Changing Voices in a Familiar Conversation about Rules vs. Standards: Veterans Law at the Federal Circuit in 2011

INTRODUCTIONWhen an institution is in flux, there are two obvious ways to examine it. One can attempt to make predictions about its future, or one can explore the current baseline to set up future analysis of the impact of change. As discussed below, both the Federal Circuit and the dynamic that has shaped veterans law in recent decades are in flux. This Article, while continuing the recent trend of reviewing the developments in veterans law at the Federal Circuit over the preceding calendar year,1 takes the latter approach to the bigger picture. An annual review article is better suited to the second pursuit and there is little solid information that could be used to predict where the events of 2011 will take veterans law. Accordingly, a deeper reflection on the status quo helps set the stage for digesting the coming changes.Part I of this Article looks at the "changing voices" in veterans law. This past year has seen an unusually high number of departures and arrivals at the Federal Circuit. In addition, constitutional cases filed in the other federal courts indicate that opinions from other circuits may soon change the dynamic of veterans law at the Federal Circuit. Part II of this Article will look at the familiar conversation. That section builds upon an observation made by Paul R. Gugliuzza in last year's review article,2 and suggests that, under the surface of the Federal Circuit's jurisprudence, there is a familiar rules-versusstandards debate that may reflect different views about what it means for the system to be "veteran friendly." Part III contains a review of the veterans law cases decided by the Federal Circuit in 2011. The Conclusion provides a few thoughts about what the 2011 veterans law cases suggest about the analysis set forth in Part II. Finally, the Addendum continues and expands the statistical look at veterans law at the court, begun by Gugliuzza in last year's review article.3I. CHANGING VOICESA. JudgesPerhaps the most notable events at the Federal Circuit in 2011 were not opinions, but rather the exceptional amount of turnover experienced by the court. After years of relative stability, the composition of the Federal Circuit changed significantly. Three judges leftthe bench completely, two assumed senior status, and three new judges were confirmed, with a fourth nomination announced to fill the final vacancy.41. DeparturesChief Judge Paul Michel retired on May 30, 2011.5 Judge Michel had been on the court since 1988,6 the year that Congress passed the Veterans' Judicial Review Act7 (VJRA). Judge Michel authored dozens of veterans law cases, including Hodge v. West,8 which identified the Department of Veterans Affairs' (VA) duty "to fully and sympathetically develop the veteran's claim to its optimum" based upon the legislative history of the VJRA,9 and the en banc opinion in Bailey v. West,10 which held that the time period for appealing to the Court of Appeals for Veterans Claims (CAVC) is subject to equitable tolling.11 Together, these two cases have been significant factors in easing the burden on veterans to understand and strictly comply with the governing statutes and regulations.The court also lost two senior members, both of whom were veterans and whose tenure on the court pre-dated the creation of the CAVC. Judge Daniel M. Friedman, an original member of the Federal Circuit, passed away on July 6, 2011, after more than twenty years of service in senior status.12 Judge Friedman authored many notable opinions, including Donovan v. West,13 which affirmed the concept of delayed subsuming.14 Judge Glenn Archer passed away later that same month, on July 27, 2011.15 Judge Archer was appointed in 1985 and had been serving in senior status from 1997 until his passing.16 Judge Archer's veterans law opinions included MacPhee v. Nicholson,17 which held that a medical record by itself cannot be considered a claim for benefits.182. TransitionsNot only did the court lose these three voices, but two other longserving judges took on a reduced role. …