*1 ready capable of accurate and of Federal Rule of requirements met the determination resort to sources responds 201. The Government Evidence correctly accuracy reasonably whose cannot of Federal Claims that the Court grounds questioned. for re- appropriate all considered cor- record and the administrative opening judicial Murakami asked the court to take not Murakami could rectly determined authenticity the documents notice the record. supplement Mura and the made statements therein. II, kami at court 46 Fed.Cl. 738-39. The of discretion We discern no abuse declined to use Rule 201 to circumvent denial of Murakami’s motion. in the court’s ad general against supplementing the rule thoroughly of Federal Claims The Court Id. Further ministrative record. at 739. argu Murakami’s evidence examined more, correctly found that Murakami’s it con The court observed ments. require not satisfy documents did in record created fínes itself 201(b) ments of Rule because neither below, cir except limited proceedings II, authenticity nor content of the documents cumstances, Murakami at Fed.Cl. Id. generally was known. documents relat and that Murakami’s legal theory he did not raise to a ed III. CONCLUSION below, namely that his father agency traveling due to con prevented was Because the Court Federal Claims harm physical arrest even cerns of correctly concluded Murakami jure to de subject not travel he was though compensation not entitled to restrictions, id. at 738. The court stated Act, not the court did abuse and because “argue that the could not that Murakami denying evi- its Murakami’s discretion to consider factors rel below failed agency motions, dentiary we affirm. raised, legal theory he never to a evant AFFIRMED theory was not ob where the particularly irrationally neglected by the vious and Id. As we stated
agency.” 738. supra, the Court II.C.3, Federal correctly found Murakami
Claims present to the Redress Office
failed theory docu underlying upon BATES, R. Claimant- Edward Thus, the Court of Feder pertain. ments Appellant, deny discretion in al was within its Claims supplement ing Murakami’s motion per with documents administrative record NICHOLSON, R. James arguments. to waived tinent Affairs, Respondent- Veterans Moreover, we no abuse discre- discern Appellee. in the Court of Federal Claims’ refus- tion No. 04-7085. judicial take notice of Murakami’s al to under Federal Rule documents proffered Appeals, Court of United States 201(b). provides: Evidence Rule Circuit. Federal fact must be judicially A noticed one Feb. dispute that it is reasonable (1) generally known within the either jurisdiction of the trial court
territorial
Opinion for the court filed Circuit DYK. Judge Concurring opinion filed by Judge Circuit BRYSON.
DYK, Judge. Circuit Secretary, acting through The the Gen- Counsel, R. appellant eral terminated Ed- (“Bates”) Bates’ accreditation wards represent Depart- claimants before the (“VA”). of Veteran ment Affairs Bates sought review Board of Veter- before the (“the Board”). ans Affairs The to issue of declined the Statement (“SOC”) pur- required Bates Case appeal. sought his He manda- sue then Ap- of mus from the United States Court for to order peals Veterans Claims Secretary to issue so that the SOC he appeal could the Board. court jurisdiction found that the Board had no appeal, accordingly, over the court jurisdiction appeal have no would over rendering from the thus mandamus We the decision unavailable. reverse Appeals the Court for Veterans Claims and remand with instructions to issue the writ of requested mandamus. Carpenter, Carpenter, M. Kenneth
Chartered, Kansas, Topeka, argued for BACKGROUND claimant-appellant. attorney Bates who Appellant rep- is an D’Alessandris, Attorney, Com- David before resents claimants for benefits Division, Branch, Litigation mercial Civil permissible representation is VA. Such Justice, Department United States by the only if an accredited VA DC, Washington, argued respondent- for 5904(a). §§ 5901 and pursuant 38 U.S.C. him Pe- on were appellee. With the brief 28, 2003, July was accredited. On Bates General, Kiesler, Attorney ter D. Assistant hearing, following a the General Counsel of Cohen, Director, Brian M. Daivd M. (“GC”), acting on behalf the VA Simkin, on Assistant Director. Of counsel accreditation, Secretary, Bates’ terminated Deputy Richard Hipolit, the brief were J. authority under the of 38 U.S.C. acting and Martin J. Assistant General Counsel § 38 C.F.R. 14.633. GC Sendek, Attorney, Depart- United States “engaged in un- that Bates had concluded Affairs, Washington, ment of Veterans practice and violated laws adminis- lawful DC. 49.) (J.A. Secretary.” tered NEWMAN, BRYSON, Bates the GC found that had particular, Before pre- DYK, unlawful for Judges. “accepted compensation Circuit paring, presenting, prosecuting possess claims The court held that would benefits in violation VA U.S.C if issue the writ 5904(c)(1), ... solicited and contracted granting of Bates’ petition could lead to a violation illegal fees in of 38 U.S.C. Board decision over which the court would 5905(1) ... deceived and misled a [and] jurisdiction. The Court of (Id.) Bates claimant.” was also accused of for Veterans Claims held that the Board 5904(c)(2)by violating seeking instance, lacked in the first clients, fees al- unreasonable consequence, and as a the court lacked directly though the GC did address jurisdiction, and therefore there no *4 decision, making that find- violation authority issue a of to writ mandamus. 38 (Id. charges. in the other ing it subsumed (2000). § U.S.C. 48.)
at
The court concluded that
the provision
urged
Secretary’s
Bates
action
noted,
5904(b),
which
Secretary
was reviewable
because the was not
“a
that affects the
of
jurisdictional
provides
Board’s
statute
for benefits,” and was therefore outside the
of
Secretary
“decision[s]
review
un-
jurisdiction
Board’s
under 38 U.S.C.
law that
der a
affects the
of
511(a)
7104(a),
§§
and that the court
benefits,”
7104(a)
(in-
§
38 U.S.C.
jurisdiction
lacked
therefore
under 38
reference,
corporating by
38 U.S.C.
511(a)
§
In holding
7252.
511(a)),
§
Secretary’s
and because the
de-
to
inapplicable,
of Appeals
Court
for
cision to cancel his accreditation under 38
distinguished
Veterans Claims
our decision
§
such a decision. Ac-
West,
(Fed.Cir.
in Cox v.
Bates “all questions Board’s in a jurisdiction pursuant 38 U.S.C. 511(a) Cox, at 1362. matter § 7292. which under section this title is to decision Secre- tary.” Section states: DISCUSSION questions all Secretary shall decide question gov of this Our necessary of law and fact decision 7292(d)(1), erned by the Secretary under a law that af- court, in reviewing deci provides that the provision by the fects of benefits sions of the Court Veterans dependents or the to veterans Claims, all questions decide relevant “shall Subject or survivors of veterans. law, including interpreting constitutional (b), subsection the decision of the Secre- in statutory provisions.” legal Such tary any question as to such shall be are reviewed without defer terpretations final and conclusive not be Brown, F.3d ence. Jones by any reviewed other official or by *5 Brown, (Fed.Cir.1994); Mayer v. F.3d 37 court, in by an action na- whether the (Fed.Cir.1994). 618, 619 of ture mandamus or otherwise. Cox, in 511(a) (2000) As we confirmed the Court § (emphasis 38 U.S.C. adde Appeals d).1 the of for Veterans Claims “has The before question ultimate us is of in aid of power to issue writs mandamus “under a whether this case arises law that jurisdiction its under the AWA.” 149 F.3d affects the of benefits.” Id. Co., 1363; Dean also FTC v. Foods see I 597, 603, S.Ct. 16 86 U.S. (1966) (“The here, Secretary deciding in to exercise of this L.Ed.2d 802 The certification, acted potential pursu ... extends to terminate Bates’ power the [AWA] 5904(b). § jurisdiction appellate an ant to 38 of the court where Section 5904(b) Secretary to appeal pending may is not then but be authorizes the “sus or and perfected.”). propriety pend agents attorneys later The of a writ exclude” practice Bates argues of in this case turns on the before VA. mandamus 5904(b) itself a question Appeals the Court of is “law that of whether if jurisdic would affects the of benefits” because Claims have Veterans is clients will not By practice, tion to the GC’s decision. vir he unable to review Ap § tue of the Court be able secure the benefits 38 U.S.C. they agree. cannot The peals jurisdiction Claims has entitled. We for Veterans Board, canceling relationship decisions of the but between appellant’s securing accreditation and does review other Thus, far too Secretary. of benefits his clients is attenu decisions showing no that the question juris the Board had ated. Bates has made is whether has appeal. diction cancellation of his accreditation affect- over insurance); (3) exceptions and U.S. life 1. The set forth in 38 U.S.C. Government (1) 511(b) chapter arising § 37 of title 38 are: matters to 38 U.S.C. matters under (Federal (involving housing and small Circuit Ad- VA business over loans); (4) arising chapter Act and matters ministrative Procedure review of VA rule- process (covering appeals title making); covered 72 of matters Appeals §§ for Veterans (jurisdiction dis- the Court of 1975 and 1984 of federal Claims, and, ultimately, this court and the Group trict on Veterans' Life courts over suits Insurance, Court). Supreme Service Life Insurance National delivery of benefits entirety ed the VA section or whether section 5904 be part should considered of a only appellant’s Not could the claimant. single “law.” Other subsections of section attorney, sys- find another the VA clients deal closely with matters related to provides claimants with wide choice tem provisions decertification subsection including possible representatives, rep- 5904(b). Subsection authorizes the recognized service resentatives veterans practice to certify individuals for organizations agents good and claims 5904(c) before VA. regu Subsection with the 38 C.F.R. 14.629 standing VA. when, types, may lates and what of fees be argument that 38 U.S.C. charged agents attorneys, and sub is itself a “law that affects 5904(d), involved in our decision unpersuasive. of benefits” is Cox, contingency authorizes fees limited to is not A This the end the matter. 20% the total amount of past-due bene question whether further is subsection awarded, fits provides pay for direct 5904(b) should be considered a “law” of such appro ment the VA fees when (2000).2 separate apart from the of priate. remainder "Recognition agents titled on which the Board Veterans' attorneys generally,” entirety: reads in its first makes a final decision case. (a) allowed, may recognize any charged, in- Such fee or agent attorney dividual as an or paid provided in the case of services after presentation, preparation, prosecution agent date such if of claims under laws administered *6 respect retained with to such case before Secretary. Secretary may require The that one-year period end of beginning the the on individuals, being recognized before under preceding that date. The limitation in the section, good they show this are of apply provid- sentence does not to services good repute, moral character and in are respect proceedings with to ed before a qualified to render claimants valuable ser- court. vice, competent and otherwise are to assist (2) who, person acting agent A as or at- presenting claimants in claims. (1) torney paragraph in a case to referred in (b) Secretary, oppor- after notice and subsection, represents person this a be- tunity hearing, may suspend for a or ex- Department or fore the Board of Veter- from practice clude further before the De- Appeals ans' after Board makes a first any recognized partment agent or copy final decision in case shall file a this under section if the finds that any agreement fee between with the them agent attorney— or such may specified by at Board such time as be (1) unlawful, engaged any unprofes- has in Board, upon Board. own mo- its sional, practice; or dishonest request may or party, tion of either conduct; (2) guilty disreputable has been agreement may review such a fee order (3) incompetent; is a reduction in the fee called in the for (4) comply has violated or with refused agreement if the Board finds that the fee is any of the laws administered the Sec- finding excessive or A unreasonable. or retary, any regulations or with or preceding order of the under Board governing practice instructions before the may sentence be reviewed the United Department; or States Court of for Veterans Claims deceived, misled, (5) any in has manner or 7263(d) under section of [Title 38]. any prospective threatened actual or charged may A fee reasonable be or claimant. any paid proceeding in with connection be- (c)(1) Except provided paragraph in Department arising fore the in a out (3), case proceeding connection a in with before made, guaranteed, a loan insured Department respect or under with to benefits un- chapter person Secretary, [Title 38]. A who der laws a administered allowed, charges may charged, paid paragraph a fee under shall fee not be agreement agents attorneys for into a services enter written with the respect provided represented person copy services before the date a shall file law, Law num we enactment that bears a Public single itself a If 5904 is 5904(d), that subsection already Large. Congress held at ber the Statutes amount be governs the “law,” specifically has not defined the term attorneys contingency on a awarded 106a but both the Constitution and Section benefits, “affects the past-due basis of Title 1 of the Code make United States Cox, at of benefits.” provision duly clear that a law is a bill that has been case, Cox, attorney, rep- In that approved by Congress Houses of both in a a veteran before the. VA resented (or enacted over signed the President benefits, twenty per- a subject to claim for veto). Const., I, 2; art. cl. his U.S. arrangement fee contingent cent (2000).3 Congress 106a has also pay was to the fee which the laws, duly made clear that such once en benefits as lawyer past-due out of acted, published to be in the Statutes 5904(d). We rea- provided in subsection (2000). Thus, a Large. claim to entitlement soned Cox’s Law appearing “law” is a Public justiciable by the as the his fee was Large. Statutes at There is no basis Secretary, reaching required the claim history, statutory language, legislative decision, necessarily interpret sub- authority construing or case the term 5904(d), “that affects a particular “law” to limited to a statuto be Thus, if of benefits.” Id. subsection, ry government urges. as the whole, is to considered as a section 5904 construing Nor is there basis part of a “law that subsection is “law,” apparently term as the concurrence benefits,” and the affects do, statutory a particular seems to to be jurisdiction. Board has section. The cases cited the concur
II rence, “law” used to where the term statute, section of a can specific describe think that section 511’srefer We a matter of statutory hardly be read to hold as single to a “law” is to a ence *7 (3) past-due agreement at To the extent that the fee with the manner, time, any proceeding may awarded in before the and in such as be such Appeals, Secretary. Secretary, Veterans' specified by the Board of the (d)(1) attorney Appeals a States Court of When claimant or the United Claims, may agreement direct have entered into a fee described Veterans the subsection, (2) attorneys’ paragraph payment any of the total fees under a this of (1) attorney may payable paragraph not exceed arrangement fee to the fee described any past- percent past- of the total amount out of such of this subsection be made awarded on the basis of the due benefits event the Secre- due benefits. In no purpose pay- tary claim. the of such withhold for (2)(A) agreement to in any portion payable A fee referred for a ment of benefits paragraph the total period is one under which the date of the final decision of after attorney — n payable Secretary, Ap- fee amount of the the the Board of Veterans' (i) attorney by paid to the Veterans peals, is to or Court of of) (or Secretary directly past-due ordering making bene- making from Claims claim; awarded on the basis of the fits award. (ii) contingent whether or not the § is on 38 U.S.C. 5904. matter is resolved in manner favorable laws,” "Promulgation 1 U.S.C. 3. Titled the claimant. by (B) (A) procedures § which 106a sets forth the purposes subparagraph For bill, order, Congress, resolution or vote of paragraph, a claim shall be considered President, "having approved been in a manner favor- been resolved have having him with his been returned any part of the able to the claimant if all or effect.” objections, a law or takes sought granted. becomes relief is statutory construction that the term “law” fairs 1991, Health-Care Personnel Act of to a particular 102-40, 402, should be limited numbered § Pub.L. No. 105 Stat. 187- Concurring 238-39; section of the law. Op., post at 102-40, amended VPub.L. Title IV, n. 2. 402(b)(1), (d)(1), § 7, 1991, May 238, 239; Stat. by, amended Veterans Pro- Here, public the relevant “law” is the grams 1998, Enhancement Act of Pub.L. 5904, originally law that enacted section 512, 3315, § No. 112 Stat. 1936, 867, ch. the Veterans Act of 49 Stat. history Neither the of the amendments to II of 2031.4 Title Act of Veterans law, changing nor its position in the 1936, “Agents Attorneys,” entitled United through States Code passage § predecessor of 38 U.S.C. 5904. Title statutes, a series of consolidation alters the II from the differed current section 5904 that, originally enacted, fact as only in respects, including limited im part 5904 was of a Public Law “that position a $10-per-claim limitation on affects the of benefits” and (and consequently fees the ab subject therefore is review the Board sence of a separate provision regarding and the Court of Appeals for Veterans fees), contingency and the inclusion of the Claims under the terms of 38 U.S.C. criminal penalty provisions for improper § 511. (now practice separately codified as 38 5905). Compare Veterans Act of Stat. with 38 history purpose of section U.S.C. 5904 511(a) confirm the correctness of our inter- Title II of the Veterans Act of 1936 has pretation. connection, In this some under- and, noted, repealed never been has standing history of section largely unchanged original- remained since necessary. ly enacted 1936. The current codifica- exceptions, With minor origin tion of section 5904 reflects a series of federal of veterans’ benefits law, original amendments to the as well as until Congressional philosophy law, the placement of that together with was that benefits decisions the execu- other laws related to veterans that do not judicial tive should not be re- necessarily involve the of bene- view. This philosophy was reflected in the fits, changes into Title 38. These predecessors general- transpired through promulgation *8 ly precluded judicial review of benefits de- passed, consolidation statutes in inter alia cisions. 2, 1958, 1958 Sept. and 1988. Act of 85-857, 3404, Pub.L, 1105, § No. 72 Stat. predecessor 511(a), to section name 1238-39; Act, 211(a), Veterans Judicial Review ly section originally was enacted as 100-687, 104(a), § Pub.L. No. 102 separate Stat. two provisions that were consoli 4105, (1988); renumbered’§ 1958, 4108 5904 and dated in resulting in 38 U.S.C. 211(a).5 by, amended Department § of Veterans Af- judicial This barred areas, provisions claims; The other of the 1936 Act dealt relating ous all to benefits provided Title V with related hurricane issues: Title relief for World I relaxed restrictions War dependents. veterans and their 49 Stat. compensation on War World Widows and at 2031-35. Children; Title III the VA with the provided authority subpoenas, investiga- to issue make 1933, 5. The first was enacted in tions, and processing administer oaths when Act, 3, Economy under the ch. 48 Stat. 9 claims; benefits IV Title covered miscellane- (1933) and the latter in 1940 as amend-
1363
211(a) (1982)
of the Administrator’s decisions “on 38
(codifying
review
Act of
12, 1970, 8(a),
790).
concerning
Aug.
fact
any question of law or
84 Stat. at
No
independent judicial
payments
any
claim for benefits or
under
review benefits de
by the
cisions
available.
law administered
Veterans’ Admin
was
As noted
211(a) (1958).
Supreme
Robison,
in
istration.” 38 U.S.C.
Court
Johnson v.
415
.
361,
1970,
1160,
Congress amended the statute ex U.S.
94 S.Ct
view of decision of the Administrator appropriate to give a narrow construction any ‘on or fact question any of law 511(a), to section as is done with all provi law administered the Veterans’ Admin precluding judicial sions review. See Ab ” 18-19, reprinted istration.’ Id. at Gardner, 136, 140, bott Labs. v. 387 U.S. 1988 U.S.C.C.A.N. at 5800. S.Ct. (recog L.Ed.2d 681 nizing judi a basic presumption favor of Thus, prior pro- review); cial see Magno also de De that, exception vided of review of States, (D.C.Cir. United regarding life insurance and decisions n 1980) (“[Jjurisdictional limitations are in loans, housing small business and narrowly, terpreted eye with an both to of the Administrator on [T]he decisions avoiding potential constitutional difficul any or question any law fact under ties, preserving and to the Courts’ tradi administered Veterans’ Ad- deciding legal disputes.”). tional role of providing ministration veter- purpose, But but not the lan dependents ans and their or survivors guage, changed of this section dramatical final shall be and conclusive and no oth- ly- any er official or court of the United shall have power passage States of the Veterans’ Judicial (‘VJRA”) to review such decision an action provided Review Act veterans *9 day in the nature of Forshey mandamus otherwise. with their in court. See 1924, 211(a) (1958) through ment to the World War Veterans' Act of the conversion —back 17, 1940, 11, 893, enactments). original see Act to these two of Oct. ch. 54 tables 1193, Davis, Stat. 1197. Frederick Veterans' Review, Benefits, Judicial exception and the Constitu- 6. A rule narrow the foreclosure Government, by Supreme tional Problems “Positive" 39 was carved out the Court in 183, Johnson, 367, 1160, (tracing Ind. L.J. 186 n. 12 id. at 94 S.Ct. for certain 511(a) challenges 1958 version of section constitutional to the VA’s actions. —38 1364 (Fed.Cir. 1335, F.3d 1344-45
Principi, appellate jurisdiction 284 Circuit with exclusive (en banc) 2002) (summarizing major over the decisions of the Court of Appeals judicial review with the enact changes to for Veterans Claims. Veterans’ Judicial YJRA); Brown, Beamon v. (codified ment of the Act, § Review as amended at (6th Cir.1997) (same). 965, 511(a) seq.). 7251 et by original House As noted one (then section 211(a)) originally designed — legislation was “intended to sponsors, judicial entirely to bar review —became consistent, produce timely, and fair deci provision that scope defined the truly independent in a sions for veterans jurisdiction, therefore, Board’s and that of by not be burdened other court which will the new Article I court.8 nothing to do with veterans.” having cases Thus, the effect of the legislation 3, (daily Rec. H9258 ed. Oct. Cong. generally place judicial was to review of 1988)(statement Solomon). Rep. Secretarial decisions “under a that af expected this might One reversal of fects the provision of benefits” within the judicial congressional policy concerning re specialized process.9 Congress brought repeal view to have about the plainly preferred approach a mat 211(a). Rather, It did not. section policy, ter of both because it avoided over 211(a) broadly judicial continued to bar burdening system' the district court and decisions, an excep review of benefits but because the district courts lacked the nec judicial tion was created for review of such essary expertise. Report As the House newly decisions created Article I noted, already the “courts have far too 511(b)(4).7 court. At handle,” many H.R.Rep. cases No. 100- time, Congress same added new sections 963, 22, reprinted at in 1988 U.S.C.C.A.N. 38, today’s to Title reflected versions of 5804, at legislation and the pre aimed to 72, Chapters reforming existing 71 and reviewing vent being “put courts from in a internal mechanisms for the review of ben position [they where no have] idea of an regional the VA efits decisions offices agency’s particular legal ques views on a Board; specifically and providing tion.” Id. at reprinted in 1988 judicial for independent review of the U.S.C.C.A.N. at 5809. Board’s final decisions a new Article I known Appeals (today 511(a), In history Court Veterans view of the of section as the nothing suggest Court Veterans Vet we see that interpreta- Claims); providing erans and the Federal tion of the section in accordance with its 211(a) 7. Section was renumbered as decision under a law that affects the Department H.R.Rep. 1991. Veterans Af- of benefits. No. at Act, 102-83, 2,§ reprinted fairs Codification Pub.L. No. in 1988 U.S.C.C.A.N. 5809. Stat. 388-89 exceptions 9.The listed to this overall keeping provi- role regulations promul- new for the scheme were rules and sion, Congress gated by "[t]he noted that effect of [re- which are reviewed placing directly law administered 'under in this court under 38 U.S.C. 502; 511(b)(1) providing §§ Veterans’ Administration benefits' disputes, insurance with 'under a law that affects the which are reviewable in the district courts 511(b)(2) 1975; scope §§ is to benefits'] broaden of section under 38 U.S.C. 211,” provided example arising of a Chapter pertaining decision matters loans, which, regarding potential regula- housing conflict in VA and small business prohibiting 511(b)(3) §§ tions with another law discrimi- under 38 U.S.C. allow *10 against being persons against nation disabled re- for suits in state or through appeals process viewable the VA as a federal court.
1365 issues, congression- closely plain language would disserve related and undermine the passage congressional purpose. al intent behind the 1988 legislation. contrary, interpre- To the an IV 511(a) generally
tation of section
that
’
decisions un-
places review Secretarial
proposes
concurrence
to depart
in
single piece
legislation relating
der a
plain meaning
from the
interpretation of
part
whole or in
to benefits first
theory
majori
section 511 on the
that the
Board,
and then
the Court of
ty’s interpretation
could,
Claims, clearly
for Veterans
serves the
in the case of
statutory
omnibus
enact
congressional purpose.
ments;
confer
disputes
over
Congress
that
could not have intended to
particularly
This is
clear from the fact
Board,
refer to the
disputes
such as
over
that
decisions under subsection
Secretarial
or employment appeals.
contracts'
Con
5904(b) are,
case,
likely
as in this
also
to
We,
curring Op., post at 2-3.
need
interpretations of other
involve
subsec
here,
interpretative
address
this
issue
subject
that
tions
themselves are
question
the law in
is not
since
such an
specialized
process.
We held
statutory
omnibus.
any
enactment.
5904(d)
Cox
subsection
event,
holding
go
our
does not
far
so
as the
specialized
process.
149 F.3d
review;
concurrence suggests, and does not confer
at 1365.
have also held that
We
jurisdiction in
myriad
the Board
over
Board
over
has
actions taken
disputes
every
arise under
“law”
5904(c). See,
under
e.g.,
subsection
Scates
“affects the
of benefits.”
(Fed.Cir.
Principi,
v.
282 F.3d
1366
511(a)
apply
every
does not
2002) (discussing
power
Board’s
to assess
challenge
to an action
the VA. As we
attorney
reasonableness of
fees and order
held,
only applies
where there has
if necessary
their
reduction
under
Secretary.”
been a “decision
Han
5904(c)(2)); Cox,
U.S. COSTS (1974)). as we held that section Just No costs. 511(a) preclude read to cannot be Tucker BRYSON, Judge, Circuit jurisdiction, concurring Act cannot be the result. jurisdiction preclude to in other tri read specifically- bunals when I agree with the result reached Id. at Congress. conferred case, court in this path but not
the court follows to reach that result. In the case of contract and em particular, I agree cannot with the court’s ployment disputes, these other review construction phrase of the “law that affects mechanisms have been held to be exclu appeals pursued
sive. Contractor dependents veterans or the or survivors 511(a). exclusively veterans.” 38 I the Court of Federal Claims U.S.C. would phrase construe that spe- refer appropriate agency or the board of con legal provisions cific provi- that affect the appeals. England tract R. Sherman court, sion of veterans’ benefits. The how- (Fed.Cir. Corp., Smoot ever, phrase construes that broadly, more 2004) Act, (citing Disputes the Contract to any public refer contains 609(a)). §§ 606 and Employment some provisions. veterans’ benefit disputes under the Civil Service Reform all, exclusively laws, Act are if at appealable, problem public is that particu- larly in years, recent have often Systems the Merit Protection un not been subject. confined to a single public Some part der 5 as of the “inte run laws to hundreds of pages and deal grated statutory up by set scheme Con with a myriad subjects. of different Some- gress protect civil servants.” United subjects times the multitude touched Fausto, 439, 444-51, 453, States v. 484 U.S. upon in single public law include veter- (1988) (hold S.Ct. 98 L.Ed.2d ans’ benefits. For example, Transpor- ing that preclud Civil Service Reform Act Equity tation Act for the 21st Century, ed in the Court of Federal Claims (1998), Pub.L. No. 112 Stat. 107 underlying personnel decision giving runs to more than 400 pages. Among the pay). rise to the claim for back Nothing topics public various in that law are three say today suggests we that the Board has pages of provisions dealing with veterans’ jurisdiction to review controversies that benefits. definition, Under the court’s are committed statute to other tribu entire Transportation Equity Act is a “law nals. that affects of benefits” for veterans.
CONCLUSION
The court’s construction of the phrase
“law that affects
of benefits”
For these reasons we conclude that the
referring
to an entire public law would
jurisdiction;
Board had
that the Court of
appear to
extend the
jurisdic-
for Veterans Claims had
range
BVA to a wide
of actions
tion; and that a
writ mandamus should
Secretary for which
appeals
BVA
issue to direct the Board to decide the
never been considered appropriate. Con
matter. Accordingly, the decision of the
sider, for example, the Veterans Health
Court of Appeals for Veterans Claims is
Care,
Asset,
Capital
and Business Im
AND
REVERSED
REMANDED.
provement Act of
Pub.L. No. 108-
*12
170,
public
exceptions
That
law con
do
117 Stat.2042.
not include
spe-
review
extending
increasing
and
provisions
tains
cialized
Sys-
tribunals such as the Merit
classes,
in various
benefits to veterans
tems Protection
agency’s
Board
clearly qualifies
public
it
a
law that
thus
as
Appeals,
Contract
or the Court of Fed-
of benefits” to veter
“affects
Thus,
eral Claims.
the court’s construc-
language
as the court construes that
ans
tion of section 511
appear
would
to lead to
public
511. But that
law also the conclusion that
employment
certain
provisions relating
contains
non-benefit- and contract matters would be reviewable
related matters such as the construction of by the BVA and the Veterans Court.
promotion and ap
VA facilities and the
The court
problem
resolves the
pointment of certain
employees.
VA
Con
statutory conflict
created
its construc-
gress plainly
disputes
did not intend for
tion of
section 511
favor of the statutes
arising
portions
public
under the
of that
assign jurisdiction
that
employment
over
dealing
employment
and con
specialized
contract matters to
tribu-
subject
struction to be
preferable
nals. But the
construction of
of the BVA. Yet that would seem to be the
section 511 is one that does not create such
result of the court’s construction of the
a
place.
conflict in the first
It is clear that
that
phrase
“law
affects the
Congress
create,
did
intend to
or be-
benefits.”1
creating,
lieve it was
such
conflict in
broad
court’s
construction
section
1970, when it adopted
essentially
is
what
problematical
because of section
language
current
of section
see
511(b).
511(a) provides
91-376,
(1970),
Pub.L. No.
84 Stat.
any ques-
decision of the
as to
or in
it
1988 when
amended section 511 to
scope
tion within its
“shall
final and
provide for review of veterans’ benefits
by any
conclusive and
not be reviewed
Court,
matters
the Veterans
see Pub.L.
court,
by any
other official or
whether
100-687,
No.
102 Stat. 4105
See
action
the nature of mandamus or
(1970),
H.R.Rep.
reprinted
No. 91-1166
otherwise.” Section
contains
(“The
1970 U.S.C.C.A.N.
re-
511(a)’s
exceptions
four
to section
bar
stated section
will make
[now
511]
review,
exception
one of which is the
perfectly
Congress
clear
intends
permits
review
the Veterans Court.
preclude
judicial
all
deter-
exceptions
The other
deal with narrow
respect
minations with
to noncontractual
Departmen-
matters:
the review of
provided
for veterans and their
court;
regulations
tal rules and
in this
survivors.”). Moreover,
dependents
suits in district court on claims related to
insurance;
federally provided
“specialized
the court’s resolution of the
and suits un-
der chapter
relating
problem
problem
37 of Title 38
to hous-
tribunal”
leaves another
ing and small business loans. Those four
unaddressed. The court’s construction of
unique
disposition,
management
proper-
1. The 2003 statute is not
in this re-
of real
gard.
also,
example,
For
the Veterans Benefits
ty.
e.g.,
See
Veterans Millennium
Improvement
and Health Care
Act of
Act,
Care and
Health
Benefits
Pub.L. No.
106-419,
Pub.L. No.
114 Stat.
contains
(1999) (statute
Stat.
con-
provisions pertaining
a number of
to veter-
provisions regarding
tains
veterans' benefits
benefits,
ans’
but also contains other matters
provisions pertaining
voluntary sep-
plainly
contemplation
outside the
of laws
program
aration incentive
to reduce the level
benefits,”
affect[ ]
"that
such
employment
Department
in the
of Veterans
provisions governing
pay
of VA nurses
Affairs).
involving
acquisition,
and transactions
dependents
not solve the broader
veterans or
511 does
survivors of
veterans,” i.e.,
non-benefit-related matters
problem of
particular
whether the
stat
*13
committed under
that
not be
would
utory provision relates to the
or
substance
tribunal,
specialized
to a
but
circumstances
procedures
sys
of the veterans’ benefits
to be reviewed
a
expected
would be
tem.
question
most cases that
will be
the
court under
Administrative
district
easy to decide: Most of the statutes that
Act. As to such decisions aris-
Procedure
pertain
system
to the veterans’ benefits
law that contains some
ing
public
under a
subjects
address
the
such as
conditions
ap-
the
provisions,
court’s
veterans’ benefit
eligibility,
procedures
the
to be followed in
to render such non-
proach
appear
would
determining eligibility, and the amount of
renewable,
matters
if at
benefit-related
paid.
be
all,
and the
only in the BVA
Veterans
case,
In this
the connection between the
Court,
did
Congress surely
a result that
lawyers
certification of
of
conferral
non-
not intend. Yet to ensure that such
benefits on
veterans is
so obvious.
ju-
fall outside
benefit-related matters
Nonetheless, in light
agency’s long-
risdiction of the BVA and the Veterans
standing practice
regulating
the repre-
Court,
posi-
to circle back to the
one has
sentation of veterans so as to ensure that
applies only
tion
that section
legal pro-
beneficiaries obtain and retain the ben-
disputes arising
particular
under
entitled,
they
statutory
efits to which
pertaining
visions
benefits.
provisions authorizing the certification and
view,
my
is sim
approach,
The best
regulation
representatives
applicants
511 to
ply to construe “law’!
properly regard-
for veterans’ benefits are
law,
provisions of
not to
particular
refer to
ed as
“that
affect[
laws
]
disparate
legal provisions
collection of
ground,
benefits.” On that
I would hold
particular public
in a
appear
that
that 38 U.S.C.
is such a law and
construction,
ques
law.2 Under
that the Board of Veterans’
there-
jurisdiction
tion whether the Board has
jurisdiction
appeals
fore has
to hear
appeal
would turn on whether the
over
Secretary’s
decisions under that stat-
question
“affects the
statutory provision
of benefits
to ute.
"public
monplace
single statutory
court refers to its
law” con-
to refer to
sections
"plain meaning”
"laws,”
as the
of section
struction
and subsections
and not to reserve
as
agree.
certainly
It is
true the
511. I do not
designation exclusively
public
that
for whole
laws,
public
but that is
term "law” includes
See,
States,
e.g.,
v.
laws.
United
275
Gonzales
only
properly
say
public laws are
not to
that
1340,
(Fed.Cir.2001) ("section
F.3d
1343
654
example, the statute
referred to as laws. For
a
[of
105-85]
Public Law
...
law confer
grants
question
that
federal
ring rights, privileges,
upon
or benefits'
cer
courts,
1331, prescribes
federal
veterans”);
tain World War
United
II
States v.
being
based on the
the courts'
as
Cruz,
623,
(9th Cir.2004)
Dela
358 F.3d
“Constitution, laws, or treaties of the United
844(e)
("Section
gen
Title
is a law of
[of
18]
States,” yet
"laws”
that
the term
statute
Smirl,
application”); Rayner
eral
v.
public
has not
See
been limited
laws.
60,
(4th Cir.1989) ("Section
Title
[of
Milwaukee,
City
Illinois v.
406 U.S.
99-
clearly
'relating
safety'
is a
45]
law
to railroad
92 S.Ct.
of the means which the has
sought to ensure that veterans not de-
prived of they the benefits properly
entitled. It is therefore consid-
ered a “law that affects the
to veterans or
Joseph
CARSON, Petitioner,
P.
dependents
or survivors of veterans.”
Both the construction of section 511 and
ENERGY,
DEPARTMENT OF
analysis
of section
I
Respondent.
proposed
prior
are consistent with our
de
(Fed.
West,
cision Cox v.
Cox authorized the to withhold a
portion past-due benefits owed to
claimant pay and to those withheld bene attorney.
fits to an Because section