James Stanley, Jr. v. Shinseki ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAMES W. STANLEY, JR.,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2012-7121
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 09-4142, Judge William A. Moor-
man.
______________________
Decided: April 9, 2013
______________________
JAMES W. STANLEY, JR., of Little Rock, Arkansas, pro
se.
DANIEL RABINOWITZ, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respond-
ent-appellee. With him on the brief were STUART F.
DELERY, Principal Deputy Assistant Attorney General,
2 JAMES STANLEY, JR. v. SHINSEKI
JEANNE E. DAVIDSON, Director, and SCOTT D. AUSTIN,
Assistant Director. Of counsel on the brief were Y. KEN
LEE, Deputy Assistant General Counsel, and MARTIN J.
SENDEK, Attorney, United States Department of Veterans
Affairs, of Washington, DC.
______________________
Before DYK, SCHALL, and PROST, Circuit Judges.
PER CURIAM.
James W. Stanley, Jr. appeals the decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) that affirmed-in-part, and vacated and
remanded-in-part the decision of the Board of Veterans
Appeals (“Board”) finding that the Department of Veter-
ans Affairs (“VA”) General Counsel did not err in cancel-
ling the accreditation of Mr. Stanley to represent
claimants before the VA. See Stanley v. Shinseki, No. 09-
4142, 2012 WL 651856 (Vet. App. Feb. 29, 2012) (“Veter-
ans Court Decision”). Because we conclude that the
decision of the Veterans Court was not sufficiently final
for purposes of review, we dismiss the appeal.
BACKGROUND
Mr. Stanley is an attorney who was previously au-
thorized, or “accredited,” to represent claimants before the
VA. In June 2000, the VA notified Mr. Stanley of its
intent to initiate proceedings to terminate his accredita-
tion based on his alleged receipt of payment for profes-
sional services, in violation of 38 U.S.C. § 5904. In
response to the notification, Mr. Stanley acknowledged
receipt of the relevant payments, but asserted that they
were valid VA third party fee agreements under 38 C.F.R.
§ 20.609.
After conducting a hearing requested by Mr. Stanley,
a VA hearing officer issued a lengthy report recommend-
ing the cancellation of Mr. Stanley’s accreditation. The
JAMES STANLEY, JR. v. SHINSEKI 3
VA General Counsel then cancelled Mr. Stanley’s accredi-
tation. Mr. Stanley filed a Notice of Disagreement con-
testing the cancellation, eventually perfecting an appeal
to the Board.
In due course, the Board found that the VA General
Counsel had properly determined that Mr. Stanley was
not entitled to restoration of his accreditation to represent
VA claimants. In re Stanley, No. 05-28 821A (Bd. Vet.
App. Oct. 22, 2009) (the “Board Decision”). Mr. Stanley
then appealed to the Veterans Court.
In the decision currently on appeal, the Veterans
Court affirmed-in-part, and vacated and remanded-in-
part the Board Decision. Specifically, the Veterans Court
affirmed the Board’s analysis as to various due process
arguments lodged by Mr. Stanley. See Veterans Court
Decision, 2012 WL 651856 at *5–7. At the same time, the
Veterans Court vacated certain factual findings and
remanded with instructions for the Board to consider
whether suspension, rather than loss of accreditation, was
the appropriate sanction under the relevant regulations.
See id. at *8–11.
This appeal followed. We have jurisdiction under 38
U.S.C. § 7292 to review decisions of the Veterans Court.
DISCUSSION
Unlike statutes governing appeals from other tribu-
nals, the statute conferring jurisdiction on this court to
address appeals from the Veterans Court does not explic-
itly require a “final” decision. Compare 28 U.S.C.
§ 1295(a)(1) (conferring jurisdiction over “an appeal from
a final decision of a district court”) with 38 U.S.C.
§ 7292(a) (“After a decision of the United States Court of
Appeals for Veterans Claims is entered in a case, any
party to the case may obtain a review of the decision . . .
.”). Despite that, when addressing the finality of partial
remand orders from the Veterans Court, this court has
4 JAMES STANLEY, JR. v. SHINSEKI
noted that “we have ‘generally declined to review non-
final orders of the Veterans Court’ on prudential
grounds.” See Joyce v. Nicholson, 443 F.3d 845, 849
(2006) (quoting Williams v. Principi, 275 F.3d 1361, 1363
(Fed. Cir. 2002)).
This court has, however, identified a narrow exception
to the finality rule, setting forth three necessary condi-
tions:
(1) there must have been a clear and final decision
of a legal issue that (a) is separate from the re-
mand proceedings, (b) will directly govern the re-
mand proceedings or, (c) if reversed by this court,
would render the remand proceedings unneces-
sary;
(2) the resolution of the legal issues must adverse-
ly affect the party seeking review; and,
(3) there must be a substantial risk that the deci-
sion would not survive a remand, i.e., that the re-
mand proceeding may moot the issue.
Williams, 275 F.3d at 1364; see also Jones v. Nicholson,
431 F.3d 1353, 1358 & n.3 (Fed. Cir. 2005) (discussing the
narrowness of the exception).
In this case, we only need address the third so-called
Williams condition to conclude that we must dismiss Mr.
Stanley’s appeal. 1 To meet the third Williams condition,
the appellant must claim that he has a legal right not to
be subjected to a remand, see Joyce, 443 F.3d at 849 (in a
decision addressing solely the third Williams condition,
noting that “[t]he sole exception [to the finality rule] is
where the remand action itself would independently
1 Mr. Stanley declined to file a reply brief to ad-
dress finality, despite the fact that the VA raised the
issue in its brief. See App’ee Br. 22 n.4.
JAMES STANLEY, JR. v. SHINSEKI 5
violate the rights of the veteran, for example, where a
remand would be barred by statute”); or the appellant
must claim that a remand would “dispose[] of an im-
portant legal issue that would be effectively unreviewable
at a later stage of the litigation,” Allen v. Principi, 237
F.3d 1368, 1372 (Fed. Cir. 2001) (internal quotations
omitted).
Here, there is no suggestion that the remand to the
Board violates Mr. Stanley’s rights because it is contrary
to statute. The issue then is whether the remand may
render moot the issues he presents. The issues raised by
Mr. Stanley—three based on due process grounds and one
similar to the remanded sanctions issue—are not at risk
of becoming moot or not surviving the remand to the
Board. That is because, regardless of the conclusion of
the Board on remand—i.e., whether it determines that
the proper punishment was loss of accreditation or, in-
stead, suspension—Mr. Stanley will be able to file a
subsequent appeal to this court alleging error in (1) the
prior rejection of the three due process arguments in the
Veterans Court Decision, see Veterans Court Decision,
2012 WL 651856 at *5–7, and/or (2) the future conclusion
of the Veterans Court as to the sanctions issue after a
decision by the Board. See Joyce, 443 F.3d at 850 (finding
the third condition not met because the claimant could
raise, in a later-refiled appeal, “any objections to the
judgment that was entered, whether the errors arose from
the original [Veterans Court] decision or the second and
final decision”). Thus, the third Williams condition is not
met.
By dismissing, we take no position as to the merits of
the arguments set forth by Mr. Stanley in this appeal. As
seen above, this dismissal does not hinder his ability to
refile his appeal in this court after the Board and Veter-
ans Court have fully adjudicated the issues currently
pending before the Board, provided that all pre-filing
requirements have otherwise been met. See Duchesneau
6 JAMES STANLEY, JR. v. SHINSEKI
v. Shinseki, 679 F.3d 1349, 1353 (Fed. Cir. 2012) (discuss-
ing the appellant’s ability to refile a dismissed appeal).
CONCLUSION
Because the Veterans Court Decision was not suffi-
ciently final for review, we must dismiss. Given the
length of time (more than a decade) that these proceed-
ings have been pending, we assume that the VA, and on
appeal, the Veterans Court, will resolve the remaining
questions expeditiously.
Each party shall bear its own costs.
DISMISSED