENT In compliance with paragraph 11(b) of rule XXVI of the Standing Rules of the Senate, the Committee on Veterans' Affairs has made an evaluation of the regulatory impact which would be incurred in carrying out the Committee bill. The Committee finds that the Committee bill would not entail any significant regulation of the individuals or businesses or result in any significant impact on the personal privacy of any individuals and that the paperwork resulting from enactment would be minimal. TABULATION OF VOTES CAST IN COMMITTEE In compliance with paragraph 7 of rule XXVI of the Standing Rules of the Senate, the following is a tabulation of votes cast in person or by proxy by members of the Committee on Veterans' Affairs at a November 3, 1993, meeting. On that date, the Committee voted by voice to report S. 1546 favorably to the Senate with an amendment, proposed by Mr. Rockefeller, in the nature of a substitute. AGENCY REPORTS On October 25, 1993, the Committee Chairman asked the Secretary of Veterans Affairs for a report setting forth the Department's views on S. 1546. As of the date of filing this report, a report on the Department's views had not been received by the Committee. On October 25, 1993, the Committee Chairman asked the Chief Judge of the United States Court of Veterans Appeals for a report reflecting the Court's views on S. 1546. On November 2, 1993, Chief Judge Nebeker responded and his letter with attachments is reprinted below as the Court's response concerning this bill: U.S. COURT OF VETERANS APPEALS, November 2, 1993. Hon. JOHN D. ROCKEFELLER IV, DEAR MR. CHAIRMAN: I am writing in response to your letter of October 25, 1993, requesting the Court's comments on the provisions of S. 1546. I am limiting these comments to sections 3 and 4 of the bill, because passage of these provisions would directly affect the Court's workload. Sections 2 and 5 deal with policy matters that are strictly within the province of the Congress and the President, and I will accordingly not address the provisions in these two sections. Section 3 of the bill would establish the date of postmark as the date of receipt of a notice of appeal to this Court. I enclose, for your convenience, my July 10, 1992, letter to Senator Cranston, your predecessor as Chairman, in reference to S. 2974, which contained a similar provision. I also enclose a copy of the attachment to my July 10 letter, a memorandum on the "Mail Box Rule," prepared by Legal Counsel to the Court's Clerk. I incorporate here by reference my comments concerning section 2 of S. 2974, to the extent they are also applicable to section 3 of S. 1546. I note that the provision of proposed section 3 which would amend section 7266(a)(4) of title 38 addresses illegibility, making this Court's determination unreviewable by any other Court. A determination as to legibility may present technical difficulties and result in differences between individuals at the Court responsible for making the determination. The Court would be required to develop internal operating procedures to resolve such differences, and would need to develop a body of case law to apply to postmark-related issues. It is questionable whether the number of prospective appellants who would benefit by this provision would outweigh the judicial resources and Court staff that would need to be directed to deciding jurisdictional issues where legibility or origin of a postmark is the crucial factor. In addition, proposed section 3 does not provide that the envelope containing the notice of appeal must be properly addressed to the Court. For example, many veterans have sent the notice of appeal to the Department of Veterans Affairs, State veterans departments, or veterans service organizations. This is despite the Secretary's notice of appeal rights, which gives the Court's address. Envelopes that are not properly addressed may arrive at the Court months, or even years after mailing. This factor would call into question the finality of Board of Veterans' Appeals decisions for an indefinite period. Finality would certainly be doubtful after the 120-day appeal period to the Court had passed, contrary to what is now the case. Under proposed section 3, the period during which a Board decision could be stripped of its apparent finality by appeal to the Court would become open ended. The potential impact of this amendment on the Department could be substantial. Section 4 of S. 1546 would extend the jurisdiction of the Court to permit review of cases where the Board's decision was issued on or after November 18, 1988, and would eliminate the jurisdictional bar now applying to such cases where a notice of disagreement was filed prior to that date. Again, I incorporate by reference my July 10, 1992, comments to Senator Cranston addressing the corresponding provision of S. 2974. I note that, at the time S. 2974 was under consideration, the Department provided estimates concerning the number of cases that would be affected by this change in the Court's jurisdiction. In his testimony, Acting Secretary Principi estimated that 62,019 additional Board decisions would become eligible for review by the Court. Based on the Department's past experience concerning the percentage of these decisions that would be appealed to the Court, Acting Secretary Principi estimated that the Court would receive at least 3,243 new appeals as a result of this proposed legislation. With the protracted 180-day appeal period and publicity by veterans service organizations, it is likely that the number of new appeals to the Court would be considerably higher than the Department's estimate. The Court's best estimate as to the impact of proposed section 4, and the appeals it would permit is based on the knowledge that these Board decisions were rendered before the Court's case law developed. These decisions were written at a time when an appeal to this Court was not possible and provisions of the Veterans' Judicial Review Act were not effectively applicable. On such matters as statement of adequate reasons or bases, duty to assist, and reopening on new and material evidence, there would be a high likelihood of retroactive error in the Board's decisions. Thus, passage of section 4 would result in the wholesale vacating of Board decisions and remands for readjudication of the thousands of appeals that this section would permit. The amendment would provide for nearly automatic reopening and readjudication of those many claims without new and material evidence being submitted, and contrary to established principles of finality and repose. I appreciate having had this opportunity to comment on the proposed legislation. Sincerely, FRANK Q. NEBEKER, Chief Judge. Hon. ALAN CRANSTON, U.S. COURT OF VETERANS APPEALS, Chairman, Committee on Veterans Affairs, DEAR MR. CHAIRMAN: I have your letter of yesterday, July 9, 1992, in which you invite me to testify on July 22, 1992, at a hearing on S. 2974. Since the aspects of this bill on which I may appropriately comment, that is, Sections 2, 3, and 4, are relatively straightforward, it is my belief that it is better for me to confine my comments on behalf of the Court to this written response. Section 2 of the bill would impose a postmark date as the date of receipt of a notice of appeal. The Court has considered the arguments for and against such a rule both in its rule making proceedings, and in DiDonato v. Derwinski, 2 Vet.App. 42 (1991) (per curiam order), and opted against such a provision. It is noted that Section 2 of the bill would legislate the views of the separately concurring judge in that case. See also Bole v. Derwinski, 2 Vet.App. 198 (1992) (single-judge published order); Minshall v. Derwinski, 2 Vet.App. 218 (1992) (single-judge published order); Langston v. Derwinski, 1 Vet.App. 239 (1991) (single-judge published order). I might add that one of the reasons the Court and its Rules Advisory Committee rejected a postmark date rule is that many postmarks are illegible thus making it impossible to determine the critical date. In addition, I invite your attention to another dilemma created by a postmark rule. The Court is presently in receipt of a notice of appeal which was forwarded to the Court by the appellant's congressional representative. It was sent in a franked envelope bearing no postmark date. The proposed legislation fails to address the situation where a notice of appeal has been mailed, but the postmark is missing or illegible. Similarly, commonly used postal meters are not always dependable as to the date they imprint in lieu of a postmark. Section 3 of the bill dealing with judicial disciplinary procedures has been the subject of earlier correspondence. Consistent with the views of the Court expressed therein, the Court supports enactment of Section 3. Section 4 of the Bill would extend the jurisdiction of the Court to permit review of cases where the Board of Veterans' Appeals decision was issued on or after November 18, 1988, and would eliminate the jurisdictional bar now applying to such cases where a notice of disagreement was filed prior to that date. I am not in a position to estimate the number of additional appeals this change would add to the calendar of the Court but a conservative guess might be around 1,500. I am sure you will hear the views of the Secretary of the Department of Veterans Affairs on his estimate as to the number of individuals who could be affected by this amendment and the difficulties attendant upon the notification requirement imposed upon him by the bill. I am sending under separate cover a copy of a memorandum i dated July 9, 1992, from Counsel to the Clerk which I believe you may find useful in connection with this issue. Sincerely, FRANK Q. NEBEKER, Chief Judge. MEMORANDUM FOR THE CLERK OF THE COURT Subject: Proposed Amendment of VJRA to Incorporate "Mail Box Rule" for Filing NOAS From: Mike Carmichael, Legal Counsel to the Clerk; prepared 7/9/ 92 1. Purpose. By an entry in the Congressional Record (daily ed. July 2, 1992) (statement of Sen. Cranston), the Court learned of the introduction of S. 2974, a bill to amend the Veteran's Judicial Review Act (VJRA). The Clerk of the Court, reacting to the entry, requested preparation of a memorandum addressing section 2 of the bill, which would substitute a postmark rule for the physical delivery rule presently used by the Court in determining whether an appeal is timely filed. Paragraphs 2 through 5 of the memorandum are technical in nature and review the requirements of various federal circuits, as well as specialized federal courts, for filing notices of appeal. Paragraph 6 provides an overview of the existing requirements for filing a Notice of Appeal with this Court. Finally, Paragraph 7 concludes that the Court's physical delivery rule is preferable to the proposed postmark rule in S. 2974. 2. Proposed Amendment.-Section 2 of S. 2974, a bill to amend title 38, United States Code, introduced by Senator Cranston, would establish a "mail box rule" for determining whether a Notice of Appeal is timely filed with this Court. If an envelope containing a Notice of Appeal is postmarked within the prescribed 120-day period for filing an appeal, the appeal would be timely filed under the amendment even though physically received by the Court beyond the 120 days. The reasons offered in support of this amendment are that the Court's present rule that an appeal is filed on the date it is physically received (a) is unnecessarily restrictive, (b) favors appellants living closer to the Court because they receive mail sooner, (c) is harder for appellants to comply with than a mail box rule, and (d) results in "unfortunate dismissals of appeals that are mailed within a reasonable *** time prior to the 120-day limit." Sen. Cranston's statement in support of S. 2974 (July 2, 1992). The Tax Court is cited as an example of an Article I court that uses the postmark as the date of filing pursuant to 26 U.S.C. § 7502. 3. Notice of Appeal in Federal Circuits-When Filed.-Section 1291, title 28 of the United States Code, generally provides that, other than the Court of Appeals for the Federal Circuit, courts of appeals have jurisdiction over all appeals from final decisions of federal district courts. Section 2107, title 28, prescribes the time for appealing to a court of appeals. This time is incorporated by Rule 4 of the Federal Rules of Appellate Procedure (FRAP). Rule 4(a)(1), FRAP, provides that in a civil case an appeal from a district court decision must be filed with the clerk of that district court within 30 days after the date of entry of judgment. If the |