Bates v. Nicholson, 04-7085.

• Decision Date: 28 February 2005
• Docket Number: No. 04-7085.,04-7085.
• Citation: 398 F.3d 1355
• Parties: R. Edward BATES, Claimant-Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

398 F.3d 1355

R. Edward BATES, Claimant-Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.

No. 04-7085.

United States Court of Appeals, Federal Circuit.

February 28, 2005.

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Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant.

David D'Alessandris, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Peter D. Kiesler, Assistant Attorney General, Daivd M. Cohen, Director, and Brian M. Simkin, Assistant Director. Of counsel on the brief were Richard J. Hipolit, Deputy Assistant General Counsel and Martin J. Sendek, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Before NEWMAN, BRYSON, and DYK, Circuit Judges.

Opinion for the court filed by Circuit Judge DYK. Concurring opinion filed by Circuit Judge BRYSON.

DYK, Circuit Judge.

The Secretary, acting through the General Counsel, terminated appellant R. Edwards Bates' ("Bates") accreditation to represent claimants before the Department of Veteran Affairs ("VA"). Bates sought review before the Board of Veterans Affairs ("the Board"). The Secretary declined to issue the Statement of the Case ("SOC") that Bates required to pursue his appeal. He then sought mandamus from the United States Court of Appeals for Veterans Claims to order the Secretary to issue the SOC so that he could appeal to the Board. The court found that the Board had no jurisdiction over the appeal, and accordingly, the court would have no jurisdiction over an appeal from the Board, thus rendering mandamus unavailable. We reverse the decision of the Court of Appeals for Veterans Claims and remand with instructions to issue the requested writ of mandamus.

BACKGROUND

Appellant Bates is an attorney who represents claimants for benefits before the VA. Such representation is permissible only if an attorney is accredited by the VA pursuant to 38 U.S.C. §§ 5901 and 5904(a). Bates was accredited. On July 28, 2003, following a hearing, the General Counsel of the VA ("GC"), acting on behalf of the Secretary, terminated Bates' accreditation, acting under the authority of 38 U.S.C. § 5904(b) and 38 C.F.R. § 14.633. The GC concluded that Bates had "engaged in unlawful practice and violated laws administered by the Secretary." (J.A. at 49.) In particular, the GC found that Bates had "accepted unlawful compensation for preparing presenting, and prosecuting claims for VA benefits in violation of 38 U.S.C § 5904(c)(1),... solicited and contracted for illegal fees in violation of 38 U.S.C. § 5905(1) ... [and] deceived and misled a claimant." (Id.) Bates was also accused of violating 38 U.S.C. § 5904(c)(2) by seeking unreasonable fees from his clients, although the GC did not directly address that violation in making his decision, finding it subsumed in the other charges. (Id. at 48.)

Bates urged that the Secretary's action was reviewable by the Board, because the Board's jurisdictional statute provides for review of "decision[s] by the Secretary under a law that affects the provision of benefits," 38 U.S.C. § 7104(a) (2000) (incorporating by reference, 38 U.S.C. § 511(a)), and because the Secretary's decision to cancel his accreditation under 38 U.S.C. § 5904(b) was such a decision. Accordingly, in August 2003, Bates filed a Notice of Disagreement ("NOD") as to the Secretary's decision with the VA's regional office and requested that the Secretary issue an SOC so that he could appeal to the Board. An SOC is a mandatory prerequisite to a Board appeal. 38 U.S.C. §§ 7105(a) and (d) (2000). The Secretary refused to issue the SOC, and thereby prevented a Board appeal. In October 2003, Bates filed a petition for extraordinary relief in the nature of a writ of mandamus in the Court of Appeals for Veterans Claims, requesting the court to order the Secretary to provide the SOC. The parties appeared to agree that Bates' entitlement to the writ under the All Writs Act ("AWA"), 28 U.S.C. § 1651(a), turned on whether the Board had jurisdiction to review the Secretary's action and whether the Court of Appeals for Veterans Claims ultimately had jurisdiction to review the Board's action.

The court held that it would possess jurisdiction to issue the writ only if the granting of Bates' petition could lead to a Board decision over which the court would have jurisdiction. The Court of Appeals for Veterans Claims held that the Board lacked jurisdiction in the first instance, and as a consequence, the court lacked jurisdiction, and therefore there was no authority to issue a writ of mandamus. 38 U.S.C. § 7252 (2000).

The court concluded that the provision which the Secretary noted, section 5904(b), was not "a law that affects the provision of benefits," and was therefore outside the Board's jurisdiction under 38 U.S.C. §§ 511(a) and 7104(a), and that the court therefore lacked jurisdiction under 38 U.S.C. § 7252. In holding section 511(a) to be inapplicable, the Court of Appeals for Veterans Claims distinguished our decision in Cox v. West, 149 F.3d 1360 (Fed.Cir.1998). Bates v. Principi, 17 Vet.App. 443 (Vet.App. 2004). Cox held that 38 U.S.C. § 5904(d), which authorizes the Secretary to withhold a portion of past-due benefits owed to a VA claimant and to pay those withheld benefits to an attorney, pursuant to an otherwise valid fee agreement, was a provision that "affects the provision of benefits" and therefore that the Secretary's decisions under the statute were subject to review pursuant to 38 U.S.C. § 511(a). 149 F.3d at 1365.

The Court of Appeals for Veterans Claims distinguished 38 U.S.C. § 5904(d), at issue in Cox, from 38 U.S.C. § 5904(b), at issue in Bates' case. The court found the latter provision to "pertain[ ] to a decision to terminate the accreditation of an attorney [and to] ... say[ ] nothing about VA benefits." Bates, at 445. Thus, the court dismissed Bates' petition for lack of jurisdiction. Id. at 445.

Bates timely appealed to this court. We have jurisdiction pursuant to 38 U.S.C. § 7292. Cox, 149 F.3d at 1362.

DISCUSSION

Our review of this question is governed by 38 U.S.C. § 7292(d)(1), which provides that this court, in reviewing decisions of the Court of Appeals of Veterans Claims, "shall decide all relevant questions of law, including interpreting constitutional and statutory provisions." Such legal interpretations are reviewed without deference. Jones v. Brown, 41 F.3d 634, 637 (Fed.Cir.1994); Mayer v. Brown, 37 F.3d 618, 619 (Fed.Cir.1994).

As we confirmed in Cox, the Court of Appeals for Veterans Claims "has the power to issue writs of mandamus in aid of its jurisdiction under the AWA." 149 F.3d at 1363; see also FTC v. Dean Foods Co., 384 U.S. 597, 603, 86 S.Ct. 1738, 16 L.Ed.2d 802 (1966) ("The exercise of this [AWA] power... extends to the potential jurisdiction of the appellate court where an appeal is not then pending but may be later perfected."). The propriety of a writ of mandamus in this case turns on the question of whether the Court of Appeals for Veterans Claims would have jurisdiction to review the GC's decision. By virtue of 38 U.S.C. § 7252, the Court of Appeals for Veterans Claims has jurisdiction to review decisions of the Board, but it does not have jurisdiction to review other decisions of the Secretary. Thus, the question is whether the Board had jurisdiction over the appeal.

Section 7104(a) of 38 U.S.C. limits the Board's jurisdiction to "all questions in a matter which under section 511(a) of this title is subject to decision by the Secretary." Section 511(a) states:

The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. Subject to subsection (b), the decision of the Secretary as to any such question shall be final and conclusive and may not be reviewed by any other official or by any court, whether by an action in the nature of mandamus or otherwise.

38 U.S.C. § 511(a) (2000) (emphasis added).¹ The ultimate question before us is whether this case arises "under a law that affects the provision of benefits." Id.

I

The Secretary here, in deciding to terminate Bates' certification, acted pursuant to 38 U.S.C. § 5904(b). Section 5904(b) authorizes the Secretary to "suspend or exclude" agents and attorneys from practice before the VA. Bates argues that section 5904(b) is itself a "law that affects the provision of benefits" because if he is unable to practice, his clients will not be able to secure the benefits to which they are entitled. We cannot agree. The relationship between the canceling of the appellant's accreditation and the securing of benefits by his clients is far too attenuated. Bates has made no showing that the cancellation of his accreditation has affected the delivery of benefits to any VA claimant. Not only could the appellant's clients find another attorney, the VA system provides claimants with a wide choice of possible representatives, including representatives of recognized veterans service organizations and claims agents in good standing with the VA. 38 C.F.R. § 14.629 (2004). The argument that 38 U.S.C. § 5904(b) is itself a "law that affects the provision of benefits" is unpersuasive.

This is not the end of the matter. A further question is whether subsection 5904(b) should be considered as a "law" separate and apart from the remainder of section 5904, or whether the entirety of section 5904 should be considered part of a single "law." Other subsections of section 5904 deal with matters closely related to the decertification provisions in subsection 5904(b). Subsection 5904(a) authorizes the Secretary to certify individuals for practice before the VA. Subsection 5904(c) regulates when, and what types, of fees may be charged by agents...