George D. Prewitt, Jr. v. Denis McDonough ( 2022 )


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  •            UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
    NO. 22-3306
    GEORGE D. PREWITT, JR., PETITIONER,
    V.
    DENIS MCDONOUGH,
    SECRETARY OF VETERANS AFFAIRS, RESPONDENT.
    Before PIETSCH, FALVEY, and JAQUITH, Judges.
    ORDER
    PIETSCH, Judge, filed the opinion of the Court. FALVEY, Judge, and JAQUITH, Judge,
    filed concurring opinions.
    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 F. App'x 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
    2
    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.
    1
    The Court notes that, in his petition, Mr. Prewitt suggests that this Court may lack the authority to decide
    his constitutional arguments. However, he does not fully explain this argument and appears to ask us to not address it.
    See Locklear v. Nicholson, 
    20 Vet.App. 410
    , 416 (2006) (holding that the Court will not entertain undeveloped
    arguments). Thus, the Court will not consider it further.
    3
    "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 discovery that the judgment was obtained by fraud, the correction
    of clerical mistakes and judicial oversights, a subsequent change in the law, or
    where it is discovered that the appellant had died prior to the issuance of the
    mandate.
    
    15 Vet.App. 242
    , 245 (2001). Mr. Prewitt has not demonstrated good cause or unusual
    circumstances to recall mandate. See Smith v. Shinseki, 
    26 Vet.App. 406
    , 410 (2014). As discussed
    more thoroughly above, our single-judge decision and the Federal Circuit's dismissal of his appeal
    were both within our normal practice and supported by caselaw. There is simply nothing unusual
    or exceptional about the facts in this case or the Court's remand order to warrant recalling mandate.
    See McNaron, 10 Vet.App. at 62.
    III. CONCLUSION
    Based on the above considerations, it is
    ORDERED that Mr. Prewitt's motion to amend his petition is denied. It is also
    ORDERED that Mr. Prewitt's petition for extraordinary relief is DENIED.
    DATED: December 5, 2022
    FALVEY, Judge, concurring: I concur with the Court's opinion that Mr. Prewitt's June 2,
    2022, filing, whether construed as a petition or as a motion to recall mandate, should be denied. I
    agree with the majority's disposition of his construed petition for a writ of mandamus, as he has
    not shown that he lacks adequate alternative means to receive the benefits he seeks. But I think
    that our rejection of the veteran's construed motion to recall mandate warrants a fuller explanation
    than the Court has offered. What's more, it requires us to consider this Court's place in the
    Constitution's structure.
    Mr. Prewitt asks us to reconsider our prior memorandum decision because, in his view, the
    Board is unconstitutionally structured and therefore cannot render a valid decision on his benefits
    4
    claims. Petition (Pet.) at 2-3. He argues that Board members' appointments violate the
    Appointments Clause because Board members "can only be fired for cause and [their] decisions
    are not reviewed administratively" by principal officers in the executive branch, and thus the
    Appointments Clause requires them to be appointed through Presidential nomination and Senate
    confirmation rather than by the Secretary. Pet. at 1; see 38 U.S.C. § 7101A; Edmond v. United
    States, 
    520 U.S. 651
    , 663 (1997) ("[I]nferior officers are officers whose work is directed and
    supervised at some level by others who were appointed by Presidential nomination with the advice
    and consent of the Senate." (internal quotation omitted)).
    Given that this Court reviews Board decisions, a crucial element of the veteran's
    Appointments Clause argument is his contention that the Court is not part of the executive branch.
    He acknowledges that the Supreme Court recently stated in United States v. Arthrex, Inc., that this
    Court is "an Executive Branch entity." Id. at 1-2 (quoting United States v. Arthrex, Inc., 
    594 U.S. __
    , __, 
    141 S. Ct. 1970
    , 1984 (2021)). But he asserts that the Supreme Court committed a
    "monumental error" in doing so because this Court is, in fact, part of the judicial branch. Id. at 2.
    Looking to the Supreme Court's precedents interpreting the Appointments Clause, I think that Mr.
    Prewitt's structural constitutional argument has a plausible basis and, despite being incorrect,
    merits more than cursory disregard.
    The Supreme Court has explained that the Appointments Clause is violated when an officer
    of the executive branch who was not appointed through Presidential nomination and Senate
    confirmation—such as a member of the Board—can "render a final decision on behalf the United
    States" without sufficient oversight from a principal officer of the executive branch. Arthrex,
    594 U.S. at __, 141 S. Ct. at 1981-82. Neither an Article III court nor a higher-ranking principal
    officer who lacks "'meaningful[] control[]'" over the officer's decisions can provide the executive
    branch supervision required by the Appointments Clause. Id. (quoting Seila Law LLC v. Consumer
    Fin. Prot. Bureau, 
    140 S. Ct. 2183
    , 2203 (2020)). And Board members render final, binding
    decisions on behalf of the United States. See 
    38 U.S.C. §§ 7102
    (a) 7103(a), 7104(a). Indeed, our
    jurisdiction depends on the Board rendering final decisions. See 
    38 U.S.C. § 7266
    (a). Thus, Mr.
    Prewitt's Appointments Clause argument is compelling—and potentially presents good cause and
    unusual circumstances warranting a recall of mandate—if he is correct in his premise that the
    Board is not subject to meaningful executive branch oversight.
    But that premise is wrong. As the Supreme Court explained in Arthrex, the Board is subject
    to executive branch review by this Court. 594 U.S. at __, 141 S. Ct. at 1984 ("[W]hile the Board
    of Veterans' [Appeals] does make the final decision within the Department of Veterans Affairs . . .
    its decisions are reviewed by the Court of Appeals for Veterans Claims, an Executive Branch
    entity."). As explained below, far from committing a "monumental error," Pet. at 1, the Supreme
    Court's statement in Arthrex that this Court wields executive power not only warrants our respect,
    but, from a constitutional perspective, is correct.
    First, the Court is not free to disregard Arthrex's statement that we are an entity of the
    executive branch. Rather than mere dicta, see post at 15-16, the statement was an important part
    of the Supreme Court's reasoning. The Supreme Court used the statement to reject a key
    counterargument—that inferior officers commonly make final decisions on behalf of the executive
    branch that are not subject to review by a principal officer. See Arthrex, 594 U.S. at __, 
    141 S. Ct.
                             5
    at 1983-84. The Supreme Court explained that the decisions of various inferior officers, including
    Board members, are subject to review by superior executive branch entities, such as (in the case
    of the Board) this Court. See 
    id.
     Thus, our status as a superior "Executive Branch entity" was an
    important aspect of the Supreme Court's logic, not a throwaway line or incautious remark. And at
    any rate, even the Supreme Court's dicta carries significant weight. See Ins. Co. of the West v.
    United States, 
    243 F.3d 1367
    , 1372 (Fed. Cir. 2001) (stating that the Federal Circuit must follow
    a Supreme Court interpretation "even though that interpretation may be dicta").
    Second, and more fundamentally, the Supreme Court was correct as a matter of
    constitutional law that this Court wields executive power. This should come as no surprise.
    Executive branch entities commonly "make rules . . . and conduct adjudications . . . and have done
    so since the beginning of the Republic. These activities take 'legislative' and 'judicial' forms, but
    they are exercises of—indeed, under our constitutional structure they must be exercises of—the
    'executive Power.'"2 City of Arlington v. FCC, 
    569 U.S. 290
    , 304 n.4 (2013).
    Congress has established Article I tribunals, sometimes called "legislative courts," to
    adjudicate limited categories of subject matters that do not necessarily require adjudication by an
    Article III court. See Stern v. Marshall, 
    564 U.S. 462
    , 490-91 (2011); Thomas v. Union Carbide
    Agric. Prods. Co., 
    473 U.S. 568
    , 583 (1985). One of these categories is "public rights" matters—
    that is, matters involving rights "integrally related to particular [f]ederal [g]overnment action."
    Stern, 
    564 U.S. at 490-91
    . This includes disputes arising "'between the [g]overnment and persons
    subject to its authority in connection with the performance of the constitutional functions of the
    executive or legislative departments.'" 
    Id. at 490
     (quoting Crowell v. Benson, 
    285 U.S. 22
    , 50
    (1932)). The VA benefits system falls squarely within this category since VA, an executive agency,
    administers the legislative grant of entitlements (disability compensation for service-related
    injuries or illnesses) to a subset of persons under governmental authority (veterans). See Shinseki
    v. Sanders, 
    556 U.S. 396
    , 400-01 (2009).
    This Court is an Article I tribunal, functioning outside Article III under the "public rights"
    doctrine. See Henderson ex rel. Henderson v. Shinseki, 
    562 U.S. 428
    , 432 (2011) (noting that the
    Court of Appeals for Veterans Claims is an Article I tribunal); Crowell, 
    285 U.S. at 50-51
    ("payments to veterans" may be adjudicated outside Article III because they are public rights).
    And this means that the Court wields executive power, not judicial power under Article III.3
    2
    In Humphrey's Executor v. United States, the Supreme Court held that the Federal Trade Commission (FTC)
    acted as "a legislative agency" and "as an agency of the judiciary" and that, if the FTC exercised any executive
    function, it did so not using "executive power in the constitutional sense" but "in the discharge and effectuation of its
    quasi[-]legislative or quasi[-]judicial powers, or as an agency of the legislative or judicial departments of the
    government." 
    295 U.S. 602
    , 628-29 (1935) (relying on Williams v. United States, 
    289 U.S. 553
    , 567 (1933); see post
    at 21-23 (likewise relying on Williams). But as the Supreme Court has observed, the Humphrey's Executor view of
    administrative agency power as non-executive "has not withstood the test of time." Seila Law, 
    140 S. Ct. 2183
    , 2198
    n.2 (2020).
    3
    There is ample scholarly support for this conclusion. See, e.g., Michael S. Greve, Why We Need Federal
    Administrative Courts, 28 GEO. MASON L. REV. 765, 800 (2021) ("Technically, the U.S. Tax Court is an executive
    body, as are the U.S. Court of Federal Claims and the U.S. Court of Veterans Appeals. (Not being Article III courts,
    they cannot be anything else.)" (emphasis added)); William Baude, Adjudication Outside Article III,
    133 HARV. L. REV. 1511, 1558 (2020) ("[T]ribunals that are justified because they deal with public rights or the
    military must be part of the executive branch, so while we might colloquially call some of them 'legislative courts,' in
    the constitutional sense, they are not."); Craig A. Stern, What's a Constitution Among Friends?—Unbalancing Article
    6
    Our Constitution's separation of powers requires this conclusion. The federal government's
    power is separated into three types: legislative, executive, and judicial. INS v. Chadha, 
    462 U.S. 919
    , 951 (1983); J.W. Hampton, Jr. & Co. v. United States, 
    276 U.S. 394
    , 406 (1928); see generally
    THE FEDERALIST NO. 47 (James Madison). The legislative power is vested exclusively in Congress.
    U.S. CONST. art. I, § 1. And the judicial power is vested in the Supreme Court and such inferior
    courts as Congress may establish, with the requirement that the judges (or justices) of these courts
    have lifetime appointments "during good behavior" and are protected from reductions in salary
    while in office. U.S. CONST. art. III, § 1. Mr. Prewitt does not argue that we exercise legislative
    power, see Pet. at 1-4, nor would such an argument be plausible, given that our authority is limited
    to "review[ing] decisions of the Board," 38 U.S.C. 7252(a), and we thus lack power to enact any
    generally applicable laws or regulations. More importantly, we cannot exercise judicial power
    because "Article III of the Constitution provides that the judicial power of the United States may
    be vested only in courts whose judges enjoy the [life tenure and salary] protections set forth in that
    Article." Stern, 
    564 U.S. at 503
    . And Judges of this Court do not enjoy life tenure. See
    
    38 U.S.C. § 7253
    (c) ("The term of office of the judges of the Court of Appeals for Veterans Claims
    shall be 15 years.").
    Because we wield neither legislative power under Article I nor judicial power under Article
    III, we must wield executive power under Article II. Cf. Chadha, 
    462 U.S. at 951
    ; J.W. Hampton,
    
    276 U.S. at 406
    ; see City of Arlington, 
    569 U.S. at
    304 n.4. Thus, contrary to Mr. Prewitt's
    argument, this Court is not "part of the judicial branch." See Pet. at 2. And because the Judges of
    III, 146 U. PENN. L. REV. 1043, 1060-66 (1998) (explaining that "public rights" tribunals exercise executive power
    rather than "the judicial power of the United States"); Akhil Reed Amar, Marbury, Section 13, and the Original
    Jurisdiction of the Supreme Court, 56 U. CHI. L. REV. 443, 451 n.43 (1989) ("[S]trictly speaking, 'legislative courts'
    are neither legislative nor courts; rather, they are executive agencies.").
    Although the other concurrence plucks an orphaned quote from the Stern article to "solve the puzzle" in a
    way that "contradicts [the] premise" of this concurrence (not to mention Professor Stern's conclusions), post at 27, a
    closer reading of the article shows no contradiction at all. In Professor Stern's view, the proceedings of public-rights
    courts are "matter[s] of public administration" that guide the executive branch and inform citizens of their rights and
    responsibilities. Stern, supra at 1062; accord id. at 1062 ("Deciding whom to prosecute, what taxes to assess, what
    grants to disburse, which veterans qualify for benefits—these, and perhaps most, decisions of the executive require
    applying the law to facts. They are not, however, instances of 'the judicial [p]ower.'") Thus, in Professor Stern's
    formulation, public-rights tribunals do not "authoritatively pronounce the law" in disputes between parties as Article
    III courts do; instead, they use executive power to issue binding administrative decisions. Id at 1060-66.
    And this conclusion also finds support in the legislative history of the statute creating the Court:
    An independent Court of Veterans Appeals would be established in the executive branch in lieu of
    the existing Board of Veterans' Appeals. There are a number of similar executive branch or Article
    I Courts already in existence; two of the most notable are the Court of Military Appeals and the Tax
    Court.
    H.R. Rep. No. 100-963, pt. 1, at 5 (1988). Although the eventual legislation didn't create the Court "in lieu of” the
    existing Board of Veterans' Appeals, the legislative history is instructive, nonetheless. And, although the legislation
    sought to create a Court that is "independent" and "impartial," see post at 20-21, acknowledging that we exercise
    executive power does not undermine our independence conferred by Congress or our ability to decide cases
    impartially, see infra at 10.
    7
    this Court are therefore principal officers of the executive branch, appointed by the President and
    confirmed by the Senate, our review of Board decisions prevents an Appointments Clause
    violation from occurring due to Board members' appointments by the Secretary; contrary to Mr.
    Prewitt's premise, Board members do not render "final decision[s] on behalf of the United States"
    without review by a principal officer in the executive branch. Arthrex, 594 U.S. at __, 141 S. Ct.
    at 1981-82, 1984; see 
    38 U.S.C. §§ 7102
    (a) 7103(a), 7104(a).
    To be sure, some of our decisions have relied on Freytag v. Commissioner of Internal
    Revenue to state that we exercise "the judicial power of the United States." See, e.g., Rickett v.
    Shinseki, 
    26 Vet. App. 210
    , 222 (2013) (per curiam order) (en banc), withdrawn on other grounds,
    
    27 Vet. App. 240
     (2015); Copeland v. Shinseki, 
    26 Vet. App. 86
    , 90 n.4 (2012); Jones v. Derwinski,
    
    1 Vet. App. 596
    , 607 (1991); see also Freytag v. Comm'r of Internal Revenue, 
    501 U.S. 868
    , 889-
    91 (1991); post at 22-24. This reading of Freytag is understandable, considering that Freytag stated
    that a non-Article III tribunal—the Tax Court—exercised "the judicial power of the United States."
    See Freytag, 
    501 U.S. at 891
    ; see also Resp. at 7 (agreeing that this Court "has been granted judicial
    power").
    But a continued reading of Freytag as concluding that we exercise "the judicial power of
    the United States" does not appear to survive later Supreme Court decisions specifying that only
    Article III courts possess such power. See Stern, 
    564 U.S. at 484, 503
     (holding that "the judicial
    power of the United States" may be vested only in Article III courts whose judges enjoy lifetime
    tenure and salary protections). This view was not rejected by Wellness International Network v.
    Sharif, 
    575 U.S. 665
     (2015). Contra post at 22 n.24, 24. There, consistent with the public rights
    doctrine, the Supreme Court simply reiterated that Article I courts may adjudicate certain matters
    that need not be adjudicated by Article III courts. See 575 U.S. at 678-80. The Supreme Court did
    not hold that Article I courts therefore exercise the judicial power of the United States under Article
    III. And later Supreme Court decisions have confirmed that only life-tenured Article III judges
    may exercise such power. See Oil States Energy Servs., LLC v. Greene's Energy Grp., 
    138 S. Ct. 1365
    , 1372-73 (2018) ("Congress cannot 'confer the Government's "judicial power" on entities
    outside of Article III.'" (quoting Stern, 546, U.S. at 484)); see also Ortiz v. United States, 
    138 S. Ct. 2165
    , 2178-80 (2018) (noting that, although Article I military courts have a "judicial character"
    and perform "an inherently judicial role," they are located within the executive branch).
    Moreover, our prior reading of Freytag may have been mistaken. As the Court of Appeals
    for the D.C. Circuit explained in holding that the Tax Court (the same entity examined in Freytag)
    is an executive branch body that exercises executive power, Freytag did not use the phrase
    "judicial power" in "the particular sense employed by Article III" but in "an enlarged sense"
    encompassing non-Article III adjudications. Kuretski v. Comm'r of Internal Revenue,
    
    755 F.3d 929
    , 941 (D.C. Cir. 2014) (quoting Murray's Lessee v. Hoboken Land & Improvement
    Co., 
    59 U.S. 272
    , 280 (1856) (viewing "judicial power" "in an enlarged sense," holding that all
    "administrative duties the performance of which involves an inquiry into the existence of facts and
    the application to them of rules of law" are "judicial act[s]")); see also Freytag, 
    501 U.S. at 908
    (Scalia, J. concurring in part) ("'The judicial power,' as the [Freytag majority] uses it, bears no
    resemblance to the constitutional term of art we are all familiar with, but means only, 'the power
    to adjudicate in the manner of courts.'").
    8
    Much like the Tax Court, this Court exercises a form of administrative "judicial power" in
    the sense of examining facts and applying law, but not in the sense of Article III's "judicial power
    of the United States." Although the other concurrence relies on Battat v. Commissioner of Internal
    Revenue, 
    148 T.C. 32
     (2017), to "persuasively rebut[]" Kuretski, post at 23-24, Battat
    accomplishes no such thing. Putting aside the relative authoritative value of the Court of Appeals
    for the D.C. Circuit versus the Tax Court, Battat made much the same error that the other
    concurrence makes here—ignoring the constraints of Article III, Section 1, to assert that an Article
    I court exercises the judicial power of the United States. See 148 T.C. at 53 ("While the Tax Court
    exercises a portion of the judicial power of the United States, . . . it has jurisdiction to adjudicate
    only public rights disputes, . . . and thus does not exercise that portion of the judicial power that is
    reserved for Article III judges."). Contra Battat, the Constitution reserves all judicial power of the
    United States to Article III judges. U.S. CONST. art. III, § 1; Oil States, 138 S. Ct. at 1372-73;
    Stern, 
    564 U.S. at 484, 503
    .
    Similarly, although this Court performs adjudicative duties, such as resolving cases;
    establishing precedents; interpreting the law; awarding attorney's fees; using the Case
    Management/Electronic Case Files system (which enables courts to maintain electronic files and
    offer online filing); maintaining practice committees; and hiring court staff, see post at 15-20, these
    duties are not—and indeed cannot be—exercises of the judicial power of the United States under
    Article III. See City of Arlington, 
    569 U.S. at
    304 n.4; see also Oil States, 138 S. Ct. at 1378 ("The
    fact that an agency uses court-like procedures does not necessarily mean it is exercising the judicial
    power. The Court has rejected the notion that a tribunal exercises Article III judicial power simply
    because it is 'called a court and its decisions called judgements.'").
    Despite the other concurrence's insistence, Mistretta v. United States does not support the
    proposition that this Court exercises the judicial power of the United States.
    Although Mistretta held that the U.S. Sentencing Commission, an independent agency, is in some
    sense "located in the Judicial Branch," Mistretta did not hold that the Sentencing Commission
    therefore exercises Article III judicial power. See Mistretta v. United States, 
    488 U.S. 361
    , 393
    (1989). Indeed, Mistretta squarely held that the Sentencing Commission is an "independent
    agency" that "does not exercise judicial power." 
    Id. at 393
     (emphasis added); accord 
    id. at 408
    ("[T]he Commission is not a court and exercises no judicial power."). Thus, any analogy between
    the Sentencing Commission and this Court, see post at 26, confirms rather than rebuts that this
    Court likewise does not exercise Article III judicial power. Moreover, the existence of a non-
    judicial administrative body within the judicial branch does not obviate the Constitution's explicit
    prerequisite of lifetime tenure for a court to wield the judicial power of the United States. See U.S.
    CONST. art. III, § 1.
    The other concurrence notes that magistrate and bankruptcy judges are constitutionally
    permissible as "adjuncts of the district court," post at 26, 28, but there is little resemblance between
    such adjuncts and our Court's Judges. In general, the actions of magistrate judges and bankruptcy
    judges are constitutionally permissible to the extent that they are subject to the "'total control and
    jurisdiction'" of district courts. Wellness Int'l, 575 U.S. at 677, 679 (quoting Peretz v. United
    States, 
    501 U.S. 923
    , 937 (1991)). But we are not subject to any such "total control," and
    presumably the other concurrence—which emphasizes our "complete[] independen[ce]," post at
    16—ultimately agrees that we are not mere "adjuncts" of the Article III judiciary.
    9
    The other concurrence also argues that there is no present need to consider the Court's
    location in the constitutional structure because principal officers within VA provide enough
    oversight of Board decisions to solve any Appointments Clause issues. See post at 12-14. After
    all, the Secretary and the Board Chairman each has some degree of authority over the Board and
    each is appointed by the President and confirmed by the Senate. See id. at 12-14; 
    38 U.S.C. §§ 303
    ,
    7101(b)(1). In my view, this might have been a plausible solution to the Appointments Clause
    problem before Arthrex, but it is no longer tenable because Arthrex made clear that an
    Appointments Clause violation occurs if an officer who has not been nominated by the President
    and confirmed by the Senate has "power to render a final decision on behalf of the United States"
    without proper "review" by a "principal officer in the Executive Branch." 594 U.S. at __, 141 S. Ct.
    at 1981-82, 1988. And here, it is undisputed that both the Secretary and the Board Chairman lack
    "discretion" to perform the necessary review, and they may not "countermand[]" Board decisions,
    id. at 1982, 1988; indeed, "no principal officer within VA can unilaterally reverse a Board
    decision," post at 14. Without some other executive oversight, this arrangement violates the
    Appointments Clause under Arthrex.
    It is true that the Board Chairman may order reconsideration of a decision by a panel of
    three or more Board members, which may include the Chairman as a single voting member. 4
    
    38 U.S.C. § 7103
    ; 
    38 C.F.R. §§ 20.1002
    , 20.1004 (2022); see post at 14. But the Chairman
    presumably may be outvoted by a panel majority of inferior-officer Board members even if the
    Chairman orders reconsideration of a case and chooses to sit on the reconsideration panel, leaving
    the Chairman unable to countermand the decision.5 See 
    38 C.F.R. § 20.1004
    ; see also Arthrex,
    594 U.S. at __, 141 S. Ct. at 1981-82, 1988. The Chairman also may assign Board members to
    proceedings, promulgate performance standards, and award performance incentives, see 38 U.S.C.
    §§ 7101A(c), 7101(e); 
    38 C.F.R. § 20.106
     (2022); post at 13-14, but under Arthrex these methods
    of indirectly supervising Board decisions does not solve the Appointments Clauses problem, see
    594 U.S. at __, 141 S. Ct. at 1980-81.
    The Secretary's oversight of individual Board decisions is even narrower and more indirect
    than the Chairman's. The Secretary's influence over the Board consists of appointing Board
    members with the approval of the President and removing Board members upon the Chairman's
    noncertification and recommendation. 38 U.S.C. § 7101A(a)(1), (d)(1); post at 13-14. But
    noncertification and removal do not give the Secretary or the Chairman a "means of
    countermanding [a] final decision already on the books"—which is "what matters" under Arthrex.
    see Arthrex, 594 U.S. at __, 141 S. Ct. at 1981-82. Although VA's internal oversight of the Board
    may present a closer call than did the Patent Trial and Appeal Board structure that the Supreme
    found to violate the Appointments Clause in Arthrex, I do not think that supervision of the Board
    4
    The Board may also, on its own or a party's motion, revise a decision based on clear and unmistakable error,
    
    38 C.F.R. §§ 20.1400
    , 20.1407 (2022), or vacate a decision because due process has been denied or benefits have been
    granted based on fraudulent evidence, 
    38 C.F.R. § 20.1000
     (2022). But the regulations do not specify any role for the
    Board Chairman in these actions.
    5
    The Chairman can also order reconsideration of a panel decision by the Board, in which instance the case
    will be referred to "an enlarged panel, consisting of three or more Members than the original panel." 
    38 C.F.R. § 20.1004
    (b). But the same potential Appointments Clause problem still exists because it might be ordinary Board
    members who make the ultimate decision and not the Chairman.
    10
    from inside VA solves the Appointments Clause problem raised here. Review from this Court,
    however, does. And that is the ground on which I would reject Mr. Prewitt's motion to recall
    mandate.
    To be clear, acknowledging that this Court exercises executive power in issuing its
    decisions neither undermines our status as an "independent Article I court," Kisor v. Wilkie,
    
    139 S. Ct. 2400
    , 2409 (2019), nor places the Court's Judges under any executive branch restraint
    except for the President's narrow power of for-cause removal. See 
    38 U.S.C. § 7253
    (f). Congress
    has vested our Court with "exclusive jurisdiction to review decisions of the Board of Veterans'
    Appeals" and "power to affirm, modify, or reverse a decision of the Board or to remand [a] matter,
    as appropriate." 
    38 U.S.C. § 7252
    (a). Our decisions are reviewable only to the limited extent that
    Congress has authorized the U.S. Court of Appeals for the Federal Circuit and the Supreme Court
    to do so. See 
    28 U.S.C. § 1254
    ; 
    38 U.S.C. § 7292
    . Acknowledging that we are constitutionally
    located within the executive branch, as the Supreme Court did in Arthrex, does not challenge any
    aspect of our independence. Nor does it alter Congress's creation of "a court of record to be known
    as the United States Court of Appeals for Veterans Claims," nor the appointment of "judges" to
    serve on the Court. 
    38 U.S.C. §§ 7251
    , 7253; see Oil States, 138 S. Ct. at 1378. Acknowledging
    that we are constitutionally located in the executive branch simply means that, in our adjudication
    of cases under authority granted by Congress, we wield executive power and not "the judicial
    power of the United States."
    JAQUITH, Judge, concurring: I concur with the Court's opinion that neither issuance of a
    writ of mandamus nor recall of mandate is warranted in this case. As the Court's opinion provides,
    this petition is not the appropriate vehicle for addressing Mr. Prewitt's latest constitutional
    arguments: because his underlying appeal was remanded to the Board, he has an ongoing
    opportunity to obtain the substantive relief he seeks. The preference for that process is both
    practical and prudential. "A fundamental and longstanding principle of judicial restraint requires
    that courts avoid reaching constitutional questions in advance of the necessity of deciding them."6
    Lyng v. Nw. Indian Cemetery Protective Ass'n, 
    485 U.S. 439
    , 445 (1988); see, e.g., Bucklinger v.
    Brown, 
    5 Vet.App. 435
    , 441 (1993). Such restraint recognizes that constitutional questions require
    the focused consideration of a complete record. As with the petitioner's prior constitutional
    challenges left for Board consideration, 7 presenting the Board with his argument that the
    Secretary's appointment of Board members is unconstitutional could result in the Board providing
    6
    The judicial obligation "to avoid deciding constitutional issues needlessly" applies to separation of powers
    concerns. See Christopher v. Harbury, 
    536 U.S. 403
    , 417 (2002).
    7
    The Federal Circuit declined "to review Mr. Prewitt's constitutional challenges, which include an Equal
    Protection claim, a Due Process claim, and a Takings Clause claim," as intertwined with his claims remanded by this
    Court. Prewitt v. McDonough, 
    856 F. App'x 280
    , 282-83 (Fed. Cir. 2021). Mr. Prewitt is also pressing his
    constitutional challenges in U.S. District Court. On September 30, 2022, the U.S. District Court for the District of
    Columbia denied VA's motion to dismiss Mr. Prewitt's "facial Appointments Clause challenge to the structure of the
    VA" and his "First and Fifth Amendment challenges to the VJRA's [Veterans' Judicial Review Act's] review system—
    namely, that it unconstitutionally limits the opportunities for judicial review and court access of an allegedly
    disproportionately male and nonwhite subgroup." Prewitt v. McDonough, No. 4598654, 
    2022 WL 4598654
    , at *7-8
    (D.D.C. Sept. 30, 2022). The claimant's ability to bring his constitutional challenge in U.S. District Court also
    demonstrates that he does not lack alternative means of obtaining the relief he seeks. Dacoron v. Brown, 
    4 Vet.App. 115
    , 119 (1993); cf. Veterans for Common Sense v. Shinseki, 
    678 F.3d 1013
    , 1033-34 (9th Cir. 2012) (collecting
    cases).
    11
    information or analysis useful to the resolution of that argument by this Court.8 See Bowling v.
    McDonough, 
    38 F.4th 1051
    , 1058-59 (Fed. Cir. 2022). So I respectfully disagree with my
    distinguished concurring colleague's determination that this petition warrants assigning this Court
    to the executive branch to cure the claimed constitutional infirmity.
    In my view, it is backward to concentrate on the cure—and conceive this Court as the
    Board's executive branch supervisor—without first considering more carefully the claimed
    constitutional defect: that the Secretary's appointment of Board members violates the
    Appointments Clause of the U.S. Constitution. The analytical order and volume of my colleague's
    concurrence seem to reflect recognition that whether there is an Appointments Clause problem is
    a close question that may be solved by the supervision of the Board within VA.9 That question is
    one that should be answered in a case where the decision depends on the answer, is preceded by
    robust briefing and oral argument, and accounts for this Court's prior precedential decision
    rejecting an Appointments Clause challenge to Board action when the Court found that the
    Secretary appoints Board members—inferior officers—in the Secretary's capacity as "Head[] of
    Department[]." See Henderson v. West, 
    12 Vet.App. 11
    , 16 (1998) (quoting U.S. CONST. art. II, §
    2, cl. 2).
    The Appointments Clause
    "The Appointments Clause of the Constitution lays out the permissible methods of
    appointing 'Officers of the United States,' a class of government officials distinct from mere
    employees." Lucia v. S.E.C., 
    138 S. Ct. 2044
    , 2049 (2018) (quoting U.S. CONST. art. II, § 2, cl. 2).
    The Appointments Clause provides:
    [The President] shall nominate, and by and with the Advice and Consent of the
    Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of
    the supreme Court, and all other Officers of the United States, whose Appointments
    are not herein otherwise provided for, and which shall be established by Law: but
    the Congress may by Law vest the Appointment of such inferior Officers, as they
    think proper, in the President alone, in the Courts of Law, or in the Heads of
    Departments.
    U.S. CONST. art. II, § 2, cl. 2."Only the President, with the advice and consent of the Senate, can
    appoint noninferior officers, called 'principal' officers as shorthand." United States v. Arthrex, Inc.,
    
    141 S. Ct. 1970
    , 1979 (2021). But "Congress may vest the appointment of [inferior] officers 'in
    the President alone, in the Courts of Law, or in the Heads of Departments.'" 
    Id.
     (quoting U.S.
    CONST. art. II, § 2, cl. 2).
    8
    Although the Federal Circuit observed, in the wake of Carr v. Saul, 
    141 S. Ct. 1352
     (2021), that the futility
    exception to the issue exhaustion requirement could apply to an Appointments Clause challenge, the Federal Circuit
    did not upend this Court's discretion to decline to address an appellant's arguments before they have been presented
    to the Board. Morris v. McDonough, 
    40 F.4th 1359
    , 1362-64 (Fed. Cir. 2022). As Bowling noted just 20 days before
    Morris was decided, notwithstanding the Board's inability to resolve a constitutional question, the Board can perform
    "at least record-development functions, as well as associated fact-finding functions." 38 F.4th at 1059.
    9
    Ante at 9-10.
    12
    The Supreme Court has "not set forth an exclusive criterion for distinguishing between
    principal and inferior officers for Appointments Clause purposes." Edmond v. United States, 
    520 U.S. 651
    , 661 (1997). However, the basic point is that inferior officers exercise significant
    authority—the hallmark of an officer—but are supervised at some level by a principal officer or
    officers, appointed by the President and confirmed by the Senate. 
    Id. at 662-63
    . The statutory and
    regulatory provisions governing the Board show that its members receive meaningful supervision
    by principal officers.
    The Department of Veterans Affairs
    The Secretary of Veterans Affairs is the head of the Department of Veterans Affairs and is
    appointed by the President, by and with the advice and consent of the Senate. 
    38 U.S.C. § 303
    .
    "The Secretary is responsible for the proper execution and administration of all laws administered
    by the Department and for the control, direction, and management of the Department." 
    Id.
     By
    statute, "[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). The Secretary is also empowered to
    provide equitable relief. 
    38 U.S.C. § 503
    .
    The Secretary is assisted by a Deputy Secretary of Veterans Affairs, who is also appointed
    by the President, with the advice and consent of the Senate, and serves as Acting Secretary in the
    absence or disability of the Secretary.10 
    38 U.S.C. § 304
    .
    The Secretary has delegated authority to the Under Secretary for Benefits to act on matters
    assigned to the Veterans Benefits Administration. 
    38 C.F.R. § 2.6
    (b)(1) (2022). The Under
    Secretary for Benefits is appointed by the President, with the advice and consent of the Senate,
    and serves as the head of the Veterans Benefits Administration. 
    38 U.S.C. § 306
    (b). The Under
    Secretary for Benefits and supervisory or adjudicative personnel the Under Secretary designates
    are delegated the authority to make findings and decisions as to the entitlement of veterans and
    their dependents to benefits under laws administered by VA. 
    38 C.F.R. § 3.100
    (a) (2022). In
    practice, those decisions generally are made by designated personnel at VA's regional offices.11
    See 
    38 U.S.C. § 315
    .
    The Board of Veterans' Appeals
    Appeals of initial decisions on claims go to the Board of Veterans' Appeals, which performs
    the "one review on appeal to the Secretary" provided by statute. 
    38 U.S.C. § 7104
    (a). "The Board
    is under the administrative control and supervision of a chairman directly responsible to the
    Secretary." 
    38 U.S.C. § 7101
    (a).12 The Chairman of the Board is appointed by the President, by
    10
    Other VA officials appointed by the President, with the advice and consent of the Senate, include three
    Under Secretaries, up to seven Assistant Secretaries, the General Counsel, and the Inspector General. 
    38 U.S.C. §§ 305-308
    , 311-12.
    11
    VA has 56 regional offices in the United States—at least one in each state and one in the District of
    Columbia—as well as regional offices in the Philippines and Puerto Rico. Regional Offices Websites, VETERANS
    BENEFITS ADMINISTRATION, https://www.benefits.va.gov/benefits/offices.asp (last visited Oct. 14, 2022.
    12
    The Board was created in 1933 by President Franklin D. Roosevelt's Executive Order 6230. Only the titles
    13
    and with the advice and consent of the Senate, and the Chairman may be removed by the President.
    
    38 U.S.C. § 7101
    (b). Board members are "appointed by the Secretary, with the approval of the
    President, based upon recommendations of the Chairman." 38 U.S.C. § 7101A(a)(1). The
    Chairman establishes performance standards for Board members and determines whether Board
    members are awarded performance incentives. 38 U.S.C. §§ 7101A(c), 7101(e). The Chairman
    also establishes a panel to review the performance of Board members and determine whether they
    meet performance standards, and the Chairman periodically relies on that determination to
    recertify each Board member's appointment, grant conditional recertification, or recommend that
    the Secretary noncertify them. 38 U.S.C. § 7101A(c). "If the Secretary, based upon the
    recommendation of the Chairman, determines that a member of the Board should be noncertified,
    . . . that member shall be removed from the Board." 38 U.S.C. § 7101A(d). In addition to removal
    based on job performance, a Board member "may be removed by the Secretary, upon the
    recommendation of the Chairman, for any other reason as determined by the Secretary." 38 U.S.C.
    § 7101A(e).
    The Chairman assigns proceedings instituted before the Board to an individual Board
    member or a panel of Board members. 
    38 C.F.R. § 20.106
     (2022). If the Chairman assigns the
    appeal to a panel, the Chairman designates one of the Board members as the presiding member.
    
    38 C.F.R. § 20.706
     (2022). The Chairman may disqualify a Board member from acting in an appeal
    where the appeal involves a determination in which the Board member participated or for which
    the Board member had supervisory responsibility before becoming a Board member, or where
    other circumstances might give the impression of bias either for or against the appellant. 
    38 C.F.R. § 20.107
     (2022). The Board has a quality review program, aimed at identifying "objective errors
    that fall outside the bounds of judicial discretion in a uniform and consistent manner," which
    operates by advising the Board member responsible for the decision and the member's supervising
    Deputy Vice Chairman so they can remedy the errors. VETERANS BENEFITS MANUAL § 13.6.2
    (Nat'l Veterans Legal Servs. Program ed., 2021-2022). The Chairman issues internal memoranda
    to ensure that Board decisions fulfill the Board's statutory responsibilities, as interpreted by this
    Court. See Austin v. Brown, 
    6 Vet.App. 547
    , 549 (1994); see also Andrews v. McDonough, 
    34 Vet.App. 151
    , 155 (2021); Clark v. O'Rourke, 
    30 Vet.App. 92
    , 96-97 (2018). In order to grant a
    benefit, the Chairman may approve the assumption of appellate jurisdiction over an adjudicative
    determination that has not become final, and the Chairman may order VA Central Office
    investigations of matters before the Board. 
    38 C.F.R. § 20.108
     (2022). The Chairman has the power
    to order reconsideration of each Board decision—"on the Chairman's initiative or upon motion of
    the claimant"—thereby stopping the decision from becoming final. 
    38 U.S.C. § 7103
    (a). Such
    reconsideration must be accomplished by a panel of Board members who were not involved in the
    prior decision, and the panel may include the Chairman. 
    38 U.S.C. § 7103
    (b). Before rendering a
    decision, the panel must review the entire record before the Board. 
    Id.
     The Chairman reviews the
    sufficiency of motions for reconsideration and denies motions found insufficient, with notice of
    the reasons for that finding, or allows motions to be decided by a panel the Chairman assigns,
    which may include the Chairman. 
    38 C.F.R. §§ 20.1002
    , 20.1004 (2022).
    An Appointments Clause Violation?
    of the Agency and the Secretary have changed since that original empowering order began: "There is hereby created
    in the Veterans' Administration a Board of Veterans' Appeals under the administrative control and supervision of a
    chairman directly responsible to the Administrator of Veterans' Affairs."
    14
    VA's adjudication of claims for veterans benefits is overseen by principal officers.
    Regional office personnel designated by a principal officer—the Under Secretary for Benefits—
    make initial determinations. Board members, also referred to as veterans law judges, 13 decide
    claimants' appeals, acting in the name of the Secretary who appointed them (with the approval of
    the President, no less). The Secretary, a principal officer, has the authority to remove Board
    members for substandard performance or any other reason—"a powerful tool for control."
    Edmond, 
    520 U.S. at 664
    . The Chairman, another principal officer, controls their work assignments
    and performance incentive awards, plays a key role in assessing their performance and deciding
    whether it warrants their certification to continue to serve on the Board or their removal, and the
    Chairman has the power to require panel reconsideration of Board members' decisions. And the
    Secretary may address errors by providing equitable relief. Though no principal officer within VA
    can unilaterally reverse a Board decision, the meaningful supervision by principal officers goes
    beyond the supervision that the Supreme Court found inadequate in other contexts in Edmonds
    and Arthrex. VA's system provides significant structural safeguards that preserve political
    accountability through direction and supervision of subordinates—"in other words, through a chain
    of command." Arthrex, 141 S. Ct. at 1982; see Edmond, 
    520 U.S. at 659, 663
    . The President and
    public should know where to look if there are concerns: to the Secretary and the Chairman.
    My concurring colleague deems removal power and meaningful supervisory control
    inadequate, interprets Arthrex as requiring complete control by the Chairman and/or the Secretary,
    and therefore finds that only embedding this Court in the executive branch can save VA's structure.
    I respectfully disagree with his interpretation of Arthrex and other Supreme Court precedent.
    Moreover, Arthrex prescribed a different remedy for the error my colleague finds: requiring
    decisions by administrative law judges to be reviewed (and potentially reversed) by their director.
    Arthrex, 141 S. Ct. at 1986-87.
    The U.S. Court of Appeals for Veterans Claims
    My concurring colleague grounds his solution to the problem he sees on a statement by
    Chief Justice Roberts in Arthrex: "[W]hile the Board of Veterans' Appeals does make the final
    decision within the Department of Veterans Affairs . . . its decisions are reviewed by the Court of
    Appeals for Veterans Claims, an Executive Branch entity." 141 S. Ct. at 1984. That statement is
    dictum—made in a judicial opinion but "unnecessary to the decision in the case and therefore not
    precedential."14 Dictum, BLACK'S LAW DICTIONARY 569 (11th ed. 2019). The authority cited for
    that statement, Henderson v. Shinseki, 
    562 U.S. 428
    , 431-32 (2011), does not support it. Henderson
    says nothing of the branch to which this Court belongs, only that this Court is "an Article I tribunal"
    with a scope of review "similar to that of an Article III court." 
    562 U.S. at
    432 n.2. As will be
    detailed, the similarities are extensive enough to denote a familial relationship. And that is the
    13
    See 
    38 C.F.R. § 20.101
    (b) (2022).
    14
    Arthrex concerned the appointments of administrative patent judges and the Patent Trial and Appeal Board.
    141 S. Ct. at 1976. The process for VA's administrative adjudication of veterans claims and the independent judicial
    review of Board of Veterans' Appeals decisions by this Court were not at issue. The danger of dictum is that, though
    it is not binding, it "give[s] the appearance of carrying the cloak of judicial acceptance." Lasovick v. Brown, 
    6 Vet.App. 141
    , 153 (1994) (Ivers, J., concurring in part, dissenting in part). But "[d]ictum settles nothing, even in the court that
    utters it." Jama v. Immigr. & Customs Enf't, 
    543 U.S. 335
    , 352 n. 12 (2005).
    15
    answer to the Chief Justice's concern, expressed in dissent in City of Arlington v. FCC, 
    569 U.S. 290
    , 312-15 (2013), that the pervasive accumulation of legislative, executive, and judicial powers
    in the same branch endangers the separation of powers that safeguards liberty. The City of
    Arlington majority responded:
    Agencies make rules ("Private cattle may be grazed on public lands X, Y, and Z
    subject to certain conditions") and conduct adjudications ("This rancher's grazing
    permit is revoked for violation of the conditions") and have done so since the
    beginning of the Republic. These activities take "legislative" and "judicial" forms,
    but they are exercises of—indeed, under our constitutional structure they must be
    exercises of—the "executive Power."
    
    Id.
     at 305 n.4. That statement puts the Chief Justice's understandable "discomfort with the growth
    of agency power" in perspective. 
    Id.
     The City of Arlington majority's description of agency power
    covers VA and the Board, but not this Court, which is not part of the agency but a completely
    independent court of record. The actual creation, structure, and function of this Court do not
    support Arthrex's sidebar characterization.
    The Court's Structure
    The statute that established our Court describes it as "a court of record . . . known as the
    United States Court of Appeals for Veterans Claims." 
    38 U.S.C. § 7251
    . The statute covering the
    creation of the circuit courts of appeals provides that each circuit court shall be "a court of record,
    known as the United States Court of Appeals for the circuit." 
    28 U.S.C. § 43
    (a). The U.S. District
    Court for each district also is a court of record. 
    28 U.S.C. § 132
    (a).
    Circuit judges, district judges, and the nine Judges of this Court are "appointed by the
    President, by and with the advice and consent of the Senate." 
    28 U.S.C. §§ 44
    (a), 133(a); 
    38 U.S.C. § 7253
    . Circuit judges, district judges, and Judges of this Court are subject to residence
    requirements and receive salaries set by statute, 
    28 U.S.C. §§ 44
    , 134; 
    38 U.S.C. § 7253.15
     Each
    court has a chief judge, generally chosen based on seniority. 
    28 U.S.C. §§ 45
    , 136; 
    38 U.S.C. § 7253
    . District judges and circuit judges "hold office during good behavior," 
    28 U.S.C. §§ 44
    , 134.
    Each of this Court's nine Judges is appointed for a term of 15 years and may be removed by the
    President for misconduct or neglect of duty, with any judicial discipline tied to the process for
    circuit and district courts that goes through the Judicial Conference, as spelled out in 
    28 U.S.C. §§ 354
    (b)-361. 
    38 U.S.C. § 7253
    (g). Circuit judges, district judges, and the nine Judges of this Court
    may retire when they meet certain age and service requirements—which are the same for each
    court. 
    28 U.S.C. § 371
    ; 
    38 U.S.C. § 7296
    (b). For all three courts, retired judges who continue to
    work the equivalent of 3 months each year continue to receive the salary of the office, and those
    who do not continue to work receive retired pay at the rate of pay applicable at the time of
    retirement. 
    28 U.S.C. § 371
    ; 
    38 U.S.C. § 7257
    . At this Court, retired judges who give notice of
    their availability for further service and their willingness to be recalled may be recalled for further
    15
    Judges of this Court are salaried "at the same rate as is received by judges of the United States district
    courts." 
    38 U.S.C. § 7253
    .
    16
    service and "exercise all of the judicial powers and duties of the office of a judge in active service."
    
    38 U.S.C. § 7257
    .
    Pursuant to 
    38 U.S.C. § 7264
    (a) and 
    28 U.S.C. § 2071
    , the Court has prescribed rules of
    practice and procedure, as well "E-Rules" regarding the Court's use of the federal judiciary's
    automated system for case management and document filing, known as CM/ECF, which stands
    for Case Management/Electronic Case Filing. See U.S. VET. APP. R. 1-49. The Court also has
    constituted a Committee on Admission and Practice, Rules Advisory Committee, and Judicial
    Advisory Committee. U.S. VET. APP. R. 2, 40; Misc. Order 04-17.
    The Court has the power to punish by fine or imprisonment contempt of its authority. 
    38 U.S.C. § 7265
    (a). The statute specifically lists
    (1) misbehavior of any person in its presence or so near thereto as to obstruct the
    administration of justice;
    (2) misbehavior of any of its officers in their official transactions; or
    (3) disobedience or resistance to its lawful writ, process, order, rule, decree, or
    command.
    
    Id.
     And "[t]he Court shall have such assistance in the carrying out of its lawful writ, process, order,
    rule, decree, or command as is available to a court of the United States." 
    38 U.S.C. § 7265
    (b). The
    U.S. Marshals Service provides such assistance, as well as judicial security.
    The Court is authorized to hold judicial conferences involving the Judges of the Court,
    persons admitted to practice before the Court, and others active in the legal profession, "for the
    purpose of considering the business of the Court and recommending means of improving the
    administration of justice within the Court's jurisdiction." 
    38 U.S.C. § 7286
    . The Court is also
    authorized to impose a reasonable registration fee for participation in its judicial conferences, as
    well as "a reasonable periodic registration fee on persons admitted to practice before the Court."
    
    38 U.S.C. § 7285
    .
    In matters of ethics and financial disclosure, the Judges of this Court are listed in the
    definition of "judicial officer," and employees of this Court at a described pay rate are "judicial
    employees," 5 U.S.C App. 4 §§ 101(f)(10), 101(f)(11), 109(8), 109(10)—and not as officers or
    employees in the executive branch, 5 U.S.C App. 4 § 101(f)(3)—and the "supervising ethics
    office" for the judicial officers and judicial employees of this Court is the Judicial Conference of
    the United States, 5 U.S.C App. 4 § 109(18), which administers the provisions of the Ethics in
    Government Act for the judicial officers and judicial employees of this Court. 5 U.S.C App. 4 §
    111. With respect to taxing property sales, the tax code likewise defines Judges of this Court as
    "judicial officers," rather than as officers of the executive branch, for purposes of promoting
    compliance with conflict-of-interest requirements. 
    26 U.S.C. § 1043
    (b)(6).
    Because this Court is, well, a court and not an agency in the executive branch, it is not
    subject to the Freedom of Information Act, which defines "agency" as not including "the courts of
    the United States." 
    5 U.S.C. § 551
    (1)(B); see 
    5 U.S.C. § 552
    (f)(1); Megibow v. Clerk of U.S. Tax
    Ct., No. 04 CIV. 3321 (GEL), 
    2004 WL 1961591
    , at *4 (S.D.N.Y. Aug. 31, 2004) ("Congress has
    17
    left no doubt about the Tax Court's institutional nature [as a court] . . . and any contention that
    [legislative courts16] really constitute executive agencies of the sort to which FOIA applies would
    be baseless."), aff'd, 
    432 F.3d 387
     (2d Cir. 2005). And the Judges of this Court—like Article III
    judges—have absolute immunity from liability for damages for acts committed in their judicial
    capacity. See AV2 v. McDonough, No. CV 22-369, 
    2022 WL 1173180
    , at *8 (E.D. Pa. Apr. 20,
    2022) (military judge); Chisum v. Colvin, 
    276 F. Supp. 2d 1
    , 3 (D.D.C. 2003) (Tax Court judge).
    The Court has, by statute, a Clerk of Court, deputies, law clerks, secretaries, and other
    employees, all able to be appointed "without regard to the provisions of title 5 governing
    appointments in the competitive service." 
    38 U.S.C. § 7281
    (a)-(c). The statute empowers the Court
    to fix the rates of pay for these employees without regard to executive branch limitations and
    provides that, "[t]o the maximum extent feasible, the Court shall compensate employees at rates
    consistent with those for employees holding comparable positions in the judicial branch." 
    38 U.S.C. § 7281
    (d). Similar to the funding for Article III courts, this Court has a separate budget it
    submits "for inclusion in the budget of the President . . . without review within the executive
    branch." 
    38 U.S.C. § 7282
    (a). To ensure that the Court stands on equal footing with other federal
    courts, a statute specifically provides that the Court "may exercise, for purposes of management,
    administration, and expenditure of funds of the Court, the authorities provided for such purposes
    by any provision of law . . . applicable to a court of the United States (as that term is defined in
    section 451 of title 28)." 
    38 U.S.C. § 7287
    .
    The Court's Function
    This Court's function and powers are "quintessentially judicial." Freytag v. Comm'r of
    Internal Revenue, 
    501 U.S. 868
    , 891 (1991). The Court has "exclusive jurisdiction to review [final]
    decisions of the Board of Veterans' Appeals." 
    38 U.S.C. § 7252
    . Similarly, circuit courts of appeals
    "have jurisdiction of appeals from all final decisions of the district courts."17 
    28 U.S.C. § 1291
    .
    Like a district court, the Board conducts hearings and engages in factfinding—albeit from within
    the executive branch agency responsible for resolving the claims at issue. See 
    38 U.S.C. § 7107
    (c).
    Like a circuit court, this Court conducts appellate review based on the record. 
    38 U.S.C. § 7252
    (b).
    Decisions of this Court are subject to review by the Federal Circuit. 
    38 U.S.C. §§ 7252
    (c), 7292.
    From its inception, this Court has reviewed the record of proceedings on claims by veterans
    and their family members before VA and the Board of Veterans' Appeals and rendered binding
    judicial opinions, decisions, and orders that
    (1) decide all relevant questions of law, interpret constitutional, statutory, and
    regulatory provisions, and determine the meaning or applicability of the terms of
    an action of the Secretary;
    (2) compel action of the Secretary unlawfully withheld or unreasonably delayed;
    16
    Courts created by Congress pursuant to Article I are sometimes referred to as "legislative courts" to reflect
    the nature of their birth. No one contends that such courts perform legislative functions or are part of the legislative
    branch.
    17
    Of course, the jurisdiction of each circuit court of appeals is regional, while this Court's jurisdiction is
    nationwide.
    18
    (3) hold unlawful and set aside decisions, findings . . . , conclusions, rules, and
    regulations issued or adopted by the Secretary, the Board of Veterans' Appeals, or
    the Chairman of the Board found to be—
    (A) arbitrary, capricious, an abuse of discretion, or otherwise not in
    accordance with law;
    (B) contrary to constitutional right, power, privilege, or immunity;
    (C) in excess of statutory jurisdiction, authority, or limitations, or in
    violation of a statutory right; or
    (D) without observance of procedure required by law; and
    (4) In the case of a finding of material fact adverse to the claimant made in reaching
    a decision in a case before the Department with respect to benefits under laws
    administered by the Secretary, hold unlawful and set aside or reverse such finding
    if the finding is clearly erroneous.
    
    38 U.S.C. § 7261
    .
    In fiscal year 2021, the total number of dispositions by the Court as a whole—including
    decisions on appeals, petitions, applications under the Equal Access to Justice Act, and requests
    for reconsideration or decision by a three-judge panel—was 17,002. See U.S. CT. OF APPEALS FOR
    VETERANS CLAIMS, FISCAL YEAR 2021 ANN. REP., http://www.uscourts.cavc.gov/report.php. An
    early case highlighted "the binding effect of this Court's published opinions as precedent in
    pending and future cases," Harrison v. Derwinski, 
    1 Vet.App. 438
    , 438 (1991), citing Webster v.
    Reproductive Health Services, 
    492 U.S. 490
    , 518 (1989), for the proposition that "stare decisis is
    a cornerstone of our legal system." And my concurring colleague has emphasized that "[s]tare
    decisis . . . the idea that today's Court should stand by yesterday's decisions—is "'a foundation
    stone of the rule of law.'" Ravin v. Wilkie, 
    31 Vet.App. 104
    , 118 (2019) (Falvey, J., dissenting)
    (quoting Kimble v. Marvel Ent., 
    576 U.S. 446
    , 455 (2015)). In contrast, Board decisions are not
    precedential. 
    38 C.F.R. § 20.1304
     (2022).
    "Although not an Article III court, this Court has adopted the case-or-controversy
    requirement as a basis for exercising our exclusive jurisdiction in the veterans benefits arena, see
    
    38 U.S.C. § 7252
    , including the requirement that a case be dismissed when it becomes moot during
    the course of the appeal." Cardona v. Shinseki, 
    26 Vet.App. 472
    , 474 (2014); see Mokal v.
    Derwinski, 
    1 Vet.App. 12
    , 15 (1990) (adopting "the jurisdictional restrictions of the Article III case
    or controversy rubric").
    The statute spelling out the scope of our review specifies that this Court's mandate includes
    interpreting constitutional provisions and holding unlawful and setting aside decisions,
    regulations, and the like issued or adopted by the Secretary, the Chairman of the Board, or the
    Board found to be "contrary to constitutional right, power, privilege, or immunity." 
    38 U.S.C. § 7261
    (a)(1), (3). In addition, "[t]he Court's authority to find a statute unconstitutional is well settled
    by precedential decisions of the Court," recognized by other federal appellate courts, reflected in
    the legislative history of the establishment of the Court, and "'inherent in the Court's status as a
    Court of law.'" Copeland v. Shinseki, 
    26 Vet.App. 86
    , 90 n.4 (2012) (collecting cases and quoting
    Dacoron, 4 Vet.App. at 119).
    19
    The statute that provides for the award of attorney fees under the Equal Access to Justice
    Act has, for 30 years, specified that this Court is a court that can make such awards. 
    28 U.S.C. § 2412
    (d)(2)(F) ("'[C]ourt' includes . . . the United States Court of Appeals for Veterans Claims").
    As this Court has chronicled,
    "'[t]he objective of EAJA is to eliminate financial deterrents to individuals
    attempting to defend themselves against unjustified government action. Veterans
    are among the types of individuals the statute was intended to help.'" Abbs v.
    Principi, 
    237 F.3d 1342
    , 1347 (Fed. Cir. 2001) (quoting H.R. Rep. No. 102-1006,
    at 25 (1992), 1992 U.S.C.C.A.N.[] 3921, 3934). "EAJA applies, and its central
    policy is of particular significance, in the 'uniquely pro-claimant' system for
    adjudicating veterans' claims for benefits" because EAJA "'helps to ensure that
    [veterans] will seek an appeal when the [Department of Veterans Affairs] has failed
    in its duty to aid them or has otherwise erroneously denied them the benefits that
    they have earned.'" Wagner v. Shinseki, 
    733 F.3d 1343
    , 1344 (Fed. Cir. 2013)
    (alterations in original) (quoting Kelly v. Nicholson, 
    463 F.3d 1349
    , 1353 (Fed. Cir.
    2006)).
    Froio v. McDonald, 
    27 Vet.App. 352
    , 355–56 (2015)
    In 2017, the Federal Circuit held that this Court has the authority to certify and adjudicate
    class action cases "under the All Writs Act, other statutory authority, and the . . . Court's inherent
    powers." Monk v. Shulkin, 
    855 F.3d 1312
    , 1318 (Fed. Cir. 2017). The Court also has the power to
    issue a writ of mandamus and all writs appropriate in aid of our jurisdiction and our prospective
    jurisdiction where failure to act "would forever frustrate the ability of [this Court] to exercise its
    appellate jurisdiction.'" Love v. McDonough, 
    35 Vet.App. 336
    , 342 (2022) (quoting Erspamer v.
    Derwinski, 
    1 Vet.App. 3
    , 8 (1990)). "The [All Writs Act] 'permits federal courts to fill gaps in their
    judicial power where those gaps would thwart the otherwise proper exercise of their jurisdiction.'"
    Gardner-Dickson v. Wilkie, 
    33 Vet.App. 50
    , 55 (2020) (quoting Monk, 855 F.3d at 1318).
    If the foregoing is not enough, the United States officially lists this Court in the judicial
    branch. The United States Government Manual, published by the Office of the Federal Register,
    National Archives and Records Administration, describes this Court as one of the "Special Courts"
    within the judicial branch.18 The official website of the U.S. Government, www.usa.gov, lists the
    Government branch of this Court as "Judicial." 19
    Legislative History
    18
    OFF. OF THE FED. REG., NAT'L ARCHIVES & RECS. ADMIN., THE UNITED STATES GOVERNMENT MANUAL
    166 (2021), https://www.govinfo.gov/content/pkg/GOVMAN-2021-12-22/pdf/GOVMAN-2021-12-22.pdf.
    19
    See U.S. Court of Appeals for Veterans Claims, https://www.usa.gov/federal-agencies/u-s-court-of-
    appeals-for-veterans-claims (last accessed Oct. 19, 2022). USA.gov is the federal internet portal established pursuant
    to the E-Government Act of 2002; it is administered by a division of the U.S. General Services Administration's
    Technology Transformation Services.
    20
    The other concurrence misapprehends the legislative history of the Veterans' Judicial
    Review Act (VJRA).20 The portion of that history my concurring colleague recites—the proposal
    to establish this Court in the executive branch in place of the Board—was rejected in a sea change
    that resulted in the creation of the independent court providing judicial review from outside the
    executive branch agency. That outcome was a compromise by Representatives who favored the
    intra-executive branch proposal the other concurrence cites, and by Senators who favored sending
    veterans' cases to the district or circuit courts. In the words of a principal sponsor in the House:
    "[W]e have crafted a compromise bill which will allow an independent review by a court of the
    VA's decision on a veteran's claim." 134 CONG. REC. 31770 (1988). Another Representative noted
    that "[t]he specialty court will be an independent, impartial body." 134 CONG. REC. 31790. Yet
    another said the new Court, "as a judicial tribunal, has the authority to establish its own rules of
    practice and procedure" and "has full judicial standing, including authority to issue and enforce its
    judicial decrees and writs . . . like any other U.S. court." 134 CONG. REC. 31788.
    A Senate sponsor said independent judicial review was required because
    [f]undamental principles of due process, as guaranteed by the Constitution, require
    an independent review of administrative action affecting individual's liberty or
    property interests. Although there are earlier court decisions suggesting that
    veterans' benefits are gratuities and not worthy of general due process protections,
    such a viewpoint is no longer valid, if it ever was, either philosophically—veterans'
    benefits are earned by military service—or legally. A number of decisions rendered
    by the Supreme Court in the last two decades . . . have held that various statutory
    governmental benefits are legal entitlements and, thus, protected property interests
    of the beneficiary. I do not believe that review by the Board of Veterans' Appeals
    provides the required independent action required by due process.
    134 CONG. REC. 31465-66.
    The budget provision now codified at 
    38 U.S.C. § 7282
     was an effort to ensure the
    independence of the Court by providing that the Court's budget be submitted by the Court to
    Congress "without any review within the executive branch . . . . [to] enable the court to conduct its
    business without the specter of executive branch influence over or involvement in its proceedings."
    134 CONG. REC. 31470.
    Some in Congress were even more direct about their branch expectations. One
    Representative supported the compromise bill to "guarantee the veteran actual judicial review of
    all VA decisions" and guarantee accountability in that the "Constitution clearly defined the role of
    the three branches of our Government and provided for court review of actions by the other two
    branches. With this right comes the right that any individual citizen has to go to court and seek a
    review." 134 CONG. REC. 27792. And a Senator similarly said:
    To me it is unacceptable to deny veterans, their dependents and their survivors the
    basic protection of the independent judicial branch of our Government. S. 11 will
    20
    Ante at 6 n.3.
    21
    correct the current shortcomings and ensure that veterans and other claimants
    before the VA receive all benefits to which they are entitled under the law.
    134 CONG. REC. 31224.
    Article I Judicial Power of the United States
    My concurring colleague notes that administrative agency power is executive power.21 Just
    so, but any implication that this Court exercises administrative agency power completely misses
    the mark. Next he contends of this Court that "[b]ecause we wield neither legislative power under
    Article I nor judicial power under Article III, we must wield executive power under Article II."22
    That jumbles the power structure the Supreme Court described with a rhetorical question in 1933:
    "If the power exercised by legislative courts is not judicial power, what is it? Certainly it is not
    legislative, or executive, or administrative power, or any imaginable combination thereof."
    Williams v. United States, 
    289 U.S. 553
    , 567 (1933). And Williams traced the lineage of its holding
    that "judicial power apart from [Article III] may be conferred by Congress upon legislative courts"
    to "the opinion of Chief Justice Marshall in American Insurance Company et al. v. Canter, 
    1 Pet. 511
    , 546, 
    7 L. Ed. 242
     [1828]." Williams, 
    289 U.S. at 565
    . Lest this principle be thought lost in
    the dustbin of history, it was fully embraced in Freytag as
    [the Supreme] Court's time-honored reading of the Constitution as giving Congress
    wide discretion to assign the task of adjudication in cases arising under federal law
    to legislative tribunals . . . [The Supreme Court's] cases involving non-Article III
    tribunals have held that these courts exercise the judicial power of the United
    States.
    Freytag, 
    501 U.S. at 889
     (emphasis added).
    For more than 30 years, this Court has relied on Freytag to state that we exercise "the
    judicial power of the United States." Jones v. Derwinski, 
    1 Vet.App. 596
    , 607 (1991); see, e.g.,
    Dacoron, 4 Vet.App. at 119 ("[This Court's] power to review claims pertaining to the
    constitutionality of statutory and regulatory provisions. . . . is inherent in the Court's status as a
    court of law."); Copeland, 26 Vet.App. at 90 n.4 (highlighting "our duty as a Court exercising
    judicial power" to address constitutional issues); Rickett v. Shinseki, 
    26 Vet.App. 210
    , 222 (2013)
    (per curiam order) (en banc), withdrawn on other grounds, 
    27 Vet.App. 240
     (2015). In Rickett, this
    Court noted that "a judicial appeal and its adversarial process . . . [are] decidedly not within VA,"
    and explained: "Indeed, VA is an executive branch agency and the Secretary is an adverse party
    in litigation before the Court, which exercises the judicial power of the United States." 26 Vet.App.
    at 222.
    There is no sound reason to disregard either these precedential decisions by our Court or
    the Supreme Court's decision in Freytag. My concurring colleague posits that Freytag "does not
    21
    Ante at 6 nn.2, 7.
    22
    Ante at 7.
    22
    appear to survive later Supreme Court decisions," citing Stern v. Marshall.23 He emphasizes the
    observation in Stern that "Article III of the Constitution provides that the judicial power of the
    United States may be vested only in courts whose judges enjoy the protections set forth in that
    Article." Stern v. Marshall, 
    564 U.S. 462
    , 503 (2011).24 Based on that view, the Supreme Court
    concluded that Congress exceeded its constitutional authority by empowering the Bankruptcy
    Court "to enter a final judgment on a state law counterclaim that is not resolved in the process of
    ruling on a creditor's proof of claim." 
    Id.
     But Stern does not even mention Freytag, much less
    overrule it. And the expansive Stern view of the exclusivity of Article III (upon which my
    colleague relies) did not prevail in the next Supreme Court case to consider the subject in the
    bankruptcy context.25
    In more than three decades, no Supreme Court case has overruled Freytag or even
    expressly questioned it. Arthrex endorses Freytag as an example of a proper appointment and
    adjudication plan. 141 S. Ct. at 1984. To be sure, the other concurrence may accurately predict
    that a decision affirmatively segregating Article III judges from Article I judges is coming
    someday. None of the Supreme Court Justices that decided Freytag are on the Court now, and
    some current Justices have embraced Justice Scalia's partial concurrence in Freytag, rather than
    the majority opinion.26 See, e.g., Ortiz v. United States, 
    138 S. Ct. 2165
    , 2192 (2018) (Alito, J.
    dissenting); Oil States Energy Servs., LLC v. Greene's Energy Grp., LLC, 
    138 S. Ct. 1365
    , 1374,
    1378 (2018). Oil States provides more opacity than clarity, noting the Supreme Court's
    inconsistency in public rights cases and adding some of its own—echoing the Stern proposition
    that "Congress cannot 'confer the Government's judicial Power on entities outside Article III,'" but
    holding that agency board adjudication of a patent dispute was permissible because the board did
    not exercise Article III judicial power, citing Williams. 138 S. Ct. at 1372-73, 1378. Williams held
    that "judicial power apart from [Article III] may be conferred by Congress upon legislative courts,"
    
    289 U.S. at 565
    , so it was not surprising that the Chief Justice joined a dissent contending that the
    Oil States majority had not really applied Stern. Oil States, 138 S. Ct. at 1381. The Ortiz majority
    follows Freytag (without citing it) by recognizing that military courts, like territorial courts,
    exercise judicial power, just not under Article III.27 138 S. Ct. at 2175-78. Arthrex and Stern were
    decided by the slimmest of margins. What should be determinative is not foresight but fidelity to
    standing precedent—Freytag—and to the principle of independent judicial review upon which
    both our Nation and this Court were founded.
    23
    Ante at 8.
    24
    See id.
    25
    In Wellness International Network, Ltd. v. Sharif, the Supreme Court observed that "[a]n expansive reading
    of Stern . . . would be inconsistent with the opinion's own description of its holding," which the Stern court said was
    a narrow one that did not change much. 
    575 U.S. 665
    , 682 (2015). Dissenting from the Wellness holding that "Article
    III permits bankruptcy courts to decide Stern claims submitted to them by consent," id. at 685, Chief Justice Roberts
    declared that Article III's life tenure and salary protection was a structural safeguard that must be guarded even against
    consent. Id. at 688.
    26
    My concurring colleague also prefers and relies on Justice Scalia's Freytag concurrence. Ante at 8.
    27
    See also Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv., LLC, 
    140 S. Ct. 1649
    , 1659, 1664 (2020)
    (first citing Am. Ins. Co. v. 356 Bales of Cotton, 
    26 U.S. 511
    , 546 (1828); then citing Palmore v. United States, 
    411 U.S. 389
    , 407 (1973)) (providing that "territorial courts may exercise the judicial power of the Territories,", and the
    Article I court for the District of Columbia exercises local judicial power).
    23
    My colleague also throws shade on Freytag by endorsing the interpretation of it in Kuretski
    v. Commissioner of Internal Revenue. Rejecting a taxpayer's erroneous assertion that Tax Court
    judges exercise Article III judicial power, Kuretski said that the Freytag Court "used the phrase
    'judicial power' in 'an enlarged sense,' not in the particular sense employed by Article III." 
    755 F.3d 929
    , 941 (D.C. Cir. 2014). The use of the words "in 'an enlarged sense'" might be a fair
    characterization of Freytag if Kuretski—and then my colleague—did not define "'in an enlarged
    sense'" as encompassing "'all those administrative duties the performance of which involves an
    inquiry into the existence of facts and the application to them of rules of law.'" Kuretski, 755 F.3d
    at 941 (quoting Murray's Lessee v. Hoboken Land & Improvement Co., 
    59 U.S. 272
    , 280 (1855)).28
    That definition distorts and diminishes Freytag. The "enlarged sense" characterization comes from
    Justice Scalia's partial concurrence, not the majority opinion. Freytag, 
    501 U.S. at 909-10
     (Scalia,
    J., concurring in part). The Freytag holding quite specifically and thoroughly sets out that Article
    I courts, such as the Tax Court, that perform exclusively judicial functions exercise the judicial
    power of the United States and are "Courts of Law" within the meaning of the Appointments
    Clause. 
    Id. at 888-92
    . Freytag thus covers this Court, as we have previously held.29
    Moreover, the Tax Court persuasively rebutted Kuretski in Battat v. Commissioner of
    Internal Revenue, describing in detail the Tax Court's exclusively judicial function and embracing
    the Freytag holding that the Tax Court exercises only judicial power (and not executive power).30
    
    148 T.C. 32
    , 36-48, 59 (2017). The Battat Court declared: "While the Tax Court exercises a portion
    of the judicial power of the United States, . . . it has jurisdiction to adjudicate only public rights
    disputes, . . . and thus does not exercise that portion of the judicial power that is reserved for Article
    III judges." Id. at 53. So it is with this Court. And this Court has an even clearer hold on the portion
    of the judicial power of the United States under Article I because this Court did not originate as a
    board that was designated as an agency in the executive branch. Cf. id. at 34-35.
    In Wellness, the Supreme Court emphasized the importance of determining whether there
    was impermissible encroachment that threatened the institutional integrity of the judicial branch
    by looking to the practical effect of the congressional exercise of its Article I powers, rather than
    "'formalistic and unbending rules.'" 575 U.S. at 678-80 (quoting Commodity Futures Trading
    Comm'n v. Schor, 
    478 U.S. 833
    , 851 (1986)). The Schor factors Wellness embraced and applied
    included the extent to which the Article I court "exercises the range of jurisdiction and powers
    normally vested only in Article III courts, the origins and importance of the right to be adjudicated,
    and the concerns that drove Congress to depart from the requirements of Article III.'" Wellness,
    575 U.S. at 678-79 (quoting Schor, 
    478 U.S. at 851
    ).
    28
    Ante at 8.
    29
    Supra at 22.
    30
    As Battat highlighted, Kuretski also was wrong to equate the Tax Court with the Court of Appeals for the
    Armed Forces (CAAF). 148 T.C at 40-41 n.15. In Edmond, the Supreme Court noted that the Uniform Code of Military
    Justice states that Court of Appeals for the Armed Forces is "located for administrative purposes only in the
    Department of Defense" and "its judges must meet annually in committee with the Judge Advocates General and two
    members appointed by the Secretary of Defense to survey the operation of the military justice system," 
    520 U.S. at 665
     (quoting 
    10 U.S.C. §§ 941
    , 946). See also Ortiz, 
    138 S. Ct. at 2176
     ("Congress located the CAAF . . . within the
    Executive Branch, rather than the judicial one.").
    24
    Measured against these Wellness/Schor factors, it is clear that the creation of this Court and
    its judicial power do "not usurp the constitutional prerogatives of Article III courts." See Wellness,
    575 U.S. at 679. Our jurisdiction is narrowly limited to the independent judicial review of final
    decisions of the Board regarding veterans benefits claims. The system that Congress created for
    the adjudication of veterans claims "is strongly and uniquely pro-claimant," Hodge v. West, 
    155 F.3d 1356
    , 1362 (Fed. Cir. 1998), and dramatically more protective of veterans rights than the
    construct for ordinary civil litigation. Henderson v. Shinseki, 
    562 U.S. at 440
    . These systemic
    choices reflect national gratitude for the "the special sacrifices made by veterans of military
    service." Johnson v. Robison, 
    415 U.S. 361
    , 381 n.15 (1974). The longstanding solicitude of
    Congress for veterans, see United States v. Oregon, 
    366 U.S. 643
    , 647 (1961), is reflected in "laws
    that 'place a thumb on the scale in the veteran's favor in the course of administrative and judicial
    review of VA decisions.'" Henderson, 
    562 U.S. at 440
     (quoting Shinseki v. Sanders, 
    556 U.S. 396
    ,
    416 (2009) (Souter, J., dissenting)).
    Nothing indicates that by creating a means of independent judicial review of VA decisions,
    Congress sought to aggrandize itself, humble the judiciary, or emasculate constitutional courts.
    See Wellness, 575 U.S. at 679-80; Schor, 
    478 U.S. at 850
    . Quite the contrary. The statutory choices
    and legislative history reflect that Congress wanted to afford veterans, their dependents, and
    survivors due process through court review by the independent judicial branch and consequently
    established a specialty court to provide that review with a focus that would facilitate expeditious
    resolution, consistency, and the development of expertise and would not overburden district and
    circuit courts.
    The Judicial Branch
    The foregoing demonstrates and other cases have affirmed that this Court provides judicial
    review from outside the executive branch. See George v. McDonough, 
    142 S. Ct. 1953
    , 1957
    (2022) ("If the Board . . . denies relief, the veteran may seek further review outside the agency"
    by appealing to this Court. (emphasis added)); Romero v. Tran, 
    33 Vet.App. 252
    , 259 (2021)
    (noting, in applying the presumption of regularity, that the presumption's rationale includes
    separation of powers and the judiciary's conscious effort not to intrude on the executive branch's
    operations without good cause); Ravin, 31 Vet.App. at 124 (Falvey, J., dissenting) (citing with
    approval a prior criticism of the Court for departing from "'judicial review of policies established
    by the popularly-elected and therefore publicly accountable legislative and executive branches'"
    (quoting Carpenter v. Principi, 
    15 Vet.App. 64
    , 81 (2001))); DeBeaord v. Principi, 
    18 Vet.App. 357
    , 368 (2004) (holding that the Court could not rewrite a statute, as the appellant sought, because
    that remedy was "within the province of the legislative and executive branches, which,
    respectively, make and execute the laws"); Werden v. West, 
    13 Vet.App. 463
    , 468 (2000) ("[T]he
    Court does not have jurisdiction to review the manner in which the Secretary disburses [the special
    adaptive housing] grant. . . . [because that] is exactly the type of question of policy or resource
    management that is made by the executive branch and is not an appropriate matter for judicial
    review.").
    One justification for Article I courts that has long been recognized distinguishes private
    lawsuits at common law from those involving public rights "which arise between the Government
    and persons subject to its authority," such that Congress completely controls whether to "reserve
    25
    to itself the power to decide, . . . delegate that power to executive officers, or . . . commit it to
    judicial tribunals." Crowell v. Benson, 
    285 U.S. 22
    , 50-51 (1932). Providing a familiar illustration
    of an administrative agency Congress created to determine a public right, Crowell highlighted the
    congressional power to regulate payments to veterans.31 
    Id.
     at 51 That truth covers the Board—as
    an arm of VA, an administrative agency in the executive branch—but only begins the consideration
    that leads to a different conclusion for this Court. Crowell recognized that such consideration
    properly looks not merely to form but to substance. 
    285 U.S. at 53
    . "The enduring lesson of
    Crowell is that practical attention to substance rather than doctrinaire reliance on formal categories
    should inform application of Article III."32 Thomas v. Union Carbide Agric. Prods. Co., 
    473 U.S. 568
    , 587 (1985).
    My concurring colleague opts for "doctrinaire reliance on formal categories" over
    substance by contending that this Court's status as an Article I tribunal "means that the Court wields
    executive power" rather than judicial power, and therefore cannot be in the judicial branch.33 But
    the Supreme Court has made clear that the judicial branch includes more than just Article III
    judges. Neither bankruptcy judges nor magistrate judges enjoy Article III tenure and salary
    protections, but both serve in the judicial branch as adjuncts of the district court. See Wellness, 575
    U.S. at 668; N. Pipeline Const. Co. v. Marathon Pipe Line Co., 
    458 U.S. 50
    , 77 (1982); 
    28 U.S.C. §§ 152
    (a) (a "bankruptcy judge shall be appointed for a term of 14 years"), 631(e) ("The
    appointment of any individual as a full-time magistrate judge shall be for a term of eight years.").
    Moreover, in 1989, the Court held that there was "no separation-of-powers impediment to the
    placement of the Sentencing Commission within the Judicial Branch." Mistretta v. United States,
    
    488 U.S. 361
    , 390 (1989). The Court looked to constitutional framer James Madison's recognition
    "that our constitutional system imposes upon the [b]ranches a degree of overlapping responsibility,
    a duty of interdependence as well as independence" to govern effectively. 
    Id. at 381
    . Though the
    Sentencing Commission is composed of judges and non-judges, the Court observed that it had
    previously recognized Congress's power to create similar entities with mixed staffs, including the
    Judicial Conference of the United States, the Rules Advisory Committees, and the Administrative
    Office of the United States Courts (whose responsibilities include the administration of the entire
    U.S. Probation Service). 
    Id. at 388-89
    . Though the Sentencing Commission wields rulemaking
    power rather than adjudicatory power, the Court found that the nature of the Commission's work
    was related and "not incongruous or inappropriate" to that of the judicial branch. 
    Id. at 396
    .
    The Mistretta Court also observed that the judges who served as commissioners would
    wield administrative, rather than judicial, power. 
    Id. at 404
    . And the Court found that the
    31
    The Chief Justice's dissent in Wellness agreed:
    With narrow exceptions, Congress may not confer power to decide federal cases and controversies
    upon judges who do not comply with the structural safeguards of Article III. Those narrow
    exceptions permit Congress to establish non-Article III courts to . . . adjudicate disputes over "public
    rights" such as veterans' benefits.
    575 U.S. at 689-90.
    32
    "After Thomas, it would not offend the Constitution if an Article I court determined private rights if such
    rights were 'closely integrated into a public regulatory scheme' over which the Article I tribunal had been assigned
    jurisdiction by Congress." Smith v. Derwinski, 
    1 Vet.App. 267
    , 273 (1991) (quoting Thomas, 
    473 U.S. at 586
    ).
    33
    Ante at 6-7.
    26
    President's power to appoint and remove commissioners, including Article III judges, posed a
    "negligible threat to judicial independence"—because judges could only be stripped of their status
    on the Commission and Congress had safeguarded the independence of the Commission from
    executive control by specifying that the President could remove commissioners only for good
    cause, thereby ensuring that they would not be subject to coercion. Id. at 410-11; see Battat, 148
    T.C. at 55-56 n.35. Though Battat did not make a branch determination, it noted that Mistretta
    held that the limited "for cause" interbranch removal power of the President was not a separation
    of powers problem, even for an Article I appointment within the judicial branch. Id.
    It should be obvious that if the work of an administrative rulemaking entity such as the
    Sentencing Commission is sufficiently related to the work of the judicial branch to belong there,
    the exclusively judicial review by this Court is, too. It is equally clear that the Sentencing
    Commission, magistrate judges, bankruptcy judges, this Court, and the Article III courts are not
    equivalent entities. But that fact is not against or beside the point, as my concurring colleague
    seems to argue. It is the point—being an Article III judge is not a prerequisite for judiciary branch
    membership. And the comparison to the Sentencing Commission highlights emphatically that this
    Court's work is far from "incongruous or inappropriate" to the judicial branch. Mistretta, 
    488 U.S. at 396
    . The interdependence that Madison and the Mistretta Court saw is not an elitist, insular
    judicial branch, but one encompassing judges and some non-judges that "share the common
    purpose of providing for the fair and efficient fulfillment of [the judiciary's] responsibilities." 
    Id. at 389
    . The choice by Congress to create this Court to provide independent judicial review most
    assuredly does not diminish the likelihood of impartial decisionmaking, free from political
    influence; Congress's choice increases that likelihood exponentially, and that choice does not
    encroach on the judicial powers of Article III courts, it augments them. Congress may confer on
    an Article I court the power to decide federal cases and controversies over public rights such as
    veterans' benefits, see Wellness, 575 U.S. at 689-90, and has done so. That action does not render
    the Court an executive agency. The "scholarly support" my concurring colleague has mustered
    unwittingly solves the puzzle in a way that contradicts his (and the cited author's) premise:
    What makes applying law to facts an exercise of the judicial power is the nature
    and purpose of that application.. . . .If it is done by an executive agency to guide its
    actions, it is not an exercise of the judicial power. If, however, it is done for
    opposing parties by a neutral with the purpose of authoritatively pronouncing the
    law in officially resolving a dispute between these opponents, then it is an exercise
    of the judicial power.
    Craig A. Stern, What's A Constitution Among Friends?—Unbalancing Article III, 146 U. PA. L.
    REV. 1043, 1052-53 (1998). As the Supreme Court called it in Freytag, the Court exercises the
    judicial power of the United States under Article I (rather than Article III).
    Reconciliation of the Supreme Court case variations should yield a principled line that
    places this Court in the judicial branch, for it is not an agency entity using court-like procedures
    but fully a federal court exercising a portion of the judicial power of the United States by providing
    independent judicial review of agency decisions regarding claims for veterans benefits.
    Conclusion
    27
    In sum, the petitioner has not met the standards for either extraordinary relief or recall of
    mandate, as the Court's opinion covers. Since Arthrex, the U.S. Court of Appeals for the Federal
    Circuit has declined to address the question my concurring colleague would resolve—whether the
    manner in which Board members are appointed violates the Appointments Clause—because the
    plaintiff, like Mr. Prewitt, "ha[d] not addressed the substantial degree of supervision and control
    exercised by the Board over the assignments and decisions of the Board's administrative judges."
    Rodriguez v. Dep't of Veterans Affs., 
    8 F.4th 1290
    , 1308 (Fed. Cir. 2021). However, if "our
    rejection of the veteran's construed motion to recall mandate warrants a fuller explanation" and
    "requires us to consider this Court's place in the Constitution's structure," 34 I would deny the
    petition because, though the Court is a judicial body wielding the judicial power of the United
    States pursuant to Article I and not an executive agency supervising the Board, the Board has
    meaningful supervision by the Secretary and the Chairman of the Board, who are accountable to
    the President. See Rodriguez, 8 F.4th at 1308. If yet clearer accountability is deemed necessary,
    the determination of how to address any deficiency should be made by legislative enactment or
    executive regulation that is mindful of the Supreme Court's remedy in Arthrex—declaring the
    statute at issue unconstitutional to the extent that it precluded the patent board's director from
    reversing the decisions of administrative patent judges, 141 S. Ct. at 1986-87—and the current
    requirement that impartial Board members render "just and speedy decisions" in accordance with
    applicable statutes, regulations, and precedent opinions of VA's General Counsel. See 
    38 C.F.R. §§ 20.1
    (b) (2022) (the Board's rules of practice "are to be construed to secure a just and speedy
    decision in every appeal"); 20.105 (2022) ("criteria governing disposition of appeals"); 20.107
    (providing for disqualification of a Board member if there are "circumstances which might give
    the impression of bias either for or against the appellant."). The answer is not to reimagine this
    Court by ignoring or discarding its creation, structure, and function. The statutes and regulations
    that reflect the establishment of this Court and govern its independent judicial review are not, as
    my colleague hints, mere trappings like a powdered wig or a black robe to make agency
    adjudication seem judicial.
    Acknowledging that the Court belongs in the judiciary is not an encroachment that
    undermines the separation of powers principle, diminishes the purity or institutional integrity of
    the judicial branch, or threatens the life tenure of Article III judges. Article III's tenure and salary
    protections exalt and protect the federal judges imbued with the broadest possible substantive
    jurisdiction. Though "Congress could choose to rest the full share of the Judiciary's labor on the
    shoulders of Article III judges," Wellness, 575 U.S. at 680, Congress has acted under Article I to
    supplement district courts with magistrate and bankruptcy judges and establish specialized federal
    courts to exercise judicial power over cases involving public rights. Our constitutional creation
    story is the same as that of the federal circuit courts and district courts—by Congress, under Article
    I—except we were created nearly 200 years later and our creation does not confer Article III's
    tenure and salary protection. Proper consideration of this Court's place in the judicial hierarchy
    recognizes that it is an inferior court that was created to provide, and actually provides,
    independent judicial review35 by Article I judges with statutory tenure and salary protections that
    34
    Ante at 4.
    35
    Moreover, the independent judicial review this Court provides is itself reviewable only by Article III's U.S.
    Court of Appeals for the Federal Circuit and the U.S. Supreme Court, and not by or with executive supervision or
    28
    approach those for Article III judges. And the difference in such protections is neither corrosive
    nor branch determinative, but tolerable for a narrower class of cases that warrant special attention.
    It is the assertion that judges wield executive power, and vice versa, that is the affront to separation
    of powers.
    The complexity and supreme importance of this issue emphasize that it should not have
    been reached in the context of this petition, but my colleague's concurrence could not go
    unaddressed. His placement of the Court in the executive branch, exercising executive power—or
    "a form of administrative 'judicial power'" 36 —would undercut, even nullify, the congressional
    compromise that overcame two centuries of not-so-splendid isolation to provide those whose
    service and sacrifice established and have sustained our nation—veterans and their dependents and
    survivors—the basic protection of review of agency decisions in the independent judicial branch.
    And my colleague's assessment that such placement would have no practical effect fails to
    appreciate the apprehension that such internal review is not impartial. Keeping the judiciary
    judicial honors, promotes, protects, and advances our common and most critical attributes, such as
    the importance of independent judicial review.
    control.
    36
    Ante at 8.
    29
    

Document Info

Docket Number: 22-3306

Filed Date: 12/5/2022

Precedential Status: Precedential

Modified Date: 1/24/2023

Authorities (36)

Chisum v. Colvin , 276 F. Supp. 2d 1 ( 2003 )

Northern Pipeline Construction Co. v. Marathon Pipe Line Co. , 102 S. Ct. 2858 ( 1982 )

Immigration & Naturalization Service v. Chadha , 103 S. Ct. 2764 ( 1983 )

Den Ex Dem. Murray v. Hoboken Land & Improvement Co. , 15 L. Ed. 372 ( 1856 )

Commodity Futures Trading Commission v. Schor , 106 S. Ct. 3245 ( 1986 )

Lyng v. Northwest Indian Cemetery Protective Assn. , 108 S. Ct. 1319 ( 1988 )

Burke Hensley, Claimant-Appellant v. Togo D. West, Jr., ... , 212 F.3d 1255 ( 2000 )

Lewis Hodge, Claimant-Appellant v. Togo D. West, Jr., ... , 155 F.3d 1356 ( 1998 )

Herbert J. Abbs and Peter J. Wisner, Claimants-Appellants v.... , 237 F.3d 1342 ( 2001 )

Christopher v. Harbury , 122 S. Ct. 2179 ( 2002 )

Thomas v. Union Carbide Agricultural Products Co. , 105 S. Ct. 3325 ( 1985 )

Webster v. Reproductive Health Services , 109 S. Ct. 3040 ( 1989 )

Freytag v. Commissioner , 111 S. Ct. 2631 ( 1991 )

Kisor v. Wilkie , 204 L. Ed. 2d 841 ( 2019 )

Terry A. Ledford, Claimant-Appellant v. Togo D. West, Jr., ... , 136 F.3d 776 ( 1998 )

Crowell v. Benson , 52 S. Ct. 285 ( 1932 )

Bonnie Sargent v. Columbia Forest Products, Inc. , 75 F.3d 86 ( 1996 )

Shinseki, Secretary of Veterans Affairs v. Sanders , 129 S. Ct. 1696 ( 2009 )

J. W. Hampton, Jr., & Co. v. United States , 48 S. Ct. 348 ( 1928 )

Kerr v. United States Dist. Court for Northern Dist. of Cal. , 96 S. Ct. 2119 ( 1976 )

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