Lawrence v. Wilkie, 20-5697
| Decision Date | 22 December 2020 |
| Docket Number | 20-5697 |
| Parties | James E. Lawrence, Petitioner, v. Robert L. Wilkie, Secretary of Veterans Affairs, Respondent. |
| Court | United States Court of Appeals For Veterans Claims |
Before MEREDITH, TOTH, and LAURER, Judges.
On August 13, 2020, the petitioner, James E. Lawrence, through counsel filed a petition for extraordinary relief in the form of a writ of mandamus seeking to compel VA to forward a copy of his claims file to his counsel. Petition (Pet.) at 1, 5. The petitioner asserted the following: (1) a VA regional office (RO) issued a rating decision in August 2019 denying entitlement to disability compensation for psychiatric disorders; (2) his appointed counsel requested a copy of his claims file in November 2019 utilizing VA Form 10-5345 Request for and Authorization to Release Health Information (3) the RO acknowledged his "Privacy Act request" in November 2019; (4) his counsel made additional requests for the claims file in January and March 2020; (5) in August 2020, he appealed the RO's decision to the Board of Veterans' Appeals (Board); and (6) to date, his counsel had not yet received a copy of his claims file. Pet. at 2-3; Exhibits 1-7. VA Form 10-5345 reflects that "[t]he information requested on this form is solicited under Title 38 U.S.C." and that "[t]he form authorizes release of information" pursuant to the Health Insurance Portability and Accountability Act, the Administrative Procedure Act (APA), the Freedom of Information Act (FOIA), 38 U.S.C. §§ 5701 and 7332, and the Privacy Act. Pet. at Exhibit 4. The petitioner maintained that VA has unreasonably delayed in forwarding his claims file to his counsel and that the factors considered when assessing claims of unreasonable delay weigh in his favor. Pet. at 3-5.
The Court, on September 1, 2020, ordered the petitioner to file a supplemental memorandum of law addressing the Court's jurisdiction to provide the requested relief and ordered the Secretary to file a response to the petition that also addressed the Court's jurisdiction. The petitioner responded that the Court's authority to order VA to provide a copy of his claims file derives from the All Writs Act (AWA). Petitioner's Supplemental Memorandum of Law (Petitioner's Memorandum) at 2. In that regard, he averred that the Court's potential jurisdiction under the AWA "turns upon whether the relief sought in the mandamus petition could ultimately lead to the [C]ourt's review of a Board decision," and he indicated that granting mandamus relief where "a mandatory procedure has been unreasonably delayed at the Agency level" would "potentially result[] in a Board decision over which the [C]ourt would have appellate jurisdiction." Id. The petitioner further maintained that a writ of mandamus was warranted in these circumstances because VA is the sole custodian of his records, he has an indisputable right to his records pursuant to 38 C.F.R. § 1.577, and he cannot properly pursue his disability claims at the Agency without his claims file. Id. at 3-5.
The Secretary countered that the petitioner has not shown that the Court has jurisdiction to provide the requested relief. Secretary's Response to the Court's September 1 2020, Order (Secretary's Response) at 1-6. The Secretary first argued that the petitioner failed to "explain how the petition will lead to a final Board decision over which the Court will have jurisdiction." Id. at 2. In that regard, the Secretary noted that the petitioner has not argued that he sought his claims file beyond a Privacy Act and FOIA request, the matter before the Court pertains to a FOIA request for the claims file, and the petitioner's contention is contrary to the Court's precedent rejecting jurisdiction over matters of the Secretary's compliance with FOIA requests. Id. at 3-5 (). The Secretary further maintained that, although the petitioner argues that the claims file contains evidence related to his disability claims, he has not explained how a delay in providing the claims file impedes the appellate process. Id. at 5. Last, the Secretary responded that, even assuming the Court has jurisdiction over the petition, the petitioner has not demonstrated a clear and indisputable right to the writ. Id. at 6-8. Specifically, the Secretary argued that there has not been complete inaction by VA because the Agency has acknowledged the petitioner's request[1] and the petitioner has not shown that he lacks alternative means to obtain relief; he filed a Notice of Disagreement opting to attend a Board hearing and therefore any allegation regarding the duty to assist may be addressed by the Board in the normal course of the appeal. Id.
On October 1, 2020, the matter was referred to a panel of the Court to determine whether the Court has jurisdiction to provide the relief sought by the petitioner, and on October 26, 2020, the Court granted the petitioner's motion for leave to file a reply to the Secretary's Response. Regarding the Court's jurisdiction, the petitioner maintained that the Secretary's interpretation of the AWA "leaves claimants in a proverbial catch-22 situation, depriving them" of access to records necessary to pursue their claims. Petitioner's Reply at 4. He further challenged the Secretary's reliance on Struck and Mangham and argued that "the [C]ourt's terse dicta [in Struck] in response to a pro se [appellant]'s inartful pleading hardly constitutes a considered holding." Id. at 4-5.
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). "[J]urisdiction to issue a writ of mandamus pursuant to the AWA relies upon not actual jurisdiction but potential jurisdiction." In re Fee Agreement of Cox (Cox I), 10 Vet.App. 361, 370 (1997), vacated on other grounds sub nom., Cox v. West (Cox II), 149 F.3d 1360 (Fed. Cir. 1998).
This Court's appellate jurisdiction derives exclusively from statutory grants of authority provided by Congress and may not be extended beyond that permitted by law. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988). Hence, it is well established that the AWA does not extend this Court's jurisdiction. See Cox II, 149 F.3d at 1363; see also Heath v. West, 11 Vet.App. 400, 402-03 (1998). Because the AWA "is not an independent basis of jurisdiction, . . . the petitioner must initially show that the action sought to be corrected by mandamus is within [the] court's statutorily defined subject matter jurisdiction." Baker Perkins, Inc. v. Werner & Pfleiderer Corp., 710 F.2d 1561, 1565 (Fed. Cir. 1983); see Pennsylvania Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985) ().
The Court's appellate jurisdiction is governed by section 7252 of title 38, U.S.C., which provides that the Court "shall have exclusive jurisdiction to review decisions of the Board." 38 U.S.C. § 7252(a). The Board, in turn, has jurisdiction to consider "[a]ll questions in a matter which under section 511(a) of . . . title [38] is subject to decision by the Secretary." 38 U.S.C. § 7104(a). And, pursuant to section 511(a), "[t]he 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." 38 U.S.C. § 511(a). Therefore, the Court's jurisdiction to issue the order sought by the petitioner pursuant to the AWA depends on whether the grant of the petition could lead to a Board decision over which the Court would have jurisdiction. See Cox I, 10 Vet.App. at 371.
As an initial matter, answering that question requires the Court to consider, and the petitioner to show, that the case "arises 'under a law that affects the provision of benefits.'" Bates v. Nicholson, 398 F.3d 1355, 1359 (Fed. Cir. 2005) (quoting 38 U.S.C. § 511(a)); see McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 188-89 (1936) (); Bethea v. Derwinski, 2 Vet.App. 252, 255 (1992). The petitioner also must show that VA's actions in question could be the subject of a Board decision, Yi v. Principi, 15 Vet.App. 265, 267 (2001) (per curiam order) (), and that this Court would have subject matter jurisdiction to consider a Board decision on that matter, see, e.g., Wanner v. Principi, 370 F.3d 1124, 1129-31 (Fed. Cir. 2004) (discussing a matter that had been removed by statute from the Court's jurisdiction).
As indicated above, the petitioner submitted VA Form 10-5345 and asks the Court to compel the Secretary to fulfill his request by providing not only his claims file, but also medical records including health summaries, inpatient discharge summaries, progress notes, operative and clinical procedures lab results, radiology reports, and lists of active medications. See Pet. at Exhibit 4. Although that form also references other authorities, the RO construed the petitioner's Form 10-5345 request as a Privacy Act request-a characterization that his counsel acknowledged in follow-up correspondence with the RO. See Pet. at 2, Exhibits 4-7. Before the Court, he does not allege that he sought to obtain his claims file and related documents other than pursuant to the FOIA or the Privacy Act, nor does he contest the Secretary's assertion to that effect. See Secretary's Response at...
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