Norval J. ELKINS, Claimant-Appellant, v. Hershel W. GOBER, Acting Secretary of Veterans Affairs, Respondent-Appellee.
No. 00-7023.
United States Court of Appeals, Federal Circuit.
Oct. 13, 2000.
229 F.3d 1369
... If taxpayers are encouraged to believe they can unilaterally determine whether or not to file ... the need for investigations increases and the efficiency of the Service is impaired. [Giles‘] example undercuts the Service‘s efforts to encourage voluntary compliance and, if condoned, could impair the credibility of IRS with tax officers and the public generally.
Id. at 650; see also Allred, 786 F.2d at 1131 (identifying Giles as a case where the nexus was based on an adverse impact on the mission of the agency). Thus, the Giles court upheld a finding of nexus based on an impact to the IRS’ mission, not to Giles’ job performance.
In Allred, this court upheld the removal of an employee of the Department of Health and Human Services (HHS) based on his conviction, for child molestation. See Allred, 786 F.2d at 1129-30. The misconduct was considered so egregious that a nexus was presumed, thus no connection to Allred‘s job performance needed to be shown. See id. at 1131.
The egregiousness of the misconduct also led the Allred court to uphold the finding of nexus on two secondary grounds, finding both an adverse impact on the mission of the agency, HHS, and a loss of management‘s trust and confidence in Allred‘s job performance. However, the Allred court tied the loss of trust and confidence to Allred‘s specific duties, which included represent[ing] the agency before state and local governments, universities, hospitals, and various other grantees in preparing cost allocation plans to ensure the plans conformed with the agency‘s regulations. Id. at 1129. The Allred court found that management had lost trust and confidence in Allred‘s ability to represent HHS with these groups that were outside of the agency. See id. at 1131. Although the Allred court does not appear to have required any testimony from these clients of Allred‘s, as I would require in the present case, the egregiousness of Allred‘s misconduct, and the attending presumption of nexus, precluded the need for doing so.
CONCLUSION
Although I cannot condone Brown‘s conduct, I also cannot concur in the majority opinion. It grants virtually unbridled discretion to management, allowing it to remove an employee based on disapproval of that employee‘s off-duty behavior that does not implicate either job performance or the mission of the agency, in this case the Navy. Accordingly, I respectfully dissent and would reverse the decision of the Board.
David Feniger, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were David W. Ogden, Assistant Attorney General; David M. Cohen, Director; Kirk T. Manhardt, Assistant Director; and Elizabeth M. Hosford, Attorney.
Before MAYER, Chief Judge, FRIEDMAN, Senior Circuit Judge, and MICHEL, Circuit Judge.
Opinion for the court filed by Circuit Judge MICHEL. Dissenting opinion filed by Senior Circuit Judge FRIEDMAN.
MICHEL, Circuit Judge.
Norval J. Elkins appeals a decision of the United States Court of Appeals for Veterans Claims (“Veterans Court“). In a one-judge memorandum decision, the Veterans Court: 1) affirmed the decision of the Board of Veterans’ Appeals (“Board” or “BVA“) denying Elkins’ claim for service connection for headaches; 2) dismissed his appeal with respect to an alleged neck injury because the BVA did not decide the matter below; and 3) vacated the Board‘s decision denying service connection for a back condition and remanded the back injury claim for adjudication in light of what it held was new and material evidence. Elkins v. West, No. 98-1701, 1999 WL 699520 (Vet. App. Aug. 31, 1999) (Elkins II). On appeal, Elkins does not challenge the remand. We hold that the Veterans Court erred in affirming the denial of the headache claim because it relied on a finding as to well groundedness different from that cited by the BVA and erroneously characterized Elkins’ neck injury argument as a new claim, never adjudicated by the BVA and thus beyond the court‘s jurisdiction. Accordingly, we vacate the decision of the Veterans Court affirming the BVA denial, reverse its decision regarding lack of jurisdiction, and remand the case with instructions to remand to the BVA.
BACKGROUND
Elkins served on active duty in the United States Air Force from January 1950 to September 1953. In March 1951, Elkins was involved in an auto accident. Between October 1952 and December 1952, he was treated for headaches on three occasions. When he was examined at the time of his separation from military service, Elkins
In late 1953, Elkins filed with the Veterans Administration Regional Office (“RO“) a claim for service connection for various injuries suffered as a result of the 1951 accident, including back pain, scars to the face, and head injury. At that point a Veterans Administration doctor examined him. After reviewing the doctor‘s report, the RO awarded benefits for scars on the face, but denied benefits for all other injuries.
In April 1990, Elkins attempted to reopen his claim for service connection as to the back injury based on “new and material evidence.” Later in 1990, he amended the claim to include service connection for headaches. The RO denied this claim entirely in March 1991, and Elkins filed a notice of disagreement (“NOD“). In response to the NOD, the Department of Veterans Affairs (“DVA“)1 generated a Statement of the Case indicating that Elkins’ appeal to the Board concerned a claim for back injury and headaches. In his substantive appeal to the BVA, Elkins referenced back problems and headaches, but not neck or cervical injury. The BVA remanded the claim with directions for the RO to obtain medical and social security records and ordered the DVA to provide Elkins with orthopedic and neurological examinations. After the RO denied his claims again, Elkins appealed back to the BVA. Based on the reports of the examinations and records from Elkins’ private doctors, the BVA determined that Elkins failed to submit new and material evidence regarding his back condition. In addition, the BVA found that he had not submitted a well grounded claim for headaches because he had not provided competent medical evidence of a current headache condition. In support of its conclusion that Elkins does not currently suffer from headaches, the BVA quoted a 1994 report from a neurological examiner, which states:
Regarding headaches, [the veteran] does not have headaches. However, what he was interpreting as headaches was actually cervical pain or neck pain, and indeed he has mild limitation of range of motion and it would not be unreasonable to connect mechanical back pain and muscle spasms with cervical pain and spasms.
In the Appeal of Norval J. Elkins, No. 92-04590 (BVA July 16, 1998) (Elkins I), slip op. at 17.
Elkins appealed to the Veterans Court, arguing that the BVA erred in denying service connection for headaches and back injury and that it further erred in not recognizing, based on the evidence presented, a well grounded claim for neck pain. With respect to the back condition, the Veterans Court remanded to the BVA for further adjudication. The court then determined, contrary to the BVA, that Elkins had indeed submitted competent medical evidence of a current headache condition but ruled nevertheless that he had failed to establish a well grounded claim “because there is no medical evidence in the record which establishes a medical nexus between his headaches and his military service.” Elkins II, at *4. Finally, the court dismissed Elkins’ claim with respect to neck injury for lack of jurisdiction because Elkins had not filed a claim or NOD alleging neck injury, per se, was never incorporated into the BVA‘s statements of the case, raised in the BVA appeals, or discussed in the BVA decision. See Elkins II, at *4. Elkins timely appealed the decision as to the headaches and neck injury to this court. The remand for back injury is not before us.
DISCUSSION
I. Jurisdiction
On August 31, 1999, the Veterans Court affirmed the BVA‘s denial of Elkins’
A. The jurisdiction of this court over appeals from the Veterans Court is governed by
Had Elkins appealed a similar decision to us from a district court, there would be little question that we would lack jurisdiction. Under the “final judgment rule,” a party may not appeal district court rulings until the trial court has rendered a decision that ““ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.“” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373 (1981) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978)). In appeals from district court rulings, all claims for relief must be resolved before an appeal on any claim may be taken. See id.; see also
B. This court has recognized, however, that there is not always “precise congruence between ‘the classical jurisdictional requirements’ applied to appeals from district courts and the jurisdictional standards applicable to review of administrative proceedings.” Dewey Electronics Corp. v. United States, 803 F.2d 650, 654 (Fed. Cir. 1986). The relevant consideration, in determining whether an administrative adjudication is sufficiently “final” is “whether the process of the administrative decisionmaking has reached a stage where judicial review will not disrupt the orderly process of adjudication and whether rights or obligations have been determined or legal consequences will flow from the agency action.” Id. (quoting Port of Boston Marine Terminal Ass‘n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)).
This court has held, when reviewing decisions of agency boards of contract appeals, that a litigant‘s individual claims for relief may, in certain circumstances, be separable for purposes of appellate review. See Dewey, 803 F.2d at 653-54; see also Kinetic Builder‘s Inc. v. Peters, 226 F.3d 1307, 1312 (Fed. Cir. 2000); Orlando Helicopter Airways, Inc. v. Widnall, 51 F.3d 258, 261 (Fed. Cir. 1995). In Dewey, the contracting officer had constructively denied liability on what were deemed to be nine separate claims by failing to consider and act on them in a timely
Subsequent cases have reaffirmed that Dewey is to be applied only when the exercise of our jurisdiction will not “disrupt the orderly process of adjudication” of the administrative tribunal. Orlando Helicopter, 51 F.3d at 261 (quoting Port of Boston Marine Terminal Ass‘n, 400 U.S. at 71) (exercising jurisdiction over ASBCA decision that denied recovery of costs under the sovereign acts doctrine, noting that, although the ASBCA had withheld ruling on costs incurred under stop work order, the “sovereign acts defense is an issue wholly separate and distinct from any issues which may remain before the board“); Kinetic Builder‘s, 226 F.3d at 1313-14 (“We think the better rule is that where separate claims by definition focus on a different or unrelated set of operative facts, and where issues of both liability and quantum have been assumed and determined, the decision of the Board as to the non-remanded claims is to be deemed final for the purpose of conferring appellate jurisdiction on this court.“).
C. We have sub silentio applied the methodology of Dewey in appeals from the Veterans Court. In Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), a veteran had presented two claims for benefits to the Veterans Court: a left eye disability claim and a pension claim. The Veterans Court remanded the pension claim for additional proceedings and dismissed Grantham‘s left eye claim for lack of jurisdiction. See Grantham v. Brown, 8 Vet. App. 228 (1995). We noted that the Veterans Court‘s decision was non-final with respect to Grantham‘s remanded pension claim, and we found that we lacked jurisdiction over that portion of Grantham‘s appeal. See Grantham, 114 F.3d at 1159. We proceeded to exercise jurisdiction, however, over Grantham‘s appeal of the dismissal of his left eye claim. See id. at 1158. Although we did not expressly confront the issue as to whether the Veterans Court‘s decision was “final” for the purposes of the final judgment rule, or whether the claims were separable on appeal, our decision to exercise jurisdiction over his left eye claim is illustrative of our court‘s practice of treating a veteran‘s distinct claims as separable on appeal.
This court has consistently recognized that the various claims of a veteran‘s overall “case” may be treated as distinct for jurisdictional purposes. In Maggitt v. West, 202 F.3d 1370, 1376 (Fed. Cir. 2000), we held that a “decision” of the BVA, for the purposes of the Veterans Court‘s jurisdiction, is the decision with respect to the “particular benefit request” sought by the veteran, and thus that the Veterans Court had jurisdiction to hear new arguments raised by a veteran on appeal, so long as they related to the particular claim for benefits that was adjudicated by the BVA. Similarly, in Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998), we held that a veteran‘s claims relating to the termination of his individual unemployability benefits had
D. Our decisions are consistent with the approach adopted by the Veterans Court in treating a veteran‘s different claims as separately appealable matters. See Hamilton v. Brown, 4 Vet. App. 528, 544 (1993) (holding that a veteran‘s claims for osteoporosis, osteomyelitis, and premature aging, which remained pending before the RO during appeal of additional claims, could be separately appealed after the filing of a subsequent NOD); Ryan v. Derwinski, 2 Vet. App. 568, 569-70 (1992) (exercising jurisdiction over one of a veteran‘s claims, although a closely related claim was still pending before the RO). Although not binding on us, these decisions are instructive of the manner in which a veteran‘s separate claims may be appealed sequentially.
E. Our decisions reflect a fundamental difference in the structure of a single “case” between veterans litigation and district court proceedings. In a district court, a plaintiff must present all claims for relief arising from an event in a single complaint, and these claims are handled as integral parts of a single case. Except in limited circumstances, they must be tried together and appealed all at once. See
It appears that Elkins would have been free to pursue his claims and arguments regarding his back, neck, and headache conditions separately and sequentially, and that he could have appealed each to the Veterans Court, and subsequently to this court, as a separate “case.” Elkins, however, presented his claims to the Veterans Court in a single appeal. We must decide whether Elkins is thereby foreclosed from obtaining review in this court as to his headache claim and neck argument due to the fact that his back claim, which was simultaneously pending before the Veterans Court, has been remanded.
Although all three of Elkins’ claims relate to the same accident, we note that the legal issues presented on appeal to the Veterans Court were all distinct (i.e., whether Elkins has presented “new and material evidence” sufficient to reopen his 1953 claim for back injuries, whether he has presented a “well grounded” claim for headaches, and whether the medical reports furnished with his headache claim support a claim for neck injuries). Because Elkins’ headache claim and neck ar-
Our methodology in Dewey for contract cases applies with even greater force to veterans cases. Because, as we noted above, each “particular claim for benefits” may be treated as distinct for jurisdictional purposes, Maggitt, 202 F.3d at 1376, a veteran‘s claims may be treated as separable on appeal. In those cases, such as the one at bar, where a veteran has packaged all his claims in a single appeal to the Veterans Court, it would be unfair to deny the veteran an immediate appeal of a final decision as to one or more of his claims simply because an additional claim is remanded for further proceedings. To require a final decision with respect to all claims raised at the Veterans Court may have the unintended and perverse effect of encouraging veterans to file separately their various claims for relief, in order to secure an immediate appeal to this court.
We acknowledge that allowing separate appeals of the various claims asserted by a veteran may lead to less efficient use of judicial resources. Such a result, however, is inevitable given the pro-claimant, nonadversarial, ex parte system that supplies veterans benefits. See Maggitt, 202 F.3d at 1377. Because veterans’ claims are often prepared and litigated pro se, and because they are never finally decided but are always subject to re-opening, the court cannot fairly mandate that all claims for relief be incorporated in a single document, as is required in a district court complaint.
Our conclusion, moreover, advances the goal of timely providing benefits to disabled veterans. In meritorious cases where the Veterans Court‘s interpretation of a statute or regulation would preclude an award of benefits on a particular claim, a veteran might otherwise have to wait years before all his or her claims are fully adjudicated and thus appealable to this court. Although the monetary amount that may ultimately be awarded will date back to the original effective date of the claim (normally the filing date of the claim), a veteran who depends on an award as a substitute for lost wages will be seriously harmed during the delay.
F. The dissent argues that
We agree with the dissent that, had Elkins presented a single claim to the Veterans Court, and had that court remanded the claim for further proceedings, then the Veterans Court‘s decision would ordinarily not have been final and appealable. In this case, however, we hold that the Veterans Court‘s decision is unquestionably final with respect to Elkins’ neck argument and headache claim, and that these matters are separable from Elkins’ back claim for purposes of this appeal. We conclude that we may exercise jurisdiction over Elkins’ neck argument and headache claim, notwithstanding the Veterans Court‘s remand of Elkins’ back claim.
II. Headache Condition
Contrary to the BVA‘s finding that Elkins had not presented sufficient evidence of a current headache disability, the Veterans Court held that there was indeed sufficient medical evidence that Elkins currently suffers from headaches. Nevertheless, the court then held that as to Elkins’ headache condition, his claim was still not well grounded because there was no evidence of a medical nexus between the headaches and Elkins’ military service.2 Both parties now agree that this holding is contrary to our holding in Hensley v. West, 212 F.3d 1255, 1264 (Fed. Cir. 2000). In Hensley, which issued after the Veterans Court issued its decision, this court held that the Veterans Court may not review the BVA‘s determination of “not well grounded” and affirm the decision on alternative grounds (i.e., failure of another part of the three-part Caluza test) that involves finding facts in the first instance. See id.; see also Caluza v. Brown, 7 Vet. App. 498 (1995), aff‘d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Thus, once it determined that the BVA had erred in finding that there was insufficient evidence of a current headache condition, “the proper course for the Court of Appeals for Veterans Claims would have been to remand the case to the BVA for further development and application of the correct law.” Id. Otherwise the Veterans Court becomes a fact-finder, rather than a court of review. Fact-finding in veterans cases is to be done by the expert BVA, not by the Veterans Court. Accordingly, we remand Elkins’ potential claim for a headache condition to the Veterans Court for remand to the BVA.
III. Neck Injury
Elkins argues here, as before the Veterans Court, that the DVA‘s “duty to assist” the veteran under
Ignoring these arguments, however, the Veterans Court dismissed the nascent claim as to neck or cervical injury by concluding that it had no jurisdiction. Citing Ledford, the court reasoned that it had
A. Elkins argues that this court‘s decision in Maggitt, 202 F.3d at 1377, holding that the Veterans Court had “jurisdiction to hear arguments presented to it in the first instance, provided it otherwise has jurisdiction over the veteran‘s claim,” id. (emphasis added), is controlling. In Maggitt, the veteran made a claim before the RO for asthma, a knee condition, a skin disorder, and a back injury. The RO and the Board denied the claim as to all four. Before the Veterans Court, Maggitt asserted the same four injuries but made two additional constitutional and administrative arguments in support of service connection for those same four alleged disabilities.
Elkins seems to assert that had the DVA properly assisted him, it would have considered the headache claim as including neck or cervical injury because such an injury was obvious from the medical records. Thus, Elkins appears to argue he did not present a new claim for neck or cervical injury but, like the veteran in Maggitt, was merely making a new argument, namely that a neck or cervical injury was apparent in the evidence of record before the BVA, although he articulated it as headaches.
B. The government responds that Elkins never filed a claim or NOD for neck pain (only citing back pain and headaches), and thus the BVA properly never mentioned it. In Ledford, 136 F.3d at 780, we explained that a narrow or specific NOD may limit the Veterans Court‘s jurisdiction to the specific elements of the benefits request that were denied in a decision below and contested in the NOD. We also explained that an NOD is necessary for the Veterans Court to have jurisdiction over a claim. See id. at 781 (“An NOD is required to initiate the appellate review process.“). The government argues that the Veterans Court‘s jurisdiction is limited to claims expressly raised by the veteran before the agency and decided by the BVA.
C. As we indicated in Maggitt, 202 F.3d at 1374, the manner in which the Veterans Court defines its statutory jurisdiction is a legal matter for our plenary review. Whether the Veterans Court had jurisdiction will depend on whether Elkins sought to make a new claim for neck injury before the Veterans Court or if he made only an additional argument in support of his existing headache claim raised in the NOD. If the former, Ledford controls and jurisdiction was properly found lacking. If the latter, Maggitt controls.
Our examination of Elkins’ briefs before the Veterans Court points to the latter. In those briefs, Elkins cites the medical report conclusion that his headache pain was actually attributable to a neck injury and argues:
The doctor acknowledges that the Appellant experiences pain which he “interprets” as headaches. The Appellant‘s substantive appeal mentioned headaches. [] It is disingenuous, at the very least, to argue that the Appellant is not competent to give an opinion as to the etiology of his condition, but then disallow his claim when he identifies the symptom that he is experiencing for the reason that he has failed to adequately diagnose it.
App. at 24 (emphasis added). Thus, Elkins appears to have argued to the Veterans Court that perhaps his headache claim is better characterized as a neck or cervical injury instead of by its apparent symptom of headaches. The DVA, Elkins argued before the Veterans Court, had a duty to assist him in properly developing his claim, rather than denying his claim because the injury was not properly described. We read this to be a new argument in support of Elkins’ request for service connection for a disability that El-
This case is thus more like Maggitt. Therefore, we reverse the Veterans Court‘s dismissal for lack of jurisdiction. The Veterans Court erred in dismissing Elkins’ appeal because it was based on an argument that the BVA should have assisted him in properly developing the facts of his claim as focused on a new neck or cervical injury, rather than Elkins’ headache condition. Despite dismissing what it called Elkins’ neck injury claim, the court seems to have assimilated the argument into its finding that Elkins had indeed presented sufficient medical evidence that he currently suffered from an injury to satisfy the current disability element of the three-part Caluza test for well groundedness. See Caluza, 7 Vet. App. at 498. Thus, the Veterans Court appears to agree with Elkins that he indeed suffers a current injury. The question left unaddressed by the Veterans Court is whether the injury is properly denominated as headaches or a neck injury, or both, and whether nexus to a service event can be shown.
Because the parties agree that the headache condition is properly remanded to the Veterans Court for remand to the BVA, the failure of the Veterans Court to directly address the argument that Elkins’ injury is better denominated as neck injury is moot. It is now established that Elkins suffers from some current injury or disability separate from his back injury. On remand the BVA shall determine, based on the medical evidence presented, how that injury is best characterized. It shall also either determine that the claim is still not well grounded for lack of proof of nexus, or reach the merits after the DVA has assisted the veteran in developing the facts pertinent to the claim. This court of course neither makes any determination, nor intimates any view, as to either issue.
CONCLUSION
The Veterans Court erred in affirming on alternative grounds the BVA‘s decision to deny Elkins’ claim insofar as it referred to headaches, because the BVA, an expert administrative board, is the only proper tribunal to find the contested facts in veterans cases. It also erred in dismissing for lack of jurisdiction, thereby ignoring Elkins’ argument that his headache condition might be more properly considered a neck injury, based on the evidence presented. Accordingly, we reverse the decision of the Veterans Court as to the dismissal and vacate as to the affirmance. We remand to that court for remand to the BVA, which shall adjudicate Elkins’ claim, consistent with the Veterans Court‘s holding that evidence sufficient to make out the current disability element of a well grounded claim was presented. The decision of the Veterans Court is therefore
REVERSED IN-PART, VACATED IN-PART and REMANDED.
COSTS
Each party to bear its own costs.
FRIEDMAN, Senior Circuit Judge, dissenting.
In my view, the decision of the Court of Appeals for Veterans Claims (Veterans Court) is not final, and this court has no jurisdiction to review it. I would therefore dismiss the appeal.
A. The Supreme Court consistently has held that a final decision is one that “ends the litigation on the merits and
The court so recognizes when it states that “[h]ad Elkins appealed a similar decision to us from a district court, there would be little question that we would lack jurisdiction.” The court concludes that because the Department of Veterans Affairs (Department) administratively treats separate claims by a veteran as in effect separate cases, there is “a fundamental difference in the structure of a single ‘case’ between veterans litigation and district court proceedings” that warrants the application of different standards of finality in the two kinds of cases. The court concludes:
we hold that the Veterans Court‘s decision is unquestionably final with respect to Elkins‘s neck argument and headache claim and that these matters are separable from Elkins‘s back claim for purposes of this appeal. We conclude that we may exercise jurisdiction over Elkins‘s neck argument and headache claim, notwithstanding the Veterans Court‘s remand of Elkins‘s back claim.
The practice of the Department to treat administratively each of a veteran‘s claims as a separate “case” before it does not justify applying a different standard of finality in reviewing the decisions of the Veterans Court. The focus should be on how that court handles its cases, not on how the Department whose decisions it reviews does so. There is every reason to believe that that court treats a veteran‘s different claims as components of a single case, not as separate cases. The present case, although involving three claims by the veteran, has a single docket number and the court disposed of it in a single opinion. Although the court‘s decision was final with respect to two of the three claims in the case, that is not the standard governing whether the court‘s decision is final for purposes of appeal.
Reviewing the Veterans Court decision in this case could produce the very kind of piecemeal appeals that the final judgment rule is designed to protect against. Cobbledick v. United States, 309 U.S. 323, 325 (1940). If Elkins were to lose on the remand, and if the Veterans Court were to uphold that ruling, Elkins then could appeal that decision to this court, and we would be required to consider this case a second time. On the other hand, if we were to dismiss the appeal for want of a final decision, we could finally dispose of the entire case in a single appeal after the remand proceedings were completed. The court apparently recognizes this consequence of its decision when it “acknowledge[s] that allowing separate appeals of the various claims asserted by a veteran may lead to less efficient use of judicial resources.”
B. The remaining question on the jurisdictional issue is whether our appellate jurisdiction over decisions of the Veterans Court is limited to those that are final.
Unlike the statutory provisions defining the general jurisdiction of the other cir-
In view of the settled rule and practice that the jurisdiction of the courts of appeals is limited to reviewing “final decisions,” it is most unlikely that if Congress had not intended that limitation to apply to our review of decisions of the Veterans Court, it would not clearly have so stated. There is nothing in the legislative history of the statute that indicates Congress so intended, and the absence of any reference to “final decisions” in
Moreover, in
This provision is virtually identical to provisions authorizing interlocutory appeals to the courts of appeals from district courts in
Finally, our jurisdiction to review Veterans Court decisions is limited in scope. We may review such decisions only “with respect to the validity of any statute or regulation ... or any interpretation thereof.”
The court may be ruling that because the statutes defining our jurisdiction do not explicitly provide for review of only final decisions, it has some flexibility in determining what decisions of the Veterans Court it will treat as final. There is such a suggestion in the court‘s statement, made in the second paragraph of its discussion of jurisdiction and after quoting
The court relies on Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) to support its jurisdictional ruling. There the veteran asserted two claims: a left-eye disability and a pension claim. The Veterans Court dismissed the eye claim for lack of jurisdiction because the veteran allegedly had not filed a valid notice of appeal regarding that claim. It vacated the Board of Veterans Appeals decision on the pension claim and remanded that issue to the Board for reconsideration and readjudication.
We reversed the denial of the eye claim, holding that the Veterans Court had jurisdiction to entertain it, and dismissed the appeal of the remand of the pension claim, holding that “typically” we have no “jurisdiction over Court of Veterans Appeals remands.” Id. at 1159. The court did not discuss, or even refer to, the question whether in that circumstance it had jurisdiction to review the Veterans Court decision.
The fact that the court entertained the appeal even though the Veterans Court had decided only one of the two claims before it does not, in my view, make the case an appropriate precedent to support our jurisdiction here. When a court has not discussed or even referred to an issue, its decision cannot properly be treated as a ruling on the point. Compare Moore v. Mead‘s Fine Bread Co., 348 U.S. 115, 118-120 (1954) (reinstating jury verdict for plaintiff in damage suit under § 3 of the Robinson-Patman Act,
The court also relies upon decisions in which it has reviewed decisions of boards of contract appeals that decided some, but not all, of the claims before them, and upon decisions of the Veterans Court that reviewed decisions of the Department disposing of some, but not all, of a veteran‘s administrative claims. Such reference is misplaced, however, because “to assimilate the relation of these administrative bodies and the courts to the relationship between lower and upper courts is to disregard the origin and purposes of the movement for administrative regulation and at the same time to disregard the traditional scope, however far reaching, of the judicial process.” Federal Communications Comm‘n v. Pottsville Broad. Co., 309 U.S. 134, 144 (1940). It also overlooks the “historical differences in the relationship between administrative bodies and reviewing courts and that between lower and upper courts.” Scripps-Howard Radio, Inc. v. Federal Communications Comm‘n, 316 U.S. 4, 10 (1942). Judicial decisions that treat as final for review purposes administrative decisions that did not dispose of all the issues before the agency are not appropriate precedents for treating as final judicial decisions that decide only some of the issues before the court.