Lead Opinion
Before the Court is The American Legion’s petition for extraordinary relief in the nature of a writ of mandamus. The American Legion maintains that the Secretary, through the Chairman of the Board of Veterans’ Appeals (Board Chairman), acted unlawfully and in violation of the Court’s decision in Ramsey v. Nicholson,
The American Legion’s petition seeks a Court order directing the Secretary to (1) rescind the stay of proceedings imposed by the Chairman’s Memorandum, and (2) order the Board of Veterans’ Appeals (Board) to decide Naas-like cases forthwith. Pet. at 9. The Secretary filed a response to the petition asserting, inter alia, that The American Legion does not have standing to bring the petition. In response, The American Legion asserts it has standing because it satisfies the three-prong test for associational standing set forth in Hunt v. Washington State Apple Adver. Comm’n,
On November 14, 2006, the matter was referred to a full-Court panel for oral argument and disposition. The Court also directed the parties to provide additional memoranda of law to address (1) the third element of the associational standing test — that neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit, and (2) how and on what basis The American Legion, or any veterans service organization (VSO), has standing to petition the Court under the All Writs Act (AWA), 28 U.S.C. § 1651(a). The Court heard oral argument on December 6, 2006. For the reasons set forth below, the petition will be dismissed.
I. THE PARTIES’ ARGUMENTS
The American Legion contends that it has standing as a Petitioner because it satisfies the three-prong test for associational standing as follows: (1) It has more than 2.6 million members who are former members of the U.S. Armed Forces, some of whom have claims pending before the Board that are subject to the stay challenged in the petition; (2) one of its organizational purposes is protecting veterans’ rights to VA benefits; and (3) the relief sought is prospective and equitable in nature, and the remedy, if granted, would “ ‘inure to the benefit of those members of the association actually injured.’ ” Petitioner’s Memorandum of Law (Memo, of Law) at 8-10 (quoting Hunt,
In response, the Secretary argues that Hunt, and its progeny, permit associational standing only when such standing has not been proscribed by statute and the three-prong test is satisfied. Secretary’s Memo, of Law at 2. The Secretary does not contest that The American Legion satisfies the first two prongs of the associational standing test. Rather, the Secretary asserts that because the Court’s jurisdiction is limited to review of final Board decisions and only a “person adversely affected” by that Board decision may file an appeal with the Court, the statutes governing the Court’s jurisdiction exclude the type of associational standing asserted by The American Legion, and require the participation of individual claimants in all actions before the Court. Id. at 10; see 38 U.S.C. §§ 7252 and 7266(a). The Secretary maintains that the AWA permits the Court to issue extraordinary writs only in aid of its prospective jurisdiction, but may not expand that jurisdiction. Therefore, because The American Legion could never appeal an adverse Board decision.regarding the entitlement to benefits under the laws administered by the Secretary, similarly, it is not a proper party to bring a petition pursuant to the AWA.
II. LAW AND ANALYSIS
In 1989, Congress established this Court under Article I of the U.S. Constitution to provide our nation’s veterans and their families with independent judicial review of Board decisions. As an Article I Court, we are not constitutionally bound by the case or controversy restraints of Article III courts. See 38 U.S.C. § 7251; Mokal v. Derwinski, 1 Vet.
A. 38 U.S.C. §§ 7252(a) and 7266(a)
The Court’s jurisdiction is governed by 38 U.S.C. §§ 7252(a) and 7266(a). Pursuant to section 7252(a), this Court “shall have exclusive jurisdiction to review decisions of the Board of Veterans’ Appeals.” Further, section 7266(a) specifically states that only a “person adversely affected by such decision shall file a notice of appeal” with the Court. 38 U.S.C. § 7266(a) (emphasis added). Although the plain language of this statute clearly indicates that Congress granted a right of action to a “person adversely affected” by a final Board decision, the meaning of “person” as used in this section is not defined in title 38, nor has the Secretary provided any regulatory definition. Thus, we will review the statutory scheme and the legislative history of the Veterans Judicial Review Act (VJRA), Pub.L. 100-687, title III, sec. 301, 102 Stat. 4113, to determine whether, as the Secretary suggests, Congress expressed an intent to limit the exercise of the Court’s jurisdiction. See King v. St. Vincent’s Hosp.,
1. Legislative History of the VJRA
The legislative history of the VJRA reveals that when Congress initially considered providing judicial review for veterans, its focus was on the individual right of the veteran or claimant to seek review of a final Board decision. See Blum v. Stenson,
The legislative intent to limit review in this Court to final Board decisions on appeals of individual claimants is also evident from Senator Cranston’s testimony before the U.S. Senate Committee on Veterans’ Affairs. On April 28, 1988, he described Senate Bill 11 as legislation that would “provide an opportunity for a veteran to seek judicial review of a final decision of the Board.” United States Senate Legislative Hearing on S. 11 — ‘Veteran’s Administration Adjudication Procedure and Judicial Review Act” and “S. 2292 — Veteran’s Judicial Review Act,” 100th Cong. (1988). Senator Cranston reiterated the importance of ensuring “fairness to individual claimants before VA” and the need for review of “questionable agency actions restricting, withholding, or withdrawing VA benefits.” Id. (emphasis added). Senator Cranston stated that “if the veterans directly ajfected by various VA actions have access to [a] court to challenge these actions, they would be guaranteed the opportunity to be heard by an entity outside of the VA and, in certain cases, to obtain urgent and timely relief.” Id. (emphasis added). Following the Senate’s consideration of both bills, Senator Cranston again appeared before the full Senate to present the compromise agreement, Senate Bill 11. See 134 Cong. Reo. S9184 (daily ed. July 11, 1988). In outlining the procedure for judicial review, Senator Cranston noted that “judicial review would be available only after a veteran’s claim has been turned down by a VA regional office and, on appeal, by the Board.” Id. (emphasis added). Notably absent from the legislative history of the VJRA is any expression of intent to allow VSOs to seek judicial review in their own right on behalf of their members through appeal to this Court. Rather, Congress clearly outlined the role VSOs would continue to play in the VA adjudicative processes in other statutory provisions that are outlined below, particularly, the statutory provisions governing filing an appeal with the Board and the Court, as well as filing challenges to VA rulemaking exclusively with the U.S. Court of Appeals for the Federal Circuit (Federal Circuit).
2. Appeals to the Board
An appeal to the Board of a VA regional office (RO) decision is initiated by filing a Notice of Disagreement (NOD) and is completed by filing a Substantive Appeal. See 38 U.S.C. § 7105(a). When a claim is properly appealed to the Board, the Board is vested with the jurisdiction to review “[a]ll questions in a matter which under section 511(a) of [title 38] is subject to a decision of the Secretary.” 38 U.S.C. §§ 7104(a), 7105(a); see also Jarrell v. Nicholson,
Based upon the foregoing, we conclude that “claimant” as used in section 7105(a) is the individual applicant seeking to appeal a decision of a claim for a VA benefit under title 38. Similarly, for a compensation claim under 38 U.S.C. § 1110, only a
3. Congress’s Defined Role for VSOs
Congress expressly created, under 38 U.S.C. § 5902, a specific, limited role for The American Legion within the VA adjudication process. That provision identifies The American Legion by name as a VSO entitled to act “as the claimant’s representative.” 38 U.S.C. § 5902(c). Given that Congress has explicitly defined The American Legion as having the power to represent claimants, it would be inconsistent with the plain language and legislative history of 38 U.S.C. § 7266 to find that Congress also intended to provide VSOs authority to independently pursue appeals before the Board or the Court. See 38 U.S.C. § 5902(b) (setting forth specific requirements for VSO to provide representation before the Secretary); see also Meeks v. West,
We also observe that, at approximately the same time Congress established this Court’s jurisdiction, it also considered and later explicitly provided to the Federal Circuit exclusive jurisdiction to hear challenges concerning VA rulemak-ing. See 38 U.S.C. § 502. In drafting this statute, Congress clearly set forth the role of the VSOs in this process. Specifically, 38 U.S.C. § 502 provides:
An Action of the Secretary to which section 552(a)(1) or 553 of title 5 (or both) refers ... is subject to judicial review. Such review shall be in accordance with chapter 7 of title 5 and may be sought only in the United States Court of Appeals for the Federal Circuit. However, if such review is sought in connection with an appeal brought under the provisions of chapter 72 of this title, the provisions of that chapter shall apply rather than the provisions of chapter 7 of title 5.
Chapter 7 of title 5 sets forth the procedure for judicial review under the Administrative Procedure Act. Section 702 provides that “a person suffering legal wrong because of agency action or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” The definitions set forth in 5 U.S.C. § 551 apply to the provisions of 5 U.S.C. § 702; therefore, a “person” under section 702 includes an “individual, partnership, corporation, association, or public or private organization other than an agency.” 5 U.S.C. § 551(2); see 5 U.S.C. § 701. Thus, Congress established that an association such as a VSO, under 38 U.S.C. § 502, would have standing to raise a challenge in its own right before the Federal Circuit, without regard as to whether it met the criteria for the associational standing test. We conclude that by specifically designing the statute to address the role of the VSOs, Congress intended VSOs to have standing in their own right before the Federal Circuit and not this Court. Congress has limited the role of the VSOs
B. AWA Authority
Although The American Legion argues that the AWA does not impede its ability to establish associational standing, we conclude otherwise because the AWA is limited by our jurisdictional statute. Pursuant to the AWA, the Court has the authority to issue extraordinary writs in aid of its prospective jurisdiction. 28 U.S.C. § 1651(a). “[JJurisdiction to issue a writ of mandamus pursuant to the AWA relies upon not actual jurisdiction but potential jurisdiction.” In re Fee Agreement of Cox,
The Federal Circuit’s analysis in Reid v. Dep’t of Commerce,
To reach this conclusion, we recognize that while the first two prongs of the test are required under Article III of the U.S. Constitution, the Supreme Court has held that the third prong of the test is not constitutional in nature, but rather one developed in the interest of administrative convenience and efficiency; and, thus, as a prudential rule “of judicial self-governance,” Congress may revoke this last requirement by statute. United Food & Commer. Workers Local 751,
[w]here the actual or threatened injury required by Article III exists solely by virtue of statutes creating legal rights which have been invaded, the standing question depends on whether the statutory provision on which the claim rests properly can be understood as granting persons in the litigant’s position a right to judicial relief.
In Reid, the Federal Circuit concluded that a union’s standing to appeal a Merit Systems Protection Board (MSPB) determination to the Federal Circuit was predicated on the union’s having standing before the MSPB. Id. at 283. In reaching its conclusion, the Federal Circuit examined the plain language of the statutes involved and found that Congress’s use of the word “employee” instead of “person,” and the separate statutory definitions for both terms indicated that by using “employee” in the jurisdictional statute for pursuing appeals of adverse decisions of the MSPB, Congress had “exercised its legislative prerogative to impose a prudential limitation on the exercise of [the Federal Circuit’s] jurisdiction over adverse decisions of the MSPB.”
III. CONCLUSION
Upon review of the plain text of the statute, along with the statutory scheme of title 38, and the legislative history of the VJRA, we conclude that Congress has expressly limited our jurisdiction to addressing only appeals and petitions brought by individual claimants. Therefore, although The American Legion’s petition for extraordinary relief asks the Court to resolve a purely legal issue, granting a VSO standing, even in the context of the AWA, would impermissibly expand our jurisdiction beyond that which Congress intended. Because The American Legion lacks standing to bring an appeal from an adverse Board decision to the Court, it similarly lacks standing to bring a petition because a decision on that matter would not aid in our
Accordingly, upon consideration of the foregoing, the petition for extraordinary relief in the nature of a writ of mandamus is DISMISSED.
Dissenting Opinion
dissenting:
I respectfully submit that the majority confuses the extent of our appellate jurisdiction with our authority under the All Writs Act to exercise our judicial authority in aid of our appellate jurisdiction. Compare 38 U.S.C. §§ 7252, 7266 (Court jurisdiction and review authority) with 28 U.S.C. § 1651(a) (All Writs Act). The Court’s appellate jurisdiction is limited to reviewing Board decisions initiated by persons adversely affected by those decisions. See 38 U.S.C. §§ 7252(a), 7266(a). This is not, however, exclusive of our well-established authority to grant extraordinary relief in aid of our jurisdiction pursuant to the All Writs Act, a power the Court has had since its inception. See 28 U.S.C. § 1651(a); Erspamer v. Derwinski,
It is axiomatic that the Court may not use its authority under the All Writs Act to expand its appellate jurisdiction. See Pa. Bureau of Corr. v. U.S. Marshals Serv.,
Inasmuch as we have the authority to grant the requested relief, the only question is whether the petitioner has standing
Moreover, the majority’s reliance on Reid v. Dep’t of Commerce,
The majority also misunderstands the third prong of the associational standing test, which serves to deny associational standing when “the claim asserted [or] the relief requested requires the participation of individual members in the lawsuit.” Hunt,
Finally, the majority finds congressional intent to exclude associational standing, but fails to recognize this arises from and extends solely to legislative history and statutes addressing our authority to hear appeals from Board decisions. None of the legislative history or statutory analysis cited by the majority addresses associational standing in the context of a request for an exercise of our authority under the All Writs Act. In contrast, the Supreme Cburt has noted that associational standing generally has been found appropriate in cases where injunctive relief, such as that granted pursuant to All Writs Act
Dissenting Opinion
dissenting:
I respectfully dissent from the conclusion reached by the majority opinion regarding whether The American Legion has standing to represent its members in seeking a writ of mandamus from this Court. Although I agree with the legal analysis of Judges Kasold and Schoelen and agree with their conclusion that The American Legion has standing to petition the Court in this case, I write separately to emphasize what I believe are the very limited circumstances that would support such standing.
The majority considers whether an association may assert standing on behalf of its members, focusing on 38 U.S.C. §§ 7252 or 7266, and whether an association could ever be a party before the Court challenging a Board decision. However, such an inquiry is not before the Court. The current situation is much more narrow. The American Legion, on behalf of its members, is seeking a writ of mandamus pursuant to the All Writs Act, 28 U.S.C. § 1651(a), a form of purely legal relief. Such relief is prospective, equitable, not dependent on the individual circumstances of its members’ underlying appeals, and, if granted, would apply uniformly to all affected members. The American Legion is not attempting to establish associational standing in its own right, but to act on behalf of its individual members in resolving their appeals which are currently pending before the Board. This situation does not implicate 38 U.S.C. §§ 7252 or 7266. In this unique and narrow situation, neither the legal questions presented nor the nature of relief requested requires participation of individual members for proper consideration and resolution. See Int’l Union United Auto., Aerospace, & Agric. Implement Workers of Am. v. Brock, 477 U.S. 274,
The American Legion asks the Court to declare unlawful an action by the Secretary that postponed indefinitely the adjudication of the claims of a number of The American Legion’s members, thus affecting the potential jurisdiction of this Court over such claims. This relief is common to all of the association’s members affected by the Chairman’s order. Further, the factors that would determine whether such relief should be granted or denied are totally independent of the individual circumstances of the underlying claims. Because the relief sought by The American Legion is equitable in nature and not dependent on the individual circumstances of its members’ underlying appeals, individual participation of its members is not required. Thus, in this narrow situation, the third prong of associational standing is met.
I strongly agree with the general thrust of the majority that the focus of this Court should be on individual claims. However, organizations have a legitimate interest in
Dissenting Opinion
dissenting:
I respectfully dissent from the majority’s opinion in this case because the majority has muddled the concepts of subject-matter jurisdiction and standing. Once these concepts are untangled, it is clear that the Court has jurisdiction to hear the instant petition and that The American Legion has standing to bring it.
I. SUBJECT-MATTER JURISDICTION
Concerned with the lack of clarity in courts’ use of the word “jurisdiction,” the U.S. Supreme Court has stated that the only jurisdictional concepts are “prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.” Kontrick v. Ryan,
However, the Secretary does dispute this Court’s subject-matter jurisdiction over the instant petition. This Court, like all Federal courts, is a court of limited jurisdiction whose subject-matter jurisdiction does not extend beyond that authorized by the U.S. Constitution or by Federal statute. Kokkonen v. Guardian Life Ins. Co.,
This Court’s subject-matter jurisdiction is generally defined by 38 U.S.C. § 7252(a), which confers upon this Court “exclusive jurisdiction to review decisions of the Board.” The majority also cites 38 U.S.C. § 7266(a) as governing the Court’s jurisdiction. Section 7266(a) states that, in order to obtain review by this Court, “a person ... shall file a notice of appeal with
The AWA jurisprudence supports this point. The Court’s jurisdiction over this petition is not based upon 38 U.S.C. § 7252, but upon 28 U.S.C. § 1651. Under the AWA, the Court has the authority to issue “all writs necessary or appropriate in aid” of its jurisdiction. 28 U.S.C. § 1651(a) (emphasis added); see Cox v. West,
In this case, it is clear that the “action sought by mandamus is within the [CJourt’s statutorily defined subject[-]matter jurisdiction.” In re Wick,
Finally, to see that it is clear that the Court has jurisdiction over the instant petition, one need look no farther than the identical petition that was filed at the same time by an individual claimant. See Ribaudo v. Nicholson, U.S. Vet.App. No. 06-2762 (Argued Dec. 6, 2006). The Secretary does not dispute the Court’s jurisdiction to hear Mr. Ribaudo’s petition, nor has the Court sua sponte requested that the parties brief the issue in that case. Because Mr. Ribaudo and The American Legion seek identical relief (rescission of the Board Chairman’s memorandum and adjudication of individual claims), the Court’s analysis of subject-matter jurisdiction in each case should yield the same result.
II. STANDING
The question of standing is independent of the Court’s subject-matter jurisdiction and derives from the case or controversy restraints of Article III of the U.S. Constitution. See U.S. Const, art III, § 2. Because this Court was created under Article I of the U.S. Constitution, this Court is not
The U.S. Supreme Court has recognized that, “[e]ven in the absence of injury to itself, an association may have standing solely as the representative of its members.” Warth v. Seldin,
The third prong of the Hunt test does not derive from constitutional requirements, but it is based upon “administrative convenience and efficiency.” Id. at 556-57,
In this case, the majority appears to find that the use of the term “person” in 38 U.S.C. § 7266(a) expresses a “clear” congressional intent to deny associational standing. In so finding, the majority relies upon the statements of Senator Cran-ston in support of the VJRA, in which he discussed such concepts as “fairness to individual claimants” and “veterans directly affected by various VA actions.” Ante at 4-5. The majority fails to recognize that these statements were made in the context of endorsing the broader concept of judicial review of veterans’ claims and were in no way an attempt to limit the Court’s authority. There is no evidence Senator Cranston, any other Senator or Representative, or Congress in general had even considered the concept of associational standing in enacting the VJRA. But, even accepting the Court’s conclusion that the use of the term “person” in section 7266(a) expresses a clear intent by Congress to preclude an association from bringing an appeal on behalf of its individual members, it does not necessarily follow that Congress intended the same limitation to apply in petitions for extraordinary relief brought under the AWA, where the Court would be acting in aid of its potential jurisdiction over the members’ claims. Indeed, Senator Cranston endorsed the use of the AWA in supporting the creation of this Court by stating that “ T would expect the court to utilize this power when it [is] ... necessary for it to do so in order for justice to prevail.’ ” Erspamer v. Derwinski,
In applying the -third prong of the Hunt test, it is generally the nature of the remedy that determines whether the participation of the individual members is required. Where an association seeks prospective or injunctive relief, rather than monetary damages, individual participation by the individual members is not normally necessary. See, e.g., UFCW,
The instant petition clearly falls into the former category. The relief sought by The American Legion is prospective — the timely adjudication of its members’ claims. The relief sought does not depend on the results of any of its members’ adjudications. See Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Brock,
Because I would find that the Court has jurisdiction to hear this petition and that The American Legion has standing to bring it, I would consolidate this petition with Ribaudo, supra, and decide it on the merits in due course. I respectfully dissent.
Notes
. In his brief, the Secretary incorrectly refers to "[Fjederal courts of general jurisdiction” to suggest that the associational standing jurisprudence is inapplicable or inapposite. Secretary's Response to November 14, 2006, Court Order at 10. However, there are no Federal courts of general jurisdiction; all Federal courts are courts of limited jurisdiction, and this Court’s limited jurisdiction is no