Love v. McDonough

Decision Date23 June 2022
Docket Number21-1323
PartiesCharles J. Love, Jr., Petitioner, v. Denis McDonough, Secretary of Veterans Affairs, Respondent.
CourtUnited States Court of Appeals For Veterans Claims

Charles J. Love, Jr., Petitioner,

Denis McDonough, Secretary of Veterans Affairs, Respondent.

No. 21-1323

United States Court of Appeals For Veterans Claims

June 23, 2022

Before MEREDITH, FALVEY, and LAURER, Judges.



On March 2, 2021, Army veteran Charles J. Love, Jr., through counsel, petitioned the Court for extraordinary relief in the nature of a writ of mandamus. Mr. Love, whose 100% rating for prostate cancer was discontinued and replaced with a new 20% rating for prostate cancer residuals, argues that the Secretary may not implement that discontinuance until all appeals have been exhausted. He asks the Court to order the Secretary "to cease unlawfully withholding disability compensation" and "to pay him all amounts due consistent with [his] pre-reduction rating evaluation until his challenge to the reduction has run its course." Petition (Pet.) at 1. Because 38 U.S.C. § 7252(a) provides our sole source of jurisdiction and the petitioner has not shown that a writ would be in aid of that jurisdiction, we will dismiss the petition for a writ of mandamus.


Mr. Love served on active duty from January 1968 to March 1971. Pet., Exhibit (Ex.) 1 at Appendix (App.) 2. He is service connected for prostate cancer and was rated 100% disabled. Pet., Ex. 1 at App. 4, Ex. 5 at App. 24; see 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7528 (2021). In February 2019, the VA regional office (RO) proposed to "reduce" Mr. Love's evaluation for prostate cancer, status post radical prostatectomy, from 100% to 20%, and to discontinue special monthly compensation (SMC) based on the housebound criteria.[1] Pet., Ex. 1 at App. 2-5. On


February 13, 2019, VA sent a letter notifying Mr. Love of the proposed change in rating that would reduce his monthly payments from $3,530.47 to $3,165.70. Secretary's (Sec'y's) Response (Resp.), Attachment (Attach.) A at 1-3. He was informed that he had 60 days to submit additional evidence and 30 days to seek a hearing to contest the change. Id. at 2; see § 3.105(e), (i). On April 3, 2019, Mr. Love challenged the proposed change, arguing that VA had not complied with 38 C.F.R. § 3.344(a). Pet, Ex. 2 at App. 7-10.

In September 2019, the RO issued a decision that discontinued the 100% prostate cancer rating and SMC, and granted a 20% rating for prostate cancer residuals, effective December 1, 2019. Pet., Ex. 3 at App. 12-15. In October 2019, VA sent Mr. Love a letter notifying him of the RO's decision. Sec'y's Resp., Attach. B. In December 2019, Mr. Love filed a Notice of Disagreement and requested direct review. Pet., Ex. 5 at App. 22-31. In December 2020, the Board of Veterans' Appeals decided that the discontinuance of the 100% rating and SMC at the housebound rate, effective December 1, 2019, was proper. Pet., Ex. 6 at App. 37-50. Mr. Love appealed to this Court in February 2021, and his appeal is pending as Love v. McDonough, U.S. Vet. App. No. 21-1265 (Notice of Appeal filed Feb. 26, 2021).

On March 2, 2021, Mr. Love petitioned for extraordinary relief, arguing that VA may not decrease his payments until his appeals are exhausted and that thus the Secretary is unlawfully withholding payment in the pre-discontinuance amount. Pet. at 1-2. On October 22, 2021, the Court heard oral arguments, and the parties later submitted supplemental briefing.


In his petition for a writ of mandamus, Mr. Love asks this Court to find that the Secretary's reduction in benefits was unlawfully premature and order the Secretary to resume payment in the pre-discontinuance amount until his appeals are exhausted. Pet. at 2. He advances three grounds for this Court to exercise its authority to grant extraordinary relief. First, he argues that the Secretary's action (refusing to continue payment in the pre-discontinuance amount) has precluded a future appeal of any potential overpayment dispute, thereby thwarting this Court's prospective jurisdiction under 38 U.S.C. § 7252(a) and warranting a writ in aid of our jurisdiction under the All Writs Act (AWA). Pet. at 11, 14; see 28 U.S.C. § 1651(a). Second, he argues that, having "opened the jurisdictional door" with the AW A, 38 U.S.C. § 7261(a)(2) authorizes this Court to "compel action of the Secretary unlawfully withheld." Pet. at 12 & n.l; Petitioner's (Pet'r's) Supplemental (Suppl.) Resp. at 8. Third, he argues that this Court has jurisdiction and may issue a writ "in aid of Federal Circuit jurisdiction" based on section 7252(c). Pet. at 3-11; Pet'r's Reply at 2-7.

The Secretary responds that Mr. Love is not entitled to a writ of mandamus because the ordinary appeals process provides him with adequate alternative means to obtain his requested relief. Sec'y's Resp. at 11-17. He argues that the Secretary's action to implement a discontinuance is either a ministerial act that flows from that discontinuance decision, and thus not a separate decision under 38 U.S.C. § 511, Sec'y's Suppl. Resp. at 2-3, or a separate question that falls under


a law that affects the provision of benefits such that Mr. Love would be entitled to a decision on the matter if he had appealed the effective date of the discontinuance, id. at 3-5. In either case, the Secretary maintains that issuance of a writ is unwarranted because Mr. Love has launched no action before the Agency to challenge the implementation date nor has he requested an appealable decision. Id. at 5-7. The Secretary also argues that section 7252(c) is not an independent source of jurisdiction for the Court and that this matter falls outside our only statutory source of jurisdiction in section 7252(a). Sec'y's Resp. at 4-11.


For the reasons below, we reject Mr. Love's arguments and find that extraordinary relief would not be in aid of our jurisdiction.

A. The Court's Jurisdiction & AWA Authority

This Court is a statutory creation, 38 U.S.C. § 7251, and thus we can have no jurisdiction beyond what Congress has conferred by statute, Skaar v. Wilkie, 32 Vet.App. 156, 180 (2019) (en banc order); see Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988) ('"Courts created by statute can have no jurisdiction but such as the statute confers.'" (quoting Sheldon v. Sill, 49 U.S. 441, 449 (1850))). If a matter does not fall within our statutory jurisdiction, then we cannot address that matter.

This Court has only one source of jurisdiction: 38 U.S.C. § 7252(a). Skaar, 32 Vet.App. at 180. That provision grants us the "exclusive jurisdiction to review decisions of the Board of Veterans' Appeals." § 7252(a). Thus, "a final Board decision operates as the jurisdictional 'trigger' that gives us the authority to hear a particular appeal." Skaar, 32 Vet.App. at 180; see Ledfordv. West, 136 F.3d 776, 779 (Fed. Cir. 1998).

This matter is not before the Court on appeal from a final Board decision, and Mr. Love does not argue that it is. Thus, we have no basis to act according to our express statutory grant of jurisdiction. But under the AWA, we can act, even with no final Board decision, when it is in aid of our jurisdiction.

The AWA provides that "all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a); Monk v. Shulkin, 855 F.3d 1312, 1318 (Fed. Cir. 2017) ("The [AWA] unquestionably applies in the Veterans Court."); Gardner-Dickson v. Wilkie, 33 Vet.App. 50, 54 (2020) (noting that the AWA gives this Court "the authority to hear petitions and issue writs in aid of our jurisdiction"), aff'd sub nom. Gardner-Dickson v. McDonough, No. 2021-1462, 2021 WL 5144367 (Fed. Cir. Nov. 5, 2021) (per curiam judgment). That includes the power of this Court to issue a writ of mandamus, Cox v. West, 149 F.3d 1360, 1363 (Fed. Cir. 1998), including in aid of our prospective jurisdiction, where "an alleged refusal to act would forever frustrate the ability of [this Court] to exercise its appellate jurisdiction," Erspamer v. Derwinski, 1 Vet.App. 3, 8 (1990); see Gardner-Dickson, 33 Vet.App. at 54-55; see also Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943) (noting that the "function of mandamus in aid of appellate jurisdiction is to remove obstacles to appeal").


But a court cannot "assert jurisdiction on the basis of hypothetical scenarios" and prospective jurisdiction cannot depend on a "speculative chain of events." Moms Against Mercury v. Food & Drug Admin., 483 F.3d 824, 827 (D.C. Cir. 2007); In re Tennant, 359 F.3d 523, 529 (D.C. Cir. 2004) (establishing that, where no action has been taken that puts a matter on the path to a potential appeal, a future appeal remains hypothetical and so does not invoke a court's prospective jurisdiction); see Wolfe v. McDonough, 28 F.4th 1348, 1359 (Fed. Cir. 2022) (applying the standard from In re Tennant to a case appealed from this Court).

Thus, the threshold question for this Court is whether it has authority under the AWA to grant the relief Mr. Love requests. See Erspamer, 1 Vet. App. at 6. As the party invoking the Court's power, Mr. Love must show that we may exercise that power here. See McNutt v. Gen. Motors Acceptance Corp. of Ind, 298 U.S. 178, 189 (1936); Gardner-Dickson, 33 Vet.App. at 55 ("The AWA 'permits federal courts to fill gaps in their judicial power where those gaps would thwart the otherwise proper exercise of their jurisdiction.'" (quoting Monk v. Shulkin, 855 F.3d 1312, 1318 (Fed. Cir. 2017))). And, "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 this court's statutorily defined subject matter jurisdiction.'" Gardner-Dickson, 33 Vet.App. at 55 (quoting Baker Perkins, Inc. v. Werner & Pfleiderer Corp., 710 F.2d 1561, 1565 (Fed. Cir. 1983)); see Pennsylvania Bureau of Corr. v. U.S. Marshals...

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