Charles J. Love, Jr. v. Denis McDonough

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 21-1323
CHARLES J. LOVE, JR., PETITIONER,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, RESPONDENT.
Before MEREDITH, FALVEY, and LAURER, Judges.
ORDER
On March 2, 2021, Army veteran Charles J. Love, Jr., through counsel, petitioned the Court
for extraordinary relief in the nature of a writ of mandamus. Mr. Love, whose 100% rating for
prostate cancer was discontinued and replaced with a new 20% rating for prostate cancer residuals,
argues that the Secretary may not implement that discontinuance until all appeals have been
exhausted. He asks the Court to order the Secretary "to cease unlawfully withholding disability
compensation" and "to pay him all amounts due consistent with [his] pre-reduction rating
evaluation until his challenge to the reduction has run its course." Petition (Pet.) at 1. Because
38 U.S.C. § 7252(a) provides our sole source of jurisdiction and the petitioner has not shown that
a writ would be in aid of that jurisdiction, we will dismiss the petition for a writ of mandamus.
I. BACKGROUND
Mr. Love served on active duty from January 1968 to March 1971. Pet., Exhibit (Ex.) 1 at
Appendix (App.) 2. He is service connected for prostate cancer and was rated 100% disabled. Pet.,
Ex. 1 at App. 4, Ex. 5 at App. 24; see 38 C.F.R. § 4.115b, Diagnostic Code (DC) 7528 (2021). In
February 2019, the VA regional office (RO) proposed to "reduce" Mr. Love's evaluation for
prostate cancer, status post radical prostatectomy, from 100% to 20%, and to discontinue special
monthly compensation (SMC) based on the housebound criteria. 1 Pet., Ex. 1 at App. 2-5. On
1
The note accompanying DC 7528 provides that, 6 months after treatment for prostate cancer, VA must
provide an examination and any change in the 100% rating must be evaluated "subject to the provisions of § 3.105(e)
of this chapter." § 4.115b. Section 3.105(e) states that when "a reduction or discontinuance of compensation
payments" is considered, the beneficiary
will be given 60 days for the presentation of additional evidence to show that compensation
payments should be continued at their present level . . . . [and,] if additional evidence is not received
within that period, final rating action will be taken and the award will be reduced or discontinued
effective the last day of the month in which a 60–day period from the date of notice to the beneficiary
of the final rating action expires.
38 C.F.R. § 3.105(e) (2021). This Court's recent decision in Foster v. McDonough characterizes the change in ratings
under DC 7528 not as a "rating reduction" but as a "discontinuance" of the 100% prostate cancer rating and a grant of
a prostate cancer residual rating. 34 Vet.App. 338, 345 (2021). Even so, the relevant law here does not distinguish
between a "reduction" or a "discontinuance." See, e.g., § 3.105(e) ("[A] rating proposing the reduction or
February 13, 2019, VA sent a letter notifying Mr. Love of the proposed change in rating that would
reduce his monthly payments from $3,530.47 to $3,165.70. Secretary's (Sec'y's) Response (Resp.),
Attachment (Attach.) A at 1-3. He was informed that he had 60 days to submit additional evidence
and 30 days to seek a hearing to contest the change. Id. at 2; see § 3.105(e), (i). On April 3, 2019,
Mr. Love challenged the proposed change, arguing that VA had not complied with 38 C.F.R.
§ 3.344(a). Pet., Ex. 2 at App. 7-10.
In September 2019, the RO issued a decision that discontinued the 100% prostate cancer
rating and SMC, and granted a 20% rating for prostate cancer residuals, effective December 1,
2019. Pet., Ex. 3 at App. 12-15. In October 2019, VA sent Mr. Love a letter notifying him of the
RO's decision. Sec'y's Resp., Attach. B. In December 2019, Mr. Love filed a Notice of
Disagreement and requested direct review. Pet., Ex. 5 at App. 22-31. In December 2020, the Board
of Veterans' Appeals decided that the discontinuance of the 100% rating and SMC at the
housebound rate, effective December 1, 2019, was proper. Pet., Ex. 6 at App. 37-50. Mr. Love
appealed to this Court in February 2021, and his appeal is pending as Love v. McDonough, U.S.
Vet. App. No. 21-1265 (Notice of Appeal filed Feb. 26, 2021).
On March 2, 2021, Mr. Love petitioned for extraordinary relief, arguing that VA may not
decrease his payments until his appeals are exhausted and that thus the Secretary is unlawfully
withholding payment in the pre-discontinuance amount. Pet. at 1-2. On October 22, 2021, the
Court heard oral arguments, and the parties later submitted supplemental briefing.
II. ARGUMENTS
In his petition for a writ of mandamus, Mr. Love asks this Court to find that the Secretary's
reduction in benefits was unlawfully premature and order the Secretary to resume payment in the
pre-discontinuance amount until his appeals are exhausted. Pet. at 2. He advances three grounds
for this Court to exercise its authority to grant extraordinary relief. First, he argues that the
Secretary's action (refusing to continue payment in the pre-discontinuance amount) has precluded
a future appeal of any potential overpayment dispute, thereby thwarting this Court's prospective
jurisdiction under 38 U.S.C. § 7252(a) and warranting a writ in aid of our jurisdiction under the
All Writs Act (AWA). Pet. at 11, 14; see 28 U.S.C. § 1651(a). Second, he argues that, having
"opened the jurisdictional door" with the AWA, 38 U.S.C. § 7261(a)(2) authorizes this Court to
"compel action of the Secretary unlawfully withheld." Pet. at 12 & n.1; Petitioner's (Pet'r's)
Supplemental (Suppl.) Resp. at 8. Third, he argues that this Court has jurisdiction and may issue a
writ "in aid of Federal Circuit jurisdiction" based on section 7252(c). Pet. at 3-11; Pet'r's Reply at
2-7.
The Secretary responds that Mr. Love is not entitled to a writ of mandamus because the
ordinary appeals process provides him with adequate alternative means to obtain his requested
relief. Sec'y's Resp. at 11-17. He argues that the Secretary's action to implement a discontinuance
is either a ministerial act that flows from that discontinuance decision, and thus not a separate
decision under 38 U.S.C. § 511, Sec'y's Suppl. Resp. at 2-3, or a separate question that falls under
discontinuance will be prepared.") (emphasis added). Although the parties refer to "reduction" and "discontinuance"
interchangeably, we will use "discontinuance" to describe the VA action.
2
a law that affects the provision of benefits such that Mr. Love would be entitled to a decision on
the matter if he had appealed the effective date of the discontinuance, id. at 3-5. In either case, the
Secretary maintains that issuance of a writ is unwarranted because Mr. Love has launched no action
before the Agency to challenge the implementation date nor has he requested an appealable
decision. Id. at 5-7. The Secretary also argues that section 7252(c) is not an independent source of
jurisdiction for the Court and that this matter falls outside our only statutory source of jurisdiction
in section 7252(a). Sec'y's Resp. at 4-11.
III. ANALYSIS
For the reasons below, we reject Mr. Love's arguments and find that extraordinary relief
would not be in aid of our jurisdiction.
A. The Court's Jurisdiction & AWA Authority
This Court is a statutory creation, 38 U.S.C. § 7251, and thus we can have no jurisdiction
beyond what Congress has conferred by statute, Skaar v. Wilkie, 32 Vet.App. 156, 180 (2019) (en
banc order); see Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988) ("'Courts
created by statute can have no jurisdiction but such as the statute confers.'" (quoting Sheldon v.
Sill, 49 U.S. 441, 449 (1850))). If a matter does not fall within our statutory jurisdiction, then we
cannot address that matter.
This Court has only one source of jurisdiction: 38 U.S.C. § 7252(a). Skaar, 32 Vet.App. at
180. That provision grants us the "exclusive jurisdiction to review decisions of the Board of
Veterans' Appeals." § 7252(a). Thus, "a final Board decision operates as the jurisdictional 'trigger'
that gives us the authority to hear a particular appeal." Skaar, 32 Vet.App. at 180; see Ledford v.
West, 136 F.3d 776, 779 (Fed. Cir. 1998).
This matter is not before the Court on appeal from a final Board decision, and Mr. Love
does not argue that it is. Thus, we have no basis to act according to our express statutory grant of
jurisdiction. But under the AWA, we can act, even with no final Board decision, when it is in aid
of our jurisdiction.
The AWA provides that "all courts established by Act of Congress may issue all writs
necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and
principles of law." 28 U.S.C. § 1651(a); Monk v. Shulkin, 855 F.3d 1312, 1318 (Fed. Cir. 2017)
("The [AWA] unquestionably applies in the Veterans Court."); Gardner-Dickson v. Wilkie,
33 Vet.App. 50, 54 (2020) (noting that the AWA gives this Court "the authority to hear petitions
and issue writs in aid of our jurisdiction"), aff'd sub nom. Gardner-Dickson v. McDonough,
No. 2021-1462, 2021 WL 5144367 (Fed. Cir. Nov. 5, 2021) (per curiam judgment). That includes
the power of this Court to issue a writ of mandamus, Cox v. West, 149 F.3d 1360, 1363 (Fed. Cir.
1998), including in aid of our prospective jurisdiction, where "an alleged refusal to act would
forever frustrate the ability of [this Court] to exercise its appellate jurisdiction," Erspamer v.
Derwinski, 1 Vet.App. 3, 8 (1990); see Gardner-Dickson, 33 Vet.App. at 54-55; see also Roche v.
Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943) (noting that the "function of mandamus in aid of
appellate jurisdiction is to remove obstacles to appeal").
3
But a court cannot "assert jurisdiction on the basis of hypothetical scenarios" and
prospective jurisdiction cannot depend on a "speculative chain of events." Moms Against Mercury
v. Food & Drug Admin., 483 F.3d 824, 827 (D.C. Cir. 2007); In re Tennant, 359 F.3d 523, 529
(D.C. Cir. 2004) (establishing that, where no action has been taken that puts a matter on the path
to a potential appeal, a future appeal remains hypothetical and so does not invoke a court's
prospective jurisdiction); see Wolfe v. McDonough, 28 F.4th 1348, 1359 (Fed. Cir. 2022) (applying
the standard from In re Tennant to a case appealed from this Court).
Thus, the threshold question for this Court is whether it has authority under the AWA to
grant the relief Mr. Love requests. See Erspamer, 1 Vet.App. at 6. As the party invoking the Court's
power, Mr. Love must show that we may exercise that power here. See McNutt v. Gen. Motors
Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936); Gardner-Dickson, 33 Vet.App. at 55 ("The
AWA 'permits federal courts to fill gaps in their judicial power where those gaps would thwart the
otherwise proper exercise of their jurisdiction.'" (quoting Monk v. Shulkin, 855 F.3d 1312, 1318
(Fed. Cir. 2017))). And, "because the AWA 'is not an independent basis of jurisdiction, . . . the
petitioner must initially show that the action sought to be corrected by mandamus is within this
court's statutorily defined subject matter jurisdiction.'" Gardner-Dickson, 33 Vet.App. at 55
(quoting Baker Perkins, Inc. v. Werner & Pfleiderer Corp., 710 F.2d 1561, 1565 (Fed. Cir.
1983)); see Pennsylvania Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985) (noting
that the AWA is a "residual source of authority").
B. The Writ Sought Is Not in Aid of Our Jurisdiction
1. Prospective Jurisdiction Through an Overpayment
Mr. Love argues that this Court has authority under the AWA to compel the Secretary to
restore payments to their prior level. Pet. at 11. He argues that the Secretary, by implementing the
rating discontinuance when he did, has precluded even "the possibility of an overpayment ever
being created in connection with the rating reduction[] [t]hat, in turn, forecloses Mr. Love's ability
to appeal any denial of overpayment relief that he seeks." Id. Mr. Love asserts that if an
overpayment were created and the Secretary sought to collect it, then he would seek this
overpayment relief. Id. He asks this Court to issue a writ under the AWA in aid of our prospective
jurisdiction over some potential future appeal of overpayment proceedings. Id. at 11-12. Mr. Love's
argument hinges on his assertion that the Secretary must make payments that could become
overpayments. See Pet. at 11-12, 14; Pet'r's Suppl. Resp. at 7-8. Thus, he argues, the way to
preserve this Court's jurisdiction is to order the Secretary to make payments in a particular amount,
which in turn could cause an overpayment. Pet. at 2, 11.
As the party seeking a writ of mandamus, Mr. Love bears the burden of showing that we
have the authority to issue a writ in his case. See Gardner-Dickson, 33 Vet.App. at 55 ("The burden
of showing entitlement to a writ of mandamus rests with the petitioner."). We do not find that Mr.
Love has shown that a writ would be in aid of our jurisdiction. See id. at 54-55. This is because he
has not shown, by the argument presented here, that he is entitled to an overpayment. And if he is
not entitled to an overpayment, he cannot show that preclusion of an overpayment would frustrate
the future exercise of this Court's jurisdiction. See Erspamer, 1 Vet.App. at 8.
4
Should there be an overpayment of benefits to a claimant, the Secretary has a statutory duty
to recoup the amount overpaid. 38 U.S.C. §§ 5314(a), 5316(a)(1). But a claimant may seek a
waiver by establishing "that recovery [of the overpayment] would be against equity and good
conscience." 38 U.S.C. § 5302(a). According to Mr. Love, this shows that "Congress has
anticipated that, for a variety of reasons, there will be times when the Secretary must create an
overpayment of benefits." Pet. at 14 (emphasis added). He argues that the Secretary, by acting to
prevent an overpayment "foreclose[d] [his] ability to appeal any denial of overpayment relief that
he seeks," which he could do as of right if there was a dispute over overpayments. Id. at 11. He
argues that in this way the burden of loss rests on VA, and not on the veteran, who would otherwise
be out the money unless he wins his appeal and the discontinuance is overturned. Id. at 18-20;
Pet'r's Suppl. Resp. at 7-8.
The Secretary argues that Mr. Love's interpretation is incorrect and that nothing requires
the creation of overpayments. Sec'y's Resp. at 15-16. He notes that overpayment relief is never a
matter of right but granted only if warranted by "'equity and good conscience.'" Id. (quoting
section 5302(a)). The Secretary argues that continuing payments in the pre-discontinuance amount
in hopes of collecting the difference later would force VA to pay out money to which Mr. Love is
no longer entitled, and thus would make VA a poor steward of taxpayers' money. Id.Whether Congress has guaranteed recipients of VA benefits the right to an overpayment is
a matter of statutory interpretation, and so we begin with the text of the statute. McGee v. Peake,
511 F.3d 1352, 1356 (Fed. Cir. 2008). "The statute's plain meaning is derived from its text and its
structure." Id.; see Gardner v. Derwinski, 1 Vet.App. 584, 586 (1991) ("Determining a statute's
plain meaning requires examining the specific language at issue and the overall structure of the
statute."), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, 513 U.S. 115(1994). The "plain meaning must be given effect unless a 'literal application of [the] statute will
produce a result demonstrably at odds with the intention of its drafters.'" Gardner, 1 Vet.App. at
586-87 (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)); see Roper v.
Nicholson, 20 Vet.App. 173, 180 (2006), aff'd, 240 F. App'x 422 (Fed. Cir. 2007).
Here, we conclude that the petitioner has not shown that the plain meaning of the statutes
he cites establishes a right to an overpayment. In that regard, although the statutes (subject to
possible waiver) explicitly require the Secretary to recoup overpayments, see §§ 5314(a) ("the
Secretary shall . . . deduct the amount of the indebtedness"), 5316(a)(1) ("[t]he Secretary shall take
appropriate steps to authorize" suits "to recover any indebtedness"), they do not explicitly require
the Secretary to create overpayments. And, although a payee may seek waiver of overpayment
recovery and the Secretary may grant a waiver if the recovery is against "equity and good
conscience," § 5302(a), that provision does not speak to whether an overpayment should exist in
the first place. Thus, the plain text of the statutes does not establish a "right" to an overpayment.
Next, the petitioner has not explained how his assertion that Congress established a right
to an overpayment aligns with the statutory scheme and the general purposes of chapter 53. For
example, while the purpose of chapter 11 is to compensate disabled veterans under certain
circumstances and establish the amount of that compensation, and though chapter 51, in part, sets
forth the effective dates for the award of compensation, the start of payments, and the effective
dates for reductions and discontinuances, see, e.g., 38 U.S.C. §§ 1110, 1114, 5110, 5111, 5112,
5
the specific provisions in chapter 53 in the main appear to focus on controls to avoid waste, fraud,
and abuse of government funds, see, e.g., §§ 5301 (Nonassignability and exempt status of
benefits); 5302 (allowing waiver of recovery only when it would be against "equity and good
conscience"); 5303 (certain bars to benefits); 5311, 5313, 5313A, and 5313B (limiting or
prohibiting payment under certain circumstances); 5314-5316 (authorizing collection of debts,
including interest and associated administrative costs); and 5317-5318 (authorizing the Secretary
to obtain income information and to terminate, deny, suspend, or reduce any benefit under certain
circumstances). Without a more developed argument, the Court is not persuaded by Mr. Love's
construction of sections 5302, 5314, and 5316 as requiring VA to purposely create an overpayment
so that a recipient of VA benefits could potentially benefit from overpayment-related protections.
Likewise, the Secretary's regulation construing the statutory provisions does not explicitly
require the Secretary to create overpayments.2 Like the statute, the regulation prohibits collection
of an overpayment if that would be against "equity and good conscience." 38 C.F.R. § 1.962(2021); compare § 5302. But in the same regulation, the Secretary defines "overpayment" as "those
benefit payments made to a designated living payee or beneficiary in excess of the amount due or
to which such payee or beneficiary is entitled." 38 C.F.R. § 1.962. Mr. Love emphasizes the past-
tense nature of the word "made" in the regulation, implying that overpayments can be made
routinely. Pet. at 15. But the past-tense word "made" suggests a truism: if no payment has been
made, then there can be no overpayment. The regulation does not speak in a prescriptive, future
tense, e.g., "shall make" or "must make." Given that the regulation defines an overpayment as an
amount that exceeds what a recipient is entitled to, this would suggest that overpayments are not
meant to routinely happen.
Mr. Love essentially argues that, by creating procedures for the Secretary to collect
overpayments and creating procedures by which veterans may seek waiver of overpayments,
Congress intended that the Secretary at times must create overpayments just so that veterans would
have the chance to seek overpayment waivers. Pet. at 14. But the petitioner has provided no support
for his suggestion that the mere existence of these procedures mandates that they be made available
in every situation. And, as indicated above, the plain text of the statutes does not command that
the Secretary make payments in amounts that preserve the possibility of overpayments. Absent
such a command and any developed argument that the overall structure of title 38 contemplates
such a right, we are not persuaded that the petitioner has shown that the Secretary barred a possible
overpayment, foreclosing Mr. Love's ability to appeal any potential denial of overpayment relief. 3
Thus, we cannot say that the Secretary frustrates this Court's future jurisdiction when he
precludes the possibility of overpayment. If there is an overpayment and the Secretary moves to
2
To be clear, the Court is not suggesting that VA by regulation could create an entitlement to payments that
are not authorized by Congress.
3
Mr. Love also argues that the possible preclusion of a future overpayment violates fair process. Pet. at
19-20. But his argument regarding fair process rests on the same premise as his other arguments: that the existence of
statutory overpayment protections means they must be made available to him. Id. at 20 ("[T]he Secretary's unilateral,
unwanted withholding leaves Mr. Love unable to seek a waiver or deferral of overpayment . . . . [T]he Secretary's
withholding to avoid a possible overpayment unfairly leaves Mr. Love bereft of [overpayment protections.]"). But Mr.
Love has failed to establish that his premise, that the law entitles him to an overpayment, is correct, and so we find it
unnecessary to address his fair process arguments based on that same premise.
6
collect it, then of course the waiver process in section 5302 would be available to a veteran. But
because Mr. Love has not established an advance guarantee that there will be an overpayment,
then whether there would ever be a dispute over overpayment relief that could come before this
Court remains purely hypothetical. A hypothetical overpayment dispute would not come within
our statutorily defined jurisdiction. See Moms Against Mercury, 483 F.3d at 827; In re Tennant,
359 F.3d at 529 (finding it inappropriate for a court to use its AWA "power solely on the basis that
events might lead to a filing before an agency or lower court, which might lead to an appeal to this
court"); see also Wolfe, 28 F.4th at 1359. Therefore, we conclude that granting Mr. Love's petition
would not be "in aid of" our jurisdiction and permissible under the AWA.
2. Other Grounds for Exercise of Our AWA Authority
The AWA provides us with a "broad and flexible tool" that we may exercise when
necessary to protect our jurisdiction. Gardner-Dickson, 33 Vet.App. at 57. Thus, if there are any
other obstacles to our jurisdiction, we could act to remove them. See Roche, 319 U.S. at 26.
Mr. Love argues that he cannot obtain judicial review of the issue at hand (the propriety of VA's
payment of compensation at the post-discontinuance rate before he has exhausted his appellate
rights) except by this petition because the payment of compensation is an action rather than a
"decision" within the meaning of 38 U.S.C. § 511(a). Pet'r's Reply at 6; Pet'r's Suppl. Response at
2-5. But the parties agree, and we accept, that the issue Mr. Love raises about the implementation
date for reduced payments can be presented to the Secretary and thus be put on the path to potential
appeal to this Court. See Pet'r's Suppl. Resp. at 6-7; Sec'y's Suppl. Resp. at 3-5. If that path were
blocked, our jurisdiction would need aid, and a writ could be the remedy to clear the path. See
§ 1651. But that would depend on the petitioner showing that the path was blocked, and we find
that he has not done so. Thus, we find no other grounds to exercise our AWA authority.
As noted, this Court's authority under the AWA must be in aid of its jurisdiction; it cannot
expand that jurisdiction. Gardner-Dickson, 33 Vet.App. at 55-56; see Wolfe v. Wilkie, 32 Vet.App.
1, 42 (2019) (Falvey, J., dissenting). And our jurisdiction is limited to review of final Board
decisions. Gardner-Dickson, 33 Vet.App. at 56; see § 7252(a). Thus, our authority to issue a writ
under the AWA must help remove obstacles to the ordinary process for review of veterans benefits
decisions. Gardner-Dickson, 33 Vet.App. at 55-56; see Roche, 319 U.S. at 26. First in that process
is a decision of the Secretary as meant in section 511(a).
Section 511 provides: "The 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," and that such decisions may be subject to review as provided in chapter 72 of title 38,
that is, review by the Board and this Court. § 511(a), (b)(4); see §§ 7104(a), 7252(a).
Mr. Love argues that the Secretary's action—paying Mr. Love at the post-discontinuance
rate—is not a "decision" under section 511(a), and thus he has no avenue to challenge the
Secretary's action except by an extraordinary writ. Pet. at 16; Pet'r's Suppl. Resp. at 1, 2-6. The
Secretary agrees that the action here is not a "decision" under the meaning of section 511. Sec'y's
Suppl. Resp. at 2-3. Thus, the parties understand the Secretary's action to be a "ministerial act" to
7
give effect to the Secretary's discontinuance decision. 4 Pet'r's Suppl. Resp. at 5; Sec'y's Suppl.
Resp. at 2.
The parties agree, however, that this ministerial act involves a question under a law that
affects the provision of benefits. Pet'r's Suppl. Resp. at 6-8; Sec'y's Suppl. Resp. at 3-5; see Bates
v. Nicholson, 398 F.3d 1355, 1359 (Fed. Cir. 2005) ("The ultimate question before us is whether
this case arises 'under a law that affects the provision of benefits.'" (quoting section 511(a)));
accord Rosinski v. Shulkin, 29 Vet.App. 183, 188 (2018) (per curiam order).
But they disagree as to which precise statutory enactment that question arises under. Pet'r's
Suppl. Resp. at 6; Sec'y's Suppl. Resp. at 3-4. Mr. Love points to 38 U.S.C. §§ 1110 and 1114,
which establish that, once the Secretary grants service connection for a disability and assigns a
rating, the claimant is entitled to payment in the amount set out for that rating; Mr. Love
emphasizes the monthly nature of the payments. Pet'r's Suppl. Resp. at 6-7. He also refers to
38 U.S.C. § 5302(a), which provides for a waiver of overpayments in some circumstances,
contending that the Secretary's implementation of the discontinuance before he exhausts his appeal
will forever bar his ability to seek a waiver. Id. at 6. The Secretary points to 38 U.S.C. § 5112(b)(6),
the ultimate statutory authority for VA to discontinue a rating, as happened here, and he asserts
that the proper implementation date of the discontinuance therefore arises under that statutory
provision. Sec'y's Suppl. Resp. at 3-5.
Though they disagree on the statutory authority, the parties agree that the proper date to
implement the discontinuance is a question under a law that affects the provision of benefits. Pet'r's
Suppl. Resp. at 6-8; Sec'y's Suppl. Resp. at 3-5; see Bates, 398 F.3d at 1361; see also Rosinski,
29 Vet.App. at 188. The parties thus agree that the proper implementation date could be the subject
of a decision under section 511(a), and they supply their preferred outcomes of that decision.
Mr. Love argues that he is entitled to a decision by VA on the proper implementation date for the
discontinuance of his 100% rating, but argues that this is beside the point; he argues that he has a
right to be paid in the pre-discontinuance amount pending his appeals, that VA's failure to pay him
at that rate is harmful because it deprives him of the alleged overpayment-related rights discussed
above, and that, as a result, the ordinary appellate process is not adequate to provide the relief
sought by this petition. Pet'r's Suppl. Resp. at 7-8. 5 The Secretary argues that the "implementation
date" of a VA decision is synonymous with its "effective date," and nothing precludes Mr. Love
from challenging the effective date of his discontinuance through the ordinary appellate process,
but notes that he has not yet done so. Sec'y's Suppl. Resp. at 3-5.
4
In the parties' view, the "decision" under section 511(a) was the September 2019 RO decision to discontinue
the 100% rating for prostate cancer and assign a 20% rating for prostate cancer residuals, and to discontinue SMC,
effective December 1, 2019. Pet., Ex. 3 at App. 12-15. That decision is not at issue but is the subject of an appeal
pending under Docket No. 21-1265.
5
Mr. Love argues that the Secretary is acting unlawfully because the Secretary is no longer paying him the
amount specified for a 100% rating under section 1114. Pet. at 12-13; Pet'r's Suppl. Resp. at 7. The Court notes that,
under the September 2019 RO decision, his prostate cancer residuals are rated as 20% disabling, effective December 1,
2019. Pet., Ex. 3 at App. 12-13. Mr. Love argues that the September 2019 RO decision is not final—and thus VA
cannot implement it—until all of his appeals are exhausted. Pet. at 17-18; Pet'r's Suppl. Resp. at 7. Because this Court
is dismissing this petition, we will not address the substance of that issue.
8
The Court finds it unnecessary to choose between sections 1110 and 1114 on the one hand,
and section 5112(b)(6) on the other hand, because they all lead to the same conclusion: The proper
implementation date of the discontinuance decision is a question under a law affecting the
provision of benefits. See Pet'r's Suppl. Resp. at 6-8; Sec'y's Suppl. Resp. at 3-5. Although the
action of paying a lower amount of benefits is not a "decision" that may be appealed, assignment
of a date when that action will take place is an agency decision that could be appealed to the Board
and then to this Court. See Bates, 398 F.3d at 1361; see also Chisholm v. McDonald, 28 Vet.App.
240, 243 (2016) (per curiam order) (finding that "decisions regarding access to claims files[,
though not a direct decision on benefits,] are rendered pursuant to a law affecting the provision
[of] veterans' benefits" and thus amenable to appeal to the Board and this Court).
By the same token, the Court finds it unnecessary under the circumstances to decide
whether Mr. Love or the Secretary presents the correct understanding of "implementation" and
"effective date." The parties' arguments in that regard essentially pertain to whether Mr. Love has
the right to an overpayment, which we rejected above. Again, it is sufficient that the parties
concede, and we so conclude, that the proper implementation date of the discontinuance decision
generally is a matter that can be resolved by turning to the agency of original jurisdiction (AOJ)
and thereby obtaining a decision under section 511(a). But because it is undisputed at this point
that Mr. Love has initiated no proceedings at the AOJ that may implicate our prospective
jurisdiction, see §§ 7104(a), 7252(a), mandamus would be improper, see In re Tennant, 359 F.3d
at 529; see also Wolfe, 28 F.4th at 1359 (noting that "mandamus does not aid prospective
jurisdiction where a party has not initiated any proceeding whatsoever").
Should Mr. Love seek a section 511(a) decision that could be appealed to the Board and
then this Court, see §§ 7104(a), 7252(a), his ability to obtain a decision of the Secretary would
involve our prospective jurisdiction. See In re Tennant, 359 F.3d at 529; see also Wolfe, 28 F.4th
at 1359. But he has not requested that the Court compel VA to issue a section 511(a) decision
regarding the proper date to implement the discontinuance, i.e., whether payments must continue
in the pre-discontinuance amount, pending his appeal on the merits of the discontinuance. And, by
extension, he has not shown that any action of the Secretary prevented him from seeking that
decision. Instead, Mr. Love apparently wishes to circumvent the Agency process, requesting that
the Court decide whether he is entitled to payments at the pre-discontinuance amount until he
exhausts his appeals. But see Wolfe, 28 F.4th at 1357-58 ("[M]andamus . . . could only compel
action on the appeal[;] [i]t could not dictate a particular outcome."). The ordinary appellate process
provides a path to this Court, and if Mr. Love has not shown that VA has blocked his pursuit of a
decision on that path, then issuing a writ would not be in aid of our jurisdiction, and so would be
outside our authority under the AWA. See Roche, 319 U.S. at 26; Gardner-Dickson, 33 Vet.App.
at 55-56; see also Wolfe, 32 Vet.App. at 42-43 (Falvey, J. dissenting). Thus, the Court cannot
exercise its authority under the AWA to assess whether a writ is warranted here.
C. 38 U.S.C. § 7261(a)(2): Authority to Compel Action of the Secretary Unlawfully Withheld
Mr. Love also argues that "the Court must act under [section] 7261(a)(2) even if the statute
that 'opens the jurisdictional door' here is the [AWA]." Pet. at 12 & n.1. Section 7261(a)(2)
provides that this Court shall "compel action of the Secretary unlawfully withheld or unreasonably
delayed." He argues that section 7261(a)(2) therefore requires this Court to issue a writ of
9
mandamus here to "compel an action of the Secretary unlawfully withheld," the "action" being
payments in the pre-discontinuance amount. Pet. at 12. He further argues that section 7261(a)(2)
"provides an ordinary-course basis to compel unlawfully withheld action." Pet. at 12 n.1. But he
argues that, once this Court's AWA authority has been properly invoked, this Court may exercise
"supplemental jurisdiction" akin to our chapter 72 authority, the scope of which is governed by
section 7261. Pet. at 12. He then analogizes this Court's scope of review under section 7261(a)(2)
to the scope of review afforded Article III courts under the Administrative Procedure Act (APA),
5 U.S.C. § 706(1), and argues that the Court must compel agency action unlawfully withheld,
without any discretion. Pet. at 12-13 & n.2. He goes so far as to say that this mandate of
section 7261(a)(2) negates the otherwise applicable standard that issuance of a writ of mandamus
is always a matter of the issuing court's discretion. Pet. at 13 n.2; Pet'r's Reply at 8; see Kerr v.
U.S. Dist. Court, 426 U.S. 394, 403 (1976) (noting that "issuance of the writ is in large part a
matter of discretion with the court to which the petition is addressed").
But as explained above, we find that the AWA's "jurisdictional door" is closed. That the
writ be "in aid of" our jurisdiction or our prospective jurisdiction is the sine qua non of AWA
authority. See § 1651(a); Wolfe, 28 F.4th at 1354; Gardner-Dickson, 33 Vet.App. at 54. Here, Mr.
Love has not demonstrated, either by showing a right to an overpayment or that he cannot obtain
a section 511(a) decision on the implementation issue, that this Court's jurisdiction is impeded. See
III.B, supra. Simply put, our jurisdiction is not in need of aid, and therefore we have no authority
under the AWA to issue a writ. Thus, there is no need to turn to section 7261 to determine our
scope of action because we do not have jurisdiction under the AWA to act. Likewise, although Mr.
Love argues that section 7261 relates to our "supplemental jurisdiction," Pet. at 12, there is nothing
here to supplement. Whatever section 7261 would require of us in other cases, it has no role to
play here.
Because we find that 38 U.S.C. § 7261 is inapplicable here, we need not address Mr. Love's
argument that our scope of action under that section is analogous to the APA, 5 U.S.C. § 706(1).
Likewise, we find no need to determine whether section 7261 affects the discretionary nature of
mandamus as laid out in Kerr.
D. Purported 38 U.S.C. § 7252(c) Jurisdiction
Mr. Love makes the novel argument that section 7252(c) is an independent grant of
jurisdiction empowering this Court to act in aid of the Federal Circuit's jurisdiction. 6 As the party
asserting jurisdiction, Mr. Love must show that this jurisdiction exists. See McNutt, 298 U.S. at
189. He fails.
When interpreting a statute, the Court must first look to its plain meaning. Gardner,
1 Vet.App. at 586-87. And "[i]t is a fundamental canon of statutory construction that the words of
a statute must be read in their context and with a view to their place in the overall statutory
6
Mr. Love's counsel, John Niles, appears to have made this argument in several cases before the Court. See,
e.g., Aumiller v. McDonough, U.S. Vet. App. No. 21-3565 (submitted to a panel Sept. 16, 2021); Furtick v.
McDonough, U.S. Vet. App. No. 20-4638 (Nov. 18, 2021, dismissed, mandate issued); Johnson v. Tran, No. 20-7918,
2021 WL 416449, at *5 (Vet. App. Feb. 8, 2021) (decided on other grounds). This is the first case to address the issue
on the merits.
10
scheme." Davis v. Mich. Dep't of Treasury, 489 U.S. 803, 809 (1989); see Hornick v. Shinseki,
24 Vet.App. 50, 51 (2010) ("The meaning of a statutory word or phrase cannot be determined in
isolation, but must be drawn from the context in which it is used.").
As noted, "[w]e have only one source of jurisdiction: 38 U.S.C. § 7252." Skaar,
32 Vet.App. at 180. The statute, which is titled "Jurisdiction; finality of decisions," reads:
(a) The Court of Appeals for Veterans Claims shall have exclusive jurisdiction to
review decisions of the Board of Veterans' Appeals. The Secretary may not seek
review of any such decision. The Court shall have power to affirm, modify, or
reverse a decision of the Board or to remand the matter, as appropriate.
(b) Review in the Court shall be on the record of proceedings before the Secretary
and the Board. The extent of the review shall be limited to the scope provided in
section 7261 of this title. The Court may not review the schedule of ratings for
disabilities adopted under section 1155 of this title or any action of the Secretary in
adopting or revising that schedule.
(c) Decisions by the Court are subject to review as provided in section 7292 of this
title.
§ 7252(a)-(c).
A plain reading of this section shows that it contains a singular grant of jurisdiction in
subsection (a), followed by limits on how and what we can review in subsection (b), with the
statutory scheme rounded out by subsection (c) providing that this Court's decisions are subject to
the Federal Circuit's appellate review as provided in section 7292. See 38 U.S.C. § 7292(a) ("After
a decision of the United States Court of Appeals for Veterans Claims is entered in a case, any party
to the case may obtain a review of the decision with respect to the validity of a decision of the
Court [of Appeals for Veterans Claims] . . . .").
Subsection (a) of section 7252 sets out our jurisdiction: "The Court of Appeals for Veterans
Claims shall have exclusive jurisdiction to review decisions of the Board of Veterans' Appeals."
Section 7292(c) has comparable language: "The United States Court of Appeals for the Federal
Circuit shall have exclusive jurisdiction to review [certain legal matters in resolving appeals of
decisions of the Court of Appeals for Veterans Claims]." Congress was explicit about jurisdiction
in section 7252(a) and section 7292, setting up independent sources of jurisdiction for two
different courts in relation to veterans' claims.
Yet Mr. Love would have us believe that Congress chose to be more cryptic in subsection
(c) of section 7252, which does not use the word "jurisdiction." But "[i]f Congress had intended
the court's jurisdiction to be broader than that conferred by [subsection] 7252[(a)], Congress would
have expressed that intention legislatively." Matter of Wick, 40 F.3d 367, 373 (Fed. Cir. 1994).
In support of his argument that section 7252(c) is a separate grant of jurisdiction, Mr. Love
argues that the language of section 7252(b), because it does not specify that it applies exclusively
11
to subsection (a), "applies to cases that are within this Court's jurisdiction on a basis other than
[section] 7252(a)." Pet. at 5 (emphasis added). His only support for this is the fact that subsection
(b) does not qualify the Court's review with the words "under subsection (a)." Id. But subsection
(b)'s placement and the overall structure of section 7252 does not require qualifying language to
understand its plain meaning. Subsection (b) limits the Court's jurisdiction, confining our review
to the record before the Secretary and the Board and to the scope provided in section 7261, and
forbidding review of the schedule of ratings for disabilities adopted by the Secretary. 38 U.S.C.
§ 7252(b). The Court's singular grant of jurisdiction is in subsection (a), giving this Court the
power to "review decisions of the Board of Veterans' Appeals." 38 U.S.C. § 7252(a). That is the
only "[r]eview in [this] Court," and thus the only "review" to which subsection (b) could apply.
To the extent that Mr. Love suggests that subsection (b) is itself a grant of jurisdiction, and
thus by analogy suggests that subsection (c) is too, that contravenes the established interpretation
that subsection (b) is not a grant of jurisdiction but limits the jurisdiction established in subsection
(a). See Larson v. McDonough, 10 F.4th 1325, 1327 (Fed. Cir. 2021) ("Section 7252 establishes
the exclusive jurisdiction of the Veterans Court to review decisions of the Board. However, the
Veterans Court [has the limits to its jurisdiction found in section] 7252(b)."); Ledford, 136 F.3d at
779 ("The statute that confers jurisdiction upon the Court of [Appeals for Veterans Claims is] . . .
38 U.S.C. § 7252(a). Thus, the court's jurisdiction is premised on and defined by the Board's
decision concerning the matter being appealed [per] [section] 7252(b)."). If subsection (b) is not a
grant of jurisdiction, that does not bode well for Mr. Love's argument that subsection (c) is a grant
of jurisdiction.
References to section 7252(c) as jurisdictional do exist—but referring to the Federal
Circuit's own jurisdiction, not this Court's jurisdiction. The Federal Circuit has noted that
section 7252(c) complements its own grant of jurisdiction in section 7292. See Stillwell v. Brown,
46 F.3d 1111, 1113 (Fed. Cir. 1995) ("The boundaries of this limited jurisdictional grant are set
out at 38 U.S.C. § 7292.") & id. at n.3 ("38 U.S.C. § 7252(c) provides that decisions by the Court
of [Appeals for Veterans Claims] 'are subject to review as provided in [section] 7292 . . . .'"). Even
courts outside the veterans appeals system refer to sections 7252(c) and 7292 in tandem as sources
of Federal Circuit jurisdiction, not that of this Court. See Bell v. Veterans Admin., 946 F. Supp.
479, 480 (N.D. Tex. 1996) (citing sections 7252(c) and 7292 for the proposition that the "United
States Court of Appeals for the Federal Circuit has exclusive jurisdiction to review decisions of
the Court of [Appeals for Veterans Claims]").
Mr. Love argues that such a construction of section 7252(c) would render it superfluous
next to section 7292, Pet. at 4-5 (citing Sharp v. United States, 580 F.3d 1234, 1238 (Fed. Cir.
2009) ("[Courts] must give effect, if possible, to every clause and word of a statute and should
avoid rendering any of the statutory text meaningless or as mere surplusage.") (quotations
omitted)), and reduce subsection (c) to a "statutory heading." Pet'r's Reply at 3.
But a proper construction of subsection (c) does not reduce it to "mere surplusage" or a
"statutory heading." Subsection (c) notes that our decisions are not necessarily final but subject to
12
Federal Circuit review; then, that court's jurisdiction is positively granted in section 7292. 7
§ 7252(c). The two provisions work in tandem, tying the statutory scheme together by laying out
that appeals come first to this Court and then to the Federal Circuit. See Davis, 489 U.S. at 809;
Hornick, 24 Vet.App. at 51.
Mr. Love argues that the legislative history of section 7252 supports construing its
provisions broadly to give as many opportunities for judicial review as possible to veterans. Pet.
at 6-8. We note that "'[o]nly the most extraordinary showing of contrary intentions from [the
legislative history] would justify a limitation on the "plain meaning" of the statutory language.'"
Talley v. Derwinski, 2 Vet.App. 282, 286 (1992) (second alteration in original) (quoting Garcia v.
United States, 469 U.S. 70, 75 (1984)). But here the petitioner has identified no conflict between
the plain meaning and the legislative history. The Senate at first did not envision a separate
veterans court, wanting Board decisions instead reviewed by the geographic Circuit Courts of
Appeal; the Senate's legislative history cannot support any grant of jurisdiction to this Court when
it did not even envision this Court's existence. See S. REP. NO. 100-418, at 17, 151 (1988). The
House of Representatives envisioned a veterans court with broad jurisdiction "to consider all
questions involving benefits under laws administered by the Veterans Administration [now
Department of Veterans Affairs]." H. R. REP. NO. 100-963, pt. I, at 4, 62 (1988). But even this
broad talk of "all questions involving benefits" still does not speak to whether this Court could
somehow act in aid of Federal Circuit jurisdiction. Moreover, neither the House nor the Senate's
proposals survived in the final version of the law. Ultimately, Congress created a separate veterans
court, but without so wide a jurisdiction; the final form of the bill reads the same as the statute
does today. Veterans' Judicial Review Act (VJRA), Pub. L. No. 100-687, § 301, 102 Stat. 4105,
4113-14 (1988) ("Decisions by the Court are subject to review as provided in [section] 4092 [now
section 7292] of this title."). Mr. Love has identified nothing in the legislative history that shows
that Congress intended for us to have jurisdiction "in aid of" another court's jurisdiction, and thus
the legislative history gives us no grounds to construe section 7252(c) as such a grant of
jurisdiction.
Mr. Love's remaining arguments in favor of a "section 7252(c) jurisdiction" also fail. He
argues that "'provisions for benefits to members of the Armed Services are to be construed in the
beneficiaries' favor.'" Pet. at 9 (quoting King v. St. Vincent’s Hosp., 502 U.S. 215, 220 n.9 (1991)).
He argues that it would be more favorable to claimants to interpret section 7252(c) to provide
another kind of judicial review for those claimants to pursue, and in this case to provide Mr. Love
a means to "review the withholding of payments at the pre-reduction level while Mr. Love
challenges the reduction." Id. As discussed above, see III.B.2, because the proper implementation
date is a section 511(a) matter, it may be challenged through the same process as the underlying
discontinuance decision. It must be remembered that the statutory scheme as it is already
understood is favorable to claimants because not only is review of VA decisions by a court
dedicated solely to veterans law available, but review of that review is available to the claimant.
See §§ 7252(c), 7292.
7
Indeed, section 7252's heading reads, "Jurisdiction; finality of decisions." 38 U.S.C. § 7252 (emphasis
added). Although statutory headings cannot contravene the statutory text, they do serve as a reference guide for the
statute's subject matter. Bhd. of R.R. Trainmen v. Balt. & Ohio R.R. Co., 331 U.S. 519, 528-29 (1947); see United
States v. Jac Natori Co., 108 F.3d 295, 299 (Fed. Cir. 1997).
13
Mr. Love also argues that a "'strong presumption favor[s] judicial review.'" Pet. at 9
(quoting Mach Mining, LLC v. EEOC, 575 U.S. 480, 489 (2015) (stating that there is "a strong
presumption favoring judicial review of administrative action" (quotations omitted)). Thus, he
argues that this presumption should be attached to section 7252(c). Pet. at 9-10. But we find that
the presumption of judicial review is inappropriate and unnecessary here. Refusing to apply the
presumption would not leave veterans without judicial review—there is an explicit provision for
judicial review (only of final Board decisions) in section 7252(a). This fact contrasts veterans law
with areas with no specific congressional authorization of judicial review of any kind. The case he
cites for the presumption of judicial review, Mach Mining, in fact readily demonstrates this
distinction. There, the Supreme Court dealt with a situation in which a statute required an agency,
the Equal Employment Opportunity Commission, to take certain action, but that requirement to
act was not explicitly subject to judicial review in the same statute. 575 U.S. at 486-88; see
42 U.S.C. § 2000e-5. There, without the presumption favoring judicial review, "the Commission's
compliance with the law would rest in the Commission's hands alone." 575 U.S. at 488. But here,
there is no need to resort to a presumption to establish judicial review of VA decisions—that is
explicitly provided for in section 7252(a). The situation here is unlike Mach Mining or any other
case in which judicial review of agency action is not explicitly provided for by statute; matters
here are not left in the agency's hands alone. And we need not rely on any presumption when
Congress has explicitly provided for when and how this Court will exercise judicial review of
agency action.
Mr. Love argues that judicial review must be presumed unless it is clear that Congress
intended to preclude it. Pet. at 9. Although that proposition is correct, it does not mean that
anything less than an explicit denial of judicial review in the statute will do. Limitations on judicial
review are not only determined by the express language of a statute, "but also from the structure
of the statutory scheme." Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984). Here, the
statutory scheme shows that Congress has provided for judicial review of VA action, but only in a
specific manner. First, judicial review can be done by this Court, but only of final Board decisions.
§ 7252(a). Then, the Federal Circuit can review decisions of this Court. § 7292. Those statutory
provisions show that this Court and the Federal Circuit possess separate, distinct grants of
jurisdiction. Absent from the statutory scheme is any provision by which this Court could
somehow act in defense of the Federal Circuit's jurisdiction rather than its own. But within that
scheme, the only statutory basis for judicial review by this Court is section 7252(a), in which
Congress commands that we "shall have exclusive jurisdiction to review" final Board decisions.
We cannot and will not add to our congressional marching orders.
Finally, Mr. Love argues that the fact that no prior cases decided by this Court have rested
on this "[section] 7252(c) jurisdiction" is because "at most[,] as to [section] 7252(c), . . . [prior]
claimants failed adequately to plead [section] 7252(c) jurisdiction." Pet'r's Reply at 5. But this is
not because prior claimants somehow missed raising this argument; it is because section 7252(c)
is not a source of jurisdiction for this Court independent of section 7252(a). Mr. Love is asking the
Court to create a new kind of jurisdiction not authorized by statute and in aid of a different court's
jurisdiction, no less. This is something we cannot do. See Gardner-Dickson, 33 Vet.App. at 56
("We may not craft a judicial expansion of section 7252 to circumvent binding precedent or the
statute itself.").
14
E. Summary
In sum, Mr. Love has not shown that the Secretary's preclusion of the possibility of
overpayment presents an obstacle to this Court's future jurisdiction, nor any other basis on which
we could issue a writ under the AWA in aid of our jurisdiction. Without authority under the AWA,
there is no need to turn to section 7261 to determine our scope of action. We also find that there is
no separate jurisdiction under section 7252(c) allowing the Court to act in aid of the Federal
Circuit's potential jurisdiction. There are thus no jurisdictional grounds for this Court to compel
the Secretary to restore payments to the pre-discontinuance amount pending completion of Mr.
Love's appeal.
IV. CONCLUSION
On consideration of the above, it is
ORDERED that Mr. Love's March 2, 2021, petition is DISMISSED.
DATED: June 23, 2022 PER CURIAM.
15