Robert v. Chisholm v. Robert A. McDonald
28 Vet. App. 240
| Vet. App. | 2016Background
- Attorney Robert V. Chisholm petitioned for a writ of mandamus directing the Secretary of Veterans Affairs to grant read-only access to the VBA automated claims-records system for paralegals working under his supervision pursuant to 38 C.F.R. § 14.629.
- The Secretary declined to provide access, citing Privacy Act concerns and technological infeasibility, and has not issued a formal decision on Chisholm's specific request.
- Chisholm alternatively asked the Court to compel the Secretary to issue a decision (so he could appeal), though he did not know which VA official would issue that decision.
- The Court found that access-authority determinations are made under regulations promulgated pursuant to statutes that affect provision of benefits, placing such decisions within reviewable agency action.
- The Court concluded Chisholm is entitled to extraordinary relief compelling the Secretary to issue a formal decision on the paralegal-access request, but denied mandamus relief that would directly order the Secretary to grant access because Chisholm had not shown lack of alternative means.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Court has jurisdiction to review Secretary's refusal to grant paralegal access | Chisholm: VA's refusal is reviewable because it is a decision under laws affecting benefits | Secretary: implied that privacy/technical issues justify withholding access and no final decision has been issued | Court: Has jurisdiction because decisions on access arise under laws affecting benefits and can be reviewed by the Board and Court |
| Whether mandamus should compel Secretary to grant paralegal remote access | Chisholm: Paralegals under his supervision qualify for read-only access under § 14.629 and must be allowed access | Secretary: Access would violate Privacy Act absent individual claimant consent and may be technologically infeasible | Court: Denied writ to compel granting access—petitioner failed to show lack of alternative means and mandamus is drastic remedy |
| Whether mandamus should compel Secretary to issue a formal decision on Chisholm's access request | Chisholm: Secretary has refused to issue a decision, frustrating review and appeal rights | Secretary: No formal decision; reliance on internal guidance and pending rulemaking | Court: Granted writ directing Secretary to issue a decision (so it can be appealed to Board/Court) |
| Scope of disclosures for veterans service organizations vs. private law firm support staff | Chisholm: seeks named paralegal access for law-firm staff | Secretary: VA Form 21-22 authorizes release to VSO as an organization; naming individual staff unnecessary and could broaden access | Court: Recognized organizational consent works differently; highlighted regulatory concerns about naming individuals for VSOs vs. law-firm staff |
Key Cases Cited
- Freeman v. Shinseki, 24 Vet.App. 404 (2011) (presumption in favor of judicial review of agency action)
- Park ’N Fly v. Dollar Park and Fly, Inc., 469 U.S. 189 (1985) (discussing presumption of reviewability and agency error risk)
- Bates v. Nicholson, 398 F.3d 1355 (2005) (statute affecting benefits falls within reviewable actions)
- Cox v. West, 149 F.3d 1360 (1998) (All Writs Act may be used to preserve Court jurisdiction)
- Kerr v. U.S. Dist. Court for N. Dist. of Cal., 426 U.S. 394 (1976) (mandamus is an extraordinary remedy)
- Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367 (2004) (three-factor mandamus test)
- Youngman v. Peake, 22 Vet.App. 152 (2008) (mandamus/delay standard in veterans context)
- Woznick v. Nicholson, 19 Vet.App. 198 (2005) (directing Secretary to issue Statement of the Case)
- Constanza v. West, 12 Vet.App. 133 (1999) (mandamus for delay requires extraordinary delay)