Previously, we blogged about the Court of Appeals for Veterans Claims (CAVC) en banc per curiam opinion in Pacheco v. Gibson. There were multiple concurring and dissenting opinions which are worth reviewing and, frankly, by my math the concurring in part and dissenting in part opinion authored by Chief Judge Kasold (joined by Judges Hagel, Moorman, and Lance) would be considered the plurality opinion for those keeping score.
Judge Greenberg’s opinion (concurring in part and dissenting in part) broached an important issue of the scope of the CAVC’s judicial powers as an Congressionally-created Article I court. In researching the issue, I came across an excellent law review article that considered the scope of judicial review and equitable powers for another Article I court, the United States Tax Court. The law review article can be access at Equity and the Article I Court: Is the Tax Court’s Exercise of Equitable Powers Constitutional?
Admittedly, the issue of the scope of CAVC judicial powers as an Article I court is an esoteric question that will not concern most veterans applying for benefits under Title 38. In my humble opinion, however, these are important issues to consider for practitioners before the various Article I courts.