Prewitt v. McDonough

• Decision Date: 05 December 2022
• Docket Number: 22-3306
• Parties: George D. Prewitt, Jr., Petitioner, v. Denis McDonough, Secretary of Veterans Affairs, Respondent
• Court: United States Court of Appeals For Veterans Claims

George D. Prewitt, Jr., Petitioner, v. Denis McDonough, Secretary of Veterans Affairs, Respondent

No. 22-3306

United States Court of Appeals For Veterans Claims

December 5, 2022

Before PIETSCH, FALVEY, and JAQUITH, Judges.

ORDER

PIETSCH, JUDGE

On June 2, 2022, self-represented Army veteran George D. Prewitt Jr., filed a petition for extraordinary relief regarding a case that was previously before the Court but was remanded in part to the Board of Veterans' Appeals (Board). Mr Prewitt asserts that structural constitutional problems prevent the Board from adjudicating his case, and he asks the Court to take jurisdiction and resolve these issues. Because he does not show that he is entitled to extraordinary relief we will deny his petition.

I. FACTS

In July 2019, Mr. Prewitt appealed an April 2019 Board decision that denied various elements of several disability claims. In July 2020, the Court issued a single-judge decision affirming the Board decision in part, dismissing it in part, and setting it aside in part, and remanding the set aside matter.

In appealing the April 2019 Board decision, Mr. Prewitt argued that VA had violated his rights under the U.S. Constitution's Due Process and Takings Clauses. But the Court declined to address Mr. Prewitt's constitutional arguments, finding that the Board had failed to consider relevant evidence and that remand was thus necessary for the Board to consider the evidence in the first instance. See Prewitt v. McDonough, No. 19-5262, 2020 WL 4103039, at *3-4 (Vet. App. July 21, 2020) (mem. dec.) (citing Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) ("[I]f the proper remedy is a remand, there is no need to analyze and discuss all the other claimed errors that would result in a remedy no broader than a remand.")); see Hensley v. West, 212 F.3d 1255, 1263-64 (Fed. Cir. 2000) (noting that when a court of appeals reviews a lower court's decision, it may remand the case if the previous adjudicator failed to make findings of fact essential to the decision).

Mr. Prewitt then appealed to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). In March 2021, the Federal Circuit dismissed his appeal, declining to review the matters remanded by this Court to the Board and finding that Mr. Prewitt's constitutional challenges were inextricably intertwined with the remanded matters. See Prewitt v. McDonough, 856 Fed.Appx. 280, 282-83 (Fed. Cir. 2021). Mandate for this Court's single-judge decision issued in September 2021.

In June 2022, Mr. Prewitt filed this petition, asking the Court to take jurisdiction over and decide questions of "structural[] constitutional" law that he claimed prevented the Board from hearing his case on remand. Prewitt v. McDonough, U.S. Vet. App. No. 22-3306, June 2, 2022, Amended Petition for Extraordinary Relief (Petition) at 1. He also moved for initial review by a panel, which was later granted. Petitioner's June 6, 2022, CAVC Rule 27.1 Motion for Initial Review by a Panel; Aug. 18, 2022, Judge's Stamp Order Granting Motion for Review by Panel. The Court ordered the Secretary to respond to the petition. June 10, 2022, Order. In response, the Secretary asked the Court to construe the petition as requesting a writ of mandamus and to deny it. July 11, 2022, Secretary's Response to Petition for Extraordinary Relief and Court Order Dated June 10, 2022. Thereafter, Mr. Prewitt filed a motion to amend his petition, which the Secretary opposed. Petitioner's Sept. 1, 2022, Motion for leave to file an Amendment to the Petition as set out below; Sept. 15, 2022, Secretary's Opposition to Motion for Leave to File an Amendment to the Petition.

II. ANALYSIS

This Court has the authority to issue extraordinary writs in aid of its jurisdiction pursuant to the All Writs Act, 28 U.S.C. § 1651(a). See Cox v. West, 149 F.3d 1360, 1363-64 (Fed. Cir. 1998). However, "[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations." Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976).

Accordingly, three conditions must be met before a court may issue a writ: (1) the petitioner must lack adequate alternative means to attain the desired relief, thus ensuring that the writ is not used as a substitute for an appeal; (2) the petitioner must demonstrate a clear and indisputable right to the writ; and (3) the Court must be convinced, given the circumstances, that issuance of the writ is warranted. See Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81 (2004).

Pursuant to Rule 21(a), a petition for an extraordinary writ must, among other things,

(1) state the precise relief sought; (2) state the facts necessary to understand the issues presented by the petition; (3) state the reasons why the Court should grant the petition, including why the petitioner has a clear and indisputable right to the writ and why there are inadequate alternative means to obtain the relief sought; [and] (4) include an appendix containing copies of any order or decision or any other documents necessary to understand and support the petition.

U.S. VET. APP. R. 21(a).

Initially, the Court notes that though Mr. Prewitt filed a petition for extraordinary relief, he does not address the conditions that would warrant the issuance of a writ of extraordinary relief, nor does he comply with Rule 21. However, even overlooking his failure to explain why he has a clear and indisputable right to the writ and why there are inadequate alternative means to obtain the relief he seeks, the Court finds, based on the arguments in his petition, that he has failed to show entitlement to extraordinary relief.

In the underlying July 2020 decision, the Court vacated the part of the Board decision that denied revision of a June 1970 rating decision based in part on the Board's failure to address favorable evidence, to discuss whether Mr. Prewitt had received notice of his appellate rights, and to discuss whether the RO had rated his cranial nerve and muscle injuries separately. The Court remanded the matter. The Court declined to address other arguments raised by Mr. Prewitt. After he appealed, the Federal Circuit also "decline[d] to review" Mr. Prewitt's constitutional challenges, finding that they were inextricably intertwined with the parts of the decision the Court had remanded.

Our single-judge decision and the Federal Circuit's dismissal of his appeal of that decision both directed the Board to address his constitutional challenges, a routine and accepted practice. See Ledford v. West, 136 F.3d 776, 780 (Fed. Cir. 1998); Saunders v. Brown, 4 Vet.App. 320, 326 (1993); Hensley, 212 F.3d at 1263-64. Nothing about the proceedings in this case is exceptional. See Kerr, 426 U.S. at 402.

In his petition, Mr. Prewitt raises several constitutional arguments that he believes prevent the Board from addressing certain arguments. However, the Court need not address these arguments at this time. See Crumlich v. Wilkie, 31 Vet.App. 194, 201 (2019); Bucklinger v. Brown, 5 Vet.App. 435, 441 (1993) ("It is a fundamental and long-standing principle of judicial restraint that courts avoid reaching constitutional questions in advance of the necessity of deciding them." (internal quotation marks omitted)). As the Federal Circuit has made clear, the issue-exhaustion doctrine applies to constitutional arguments. See Morris v. McDonough, 40 F.4th 1359, 1362 (Fed. Cir. 2022). The Board's inability to invalidate VA's adjudication process on constitutional grounds does not render presentation of that issue to the Board futile, because the Board could provide information and analysis useful to the resolution of constitutional arguments by this Court. See Bowling v. McDonough, 38 F.4th 1051, 1058-59 (Fed. Cir. 2022). Moreover, on remand the Board does not necessarily need to consider any of Mr. Prewitt's constitutional arguments, but instead could find another basis to rule in his favor. Accordingly, any harm in letting the remand proceed normally is purely speculative. If the Board were to reject Mr. Prewitt's arguments, he can appeal that decision to the Court and obtain the relief that he now seeks.^[1] Thus, he has adequate alternative means to obtain the desired relief. See Cheney, 542 U.S. at 380-81. Consequently, the Court is not convinced, given the circumstances, that issuance of the writ is warranted. Id.

Alternatively, the Court notes that Mr. Prewitt's petition for extraordinary relief could be viewed as a request for the Court to recall its mandate in the underlying single-judge decision and to grant reconsideration. Specifically, he does not ask for a writ of mandamus or any other familiar writ but instead asks the Court to take jurisdiction over and decide constitutional questions pending before the Board on remand.

"Recall of mandate is not ordinarily allowed. However, a court has the power to set aside any judgment and to recall mandate, where necessary to protect the integrity of its own processes." Serra v. Nicholson, 19 Vet.App. 268, 271 (2005) (citing Sargent v. Columbia Forest Prods., Inc., 75 F.3d 86, 89 (2d Cir.1996)). The decision to recall mandate is within the discretion of the Court and "may be exercised only for good cause or to prevent injustice, and only when 'unusual circumstances exist sufficient to justify modification or recall of a prior judgment.'" (quoting Zipfel v. Halliburton Co., 861 F.2d 565, 567 (9th Cir.1988)); see McNaron v. Brown, 10 Vet.App. 61, 62 (1997) (holding that the power to recall mandate should only be exercised in "exceptional circumstances").

In Sagnella v. Principi, the Court noted the following regarding its authority to recall mandate:

Among the unusual circumstances justifying a Court's exercise of its power to recall mandate are the

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