Robert v. Chisholm v. Robert A. McDonald ( 2016 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 15-1594
ROBERT V. CHISHOLM , PETITIONER,
V.
ROBERT A. MCDONALD ,
SECRETARY OF VETERANS AFFAIRS, RESPONDENT .
Before HAGEL, Chief Judge, and KASOLD and DAVIS, Judges.
ORDER
On April 27, 2015, attorney Robert V. Chisholm filed a petition for extraordinary relief in
the nature of a writ of mandamus. He asks the Court to compel the Secretary "to grant access for
paralegals under [his] supervision to the Veterans Benefits Administration's automated claims
records system pursuant to 38 C.F.R. § 14.629 (2014) ('Requirements for accreditation of service
organization representatives; agents; and attorneys')."1 Petition at 2; see 38 C.F.R. § 14.629, Note
(2016) ("A legal intern, law student, paralegal, or veterans service organization support-staff person,
working under the supervision of an individual designated under § 14.631(a) as the claimant's
representative, attorney, or agent, may qualify for read-only access to pertinent Veterans Benefits
Administration automated claims records as described in §§ 1.600 through 1.603 in part 1 of this
chapter."). The Secretary has not provided such access, citing privacy concerns and technological
infeasibility.2 In the alternative, Mr. Chisholm asks the Court to compel the Secretary "to issue a
1
VA regulations permit access to accredited attorneys or organizations, but state that a person or person
representing an organization "will use only his or her assigned password to obtain access," cannot "reveal his or her
password to anyone else, or allow anyone else to use his or her password," and "will access only the [Veterans Benefits
Administration's] automated claims record of VA claimants who are represented by the person obtaining access."
38 C.F.R. § 1.602(a)(2)-(4) (2016).
2
VA's Deputy General Counsel explained that "'use of an attorney's code would allow an employee to access
the records of all claimants whom the attorney represents, which would violate the Privacy Act if all clients did not assent
to disclosure of their records to the employee.'" Secretary's Sept. 25, 2015, Response at 3 (quoting Sept. 18, 2015, letter
from VA Deputy General Counsel to petitioner). The VA Deputy General Counsel explained further that under
38 C.F.R. § 14.629(c)(3), for a paralegal to assist in the preparation, presentation, or prosecution of a claim, "the
claimant's written consent" must be provided to VA, and "[s]uch consent must specifically state that participation in all
aspects of that claim by a . . . paralegal furnishing written authorization from the attorney of record is authorized." Id.
Incongruously, the Secretary stated at oral argument that an accredited attorney could conceivably obtain records from
the Veterans Benefits Administration's automated claims records systems, and then provide those records to his or her
support staff. See Oral Argument at 52:40-53:40, Chisholm v. McDonald, U.S. Vet. App. No. 15-1594 (oral argument
held Mar. 2, 2016), http://www.uscourts.cavc.gov/oral_arguments_audio.php.
decision on [Mr. Chisholm's] request for access by his paralegals, such that he may pursue an
appeal," if his request is denied; but he admits that he does not know who within VA would issue
such a decision. Id.
Before addressing the relief requested in the petition, the Court must satisfy itself that it
possesses jurisdiction to act in this case. As an initial matter, the Court notes that, "unless Congress
explicitly prohibits it, there is a strong presumption in favor of judicial review." Freeman v.
Shinseki, 24 Vet. App. 404, 415 (2011). The rationale is clear, particularly in the context of veterans
benefits cases:
"No matter how dedicated and how competent administrators may be, the possibility
of error is always present, especially in nonadversary proceedings. For that reason
the Court normally assumes that Congress intended agency action to be subject to
judicial review unless the contrary intent is expressed in clear and unambiguous
language."
Id. at 414-15 (quoting Park 'N Fly, v. Dollar Park and Fly, Inc., 469 U.S. 189, 212-13 (1985)
(Stephens, J., dissenting)).
Here, Congress has not limited the Court's jurisdiction. Rather, the Court has jurisdiction
over decisions of the Board of Veterans' Appeals (Board), 38 U.S.C. § 7252, and the Board has
jurisdiction to review "decisions by the Secretary under a law that affects the provision of benefits,"
see 38 U.S.C. §§ 511, 7104(a). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit)
has determined that section 5904 is a law that affects the provision of benefits. See Bates v.
Nicholson, 398 F.3d 1355, 1362 (Fed. Cir. 2005). The action of authorizing or denying access to
electronic records for counsel seeking benefits on behalf of clients, and for staff assisting such
counsel, is taken pursuant to regulation 38 C.F.R. § 14.629 that was promulgated pursuant to 38
U.S.C. §§ 501(a) and 5904. Thus, the denial of access by the Secretary would be subject to review
by the Board, and, consequently, the refusal to issue a Statement of the Case (SOC) would be
grounds for issuing a writ in aid of our jurisdiction. See 28 U.S.C. § 1651(a); 38 U.S.C. §§ 7252,
7261(a); Cox v. West, 149 F.3d 1360, 1363-64 (Fed. Cir. 1998); see also 38 U.S.C. § 7105(d)(1)
(requiring the Secretary to prepare an SOC in response to a Notice of Disagreement (NOD) filed by
the claimant that is unresolved); Woznick v. Nicholson, 19 Vet. App. 198, 201-02 (2005) (directing
the Secretary to issue an SOC in response to the claimant's NOD). Consequently, the Court is
satisfied that it has jurisdiction in the matter and may address the merits of the petition.
The same is not true for a veterans service organization. W hen a claimant signs a VA Form 21-22, he or she
authorizes the Secretary to release the claimant's records to the appointed veterans service organization. Thus, there is
no requirement to name individual support staff within the veterans service organization because the claimant's consent
releases information to the organization as a whole. At oral argument, the Secretary stated that, under the current
regulatory framework, every employee of a veteran service organization, to include a hypothetical bar tender at a
Veterans of Foreign W ars' post, could have access to the Veterans Benefits Administration's automated claims records
system. See id. at 1:11:46-1:15:40.
2
The Court has the authority to issue extraordinary writs in aid of its prospective jurisdiction
pursuant to the All Writs Act, 28 U.S.C. § 1651(a). However, "[t]he remedy of mandamus is a
drastic one, to be invoked only in extraordinary situations." Kerr v. U.S. Dist. Court for N. Dist. of
Cal., 426 U.S. 394, 402 (1976); see also Youngman v. Peake, 22 Vet. App. 152, 154 (2008);
Constanza v. West, 12 Vet. App. 133, 134 (1999) (holding that a petitioner seeking a writ of
mandamus based on delay must demonstrate an extraordinary delay equivalent to a refusal to act).
Three conditions must be satisfied before the Court issues a writ of mandamus: (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 the issuance of the
writ is warranted. See Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380-81 (2004) (citing
Kerr, 426 U.S. at 403); see also Youngman, 22 Vet. App. at 154.
Although the VA Deputy General Counsel for legal policy has issued a statement outlining
the basis for withholding access, the parties have informed the Court that the Secretary has yet to
issue an official decision on the matter, and has apparently refused to do so. The denial of a
"decision[] by the Secretary under a law that affects the provision of benefits," see 38 U.S.C. § 511,
frustrates judicial review. See Cheney, supra. Accordingly, because decisions regarding access to
claims files are rendered pursuant to a law affecting the provision veterans' benefits, Mr. Chisholm
is entitled to a writ and the Secretary will be directed to issue the requested decision, which may be
appealed to the Board and ultimately the Court. See 38 U.S.C. §§ 511, 7104(a), 7252, 7261(a).
Because Mr. Chisholm is entitled to a writ as noted above, he fails at this time to demonstrate
that he lacks alternative means to attain the relief desired and, therefore, Mr. Chisholm is not entitled
to a writ directing the Secretary to grant his paralegal staff remote access to electronic records. See
Cheney, supra.3
On consideration of the foregoing, it is
ORDERED that the April 27, 2015, petition is GRANTED IN PART, and the Secretary is
directed to issue a decision on Mr. Chisholm's request to permit his support paralegal staff remote
access to claims records.
DATED: September 30, 2016 PER CURIAM.
3
The Court understands that the Secretary's decision may be affected by potential changes to 38 C.F.R.
§ 14.629, as reflected in a May 9, 2016, notification from the VA Office of the General Counsel to the Court that VA
had accepted Mr. Chisholm's October 28, 2015, letter "'as a petition for rulemaking under 5 U.S.C. § 553(e), to revise
38 C.F.R. § 14.629 in a manner that would allow the Secretary to provide electronic access to law firm support staff and
would remove the requirements for specific named consent to allow such disclosures.'" Secretary's May 9, 2016, Notice
(quoting M ay 9, 2016, letter to the petitioner from VA Deputy General Counsel for Legal Policy). Those changes,
however, will not relieve the Secretary of his obligation to provide a decision on Mr. Chisholm's request, whether under
the current rules or subsequently amended rules.
3