00-3455. Board of Veterans' Appeals: Rules of Practice-Subpoenas

AGENCY:

Department of Veterans Affairs.

ACTION:

Proposed rule.

SUMMARY:

The Board of Veterans' Appeals (Board) adjudicates appeals from denials of claims for veterans' benefits filed with the Department of Veterans Affairs (VA). This document proposes to amend the Board's Rules of Practice to clarify certain procedures relating to subpoenas.

DATES:

Comments must be received on or before April 17, 2000.

ADDRESSES:

Mail or hand-deliver written comments to: Director, Office of Regulations Management (02D), Department of Veterans Affairs, 810 Vermont Ave., NW, Room 1154, Washington, DC 20420. Comments should indicate that they are submitted in response to “RIN 2900-AJ58.” All written comments will be available for public inspection at the above address in the Office of Regulations Management, Room 1158, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays).

FOR FURTHER INFORMATION CONTACT:

Steven L. Keller, Chief Counsel, Board of Veterans' Appeals (0C1), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420 (202-565-5978).

SUPPLEMENTARY INFORMATION:

VA has the authority to issue subpoenas to compel the attendance of witnesses and/or the production of evidence. 38 U.S.C. 5711 (authority of Secretary). This authority has been delegated to Members of the Board through Rule of Practice 711 (38 CFR 20.711), which also sets forth the relevant procedures, and generally provides that subpoenas will be issued pursuant to a motion filed with the Board, which is in turn decided by a Board Member or panel of Members.

The changes in this document relate to: (1) Where such a motion must be filed; (2) ruling on the motion; (3) service of a subpoena; (4) motions to quash or modify subpoenas; and (5) enforcing compliance with a subpoena.

Where the Motion Is Filed

Rule 711(c) would be amended to provide that motions for subpoenas must be filed at the Board's offices in Washington, DC.

When originally issued in 1992, Rule 711 permitted the Chairman of the Board and, under certain circumstances, Directors of VA field facilities to rule on motions for subpoenas. See 38 CFR 20.711(e) (1992). The Rule was amended in 1996 to transfer authority to rule on subpoena motions to Members of the Board to comply with changes in 38 U.S.C. 7102. See 61 FR 20447 (1996). However, corresponding provisions in paragraph (c) of the Rule allowing subpoena motions to be filed with VA facility Directors were not removed. Local filing may not allow a motion to reach the Board early enough to permit timely issuance of a subpoena. VA proposes removing the provision for local filing.

Ruling on the Motion

VA proposes amending Rules 711(e) and 711(h) to provide that the issue of the costs of producing documents pursuant to a subpoena will be a matter for a motion to quash or amend, rather than a potential condition of issuing the subpoena.

Rule 711(e) now permits a Member of the Board to condition issuance of a subpoena seeking the production of tangible evidence (subpoena duces tecum) upon the moving party's advancement of the reasonable cost of producing the evidence. Setting a requirement for paying costs before there is any demand for reimbursement or evidence upon which reasonable costs may be determined is often premature. Accordingly, this provision would be moved to Rule 711(h), relating to motions to quash or modify a subpoena. This will provide a mechanism for getting actual cost disputes and related evidence before the Board. This procedure is similar to the practice of VA's Board of Contract Appeals. See 38 CFR 1.783(u)(4). In addition, Rule 711(e) would specify the forms to be used for issuing the subpoena, if the motion is granted.

Service of the Subpoena

VA proposes amending Rules 711(f) and 711(g) to delete the reference to “the official issuing the subpoena,” since, under the Board's Rules of Practice, subpoenas are issued only by Members of the Board pursuant to a motion to the Board.

Motions to Quash or Modify Subpoenas

VA proposes amending Rule 711(h) to provide that motions to quash or modify a subpoena may be brought by either party, and to provide notice procedures and permit the submission of evidence in such cases.

Current Rule 711(h) does not provide an effective means of getting before the Board disputes between the person subpoenaed and the person who initiated the subpoena where the person who initiated the subpoena is the aggrieved party—for example, disputes about unreasonable demands for reimbursement for costs associated with honoring a subpoena duces tecum. Current Rule 711(h) does provide for a motion to quash or modify a subpoena, but only by the person served. Consistent with the Board of Contract Appeals' practice, see 38 CFR 1.783(u)(4), the motion may now be brought by either party. Other revisions in this part of the Rule include new provisions requiring notice of motions to quash or modify and permitting evidence to be submitted in such proceedings.

Compliance

Proposed new paragraph (i) describes the method used to secure enforcement of the BVA's subpoenas.

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This rule will affect VA beneficiaries and will not affect small businesses. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analyses requirement of sections 603 and 604.

List of Subjects in 38 CFR Part 20

• Administrative practice and procedure
• Claims
• Lawyers
• Legal services
• Veterans

Approved: February 3, 2000.

Togo D. West, Jr.,

Secretary of Veterans Affairs.

For the reasons set out in the preamble, 38 CFR part 20 is proposed to be amended as set forth below:

PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE

1. The authority citation for part 20 continues to read as follows:

Authority: 38 U.S.C. 501(a).

2. Section 20.711 is amended by:

a. Revising paragraphs (c) and (e);

b. Revising the second sentence of paragraph (f);

c. Revising the first sentence of paragraph (g);

d. Revising paragraph (h); and

e. Adding paragraph (i).

The revisions and addition read as follows:

§ 20.711

Rule 711. Subpoenas.

* * * * *

(c) Where filed. Motions for a subpoena must be filed with the Director of the Administrative Service (014), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.

* * * * *

(e) Ruling on motion for subpoena—(1) To whom assigned. The ruling on the motion will be made by the Member or panel of Members to whom the case is assigned. Where the case has not been assigned, the Chairman, or the Chairman's designee, will assign the case to a Member or panel who will then rule on the motion.

(2) Procedure. If the motion is denied, the Member(s) ruling on the motion will issue an order to that effect which sets forth the reasons for the denial and will send copies to the moving party and his or her representative, if any. Granting the motion will be signified by completion of a VA Form 0714, “Subpoena,” if attendance of a witness is required, and/or VA Form 0713, “Subpoena Duces Tecum,” if production of tangible evidence is required. The completed form shall be signed by the Member ruling on the motion, or, where applicable, by any panel Member on behalf of the panel ruling on the motion, and served in accordance with paragraph (g) of this section.

(f) * * * A subpoena for a witness will not be issued or served unless the party on whose behalf the subpoena is issued submits a check in an amount equal to the fee for one day's attendance and the mileage allowed by law, made payable to the witness, as an attachment to the motion for the subpoena. * * *

(g) * * * The Board will serve the subpoena by certified mail, return receipt requested. * * *

(h) Motion to quash or modify subpoena—(1) Filing procedure. Upon written motion of the party securing the subpoena, or of the person subpoenaed, the Board may quash or modify the subpoena if it is unreasonable and oppressive or for other good cause shown. Relief may include, but is not limited to, requiring the party who secured the subpoena to advance the reasonable cost of producing books, papers, or other tangible evidence. The motion must specify the relief sought and the reasons for requesting relief. Such motions must be filed at the address specified in paragraph (c) of this section within 10 days after mailing of the subpoena or the time specified in the subpoena for compliance, whichever is less. The motion may be accompanied by such supporting evidence as the moving party may choose to submit. It must be accompanied by a declaration showing:

(i) That a copy of the motion, and any attachments thereto, were mailed to the party who secured the subpoena, or the person subpoenaed, as applicable;

(ii) The date of mailing; and

(iii) The address to which the copy was mailed.

(2) Response. Not later than 10 days after the date that the motion was mailed to the responding party, that party may file a response to the motion at the address specified in paragraph (c) of this section. The response may be accompanied by such supporting evidence as the responding party may choose to submit. It must be accompanied by a declaration showing:

(i) That a copy of the response, and any attachments thereto, were mailed to the moving party;

(ii) The date of mailing; and

(iii) The address to which the copy was mailed. If the subpoena involves testimony or the production of tangible evidence at a hearing before the Board and less than 30 days remain before the scheduled hearing date at the time the response is received by the Board, the Board may reschedule the hearing to permit disposition of the motion.

(3) Ruling on the motion. The Member or panel to whom the case is assigned will issue an order disposing of the motion. Such order shall set forth the reasons for which a motion is either granted or denied. The order will be mailed to all parties to the motion. Where applicable, an order quashing a subpoena will require refund of any sum advanced for fees and mileage.

(i) Disobedience. In case of disobedience to a subpoena issued by the Board, the Board will take such steps as may be necessary to invoke the aid of the appropriate district court of the United States in requiring the attendance of the witness and/or the production of the tangible evidence subpoenaed. A failure to obey the order of such a court may be punished by the court as a contempt thereof.

(Authority: 38 U.S.C. 5711, 5713, 7102(a))