DocketNumber： 06-2762
Citation Numbers： 20 Vet. App. 552, 2007 U.S. Vet. App. LEXIS 2, 2007 WL 46727
Judges： Greene, Kasold, Hagel, Moorman, Lance, Davis, Schoelen
Filed Date： 1/9/2007
Status： Precedential
Modified Date： 11/16/2024
On September 28, 2006, Nicholas Ribau-do filed a petition for extraordinary relief in the nature of a writ of mandamus wherein he asserts that the Secretary of Veterans Affairs (Secretary), through the Chairman of the Board of Veterans’ Appeals (Board Chairman), “has disobeyed this Court’s decision in Haas v. Nicholson, 20 Vet.App. 257 (2006),” by issuing Board Chairman’s Memorandum 01-06-24 (Sept. 21, 2006), which unilaterally imposes a stay upon all cases affected by the Court’s decision in Haas. Petition (Pet.) at 1. Although the petitioner argues that Board Chairman’s Memorandum 01-06-24 violates Haas by unilaterally staying cases affected by Haas, as is reflected later in the petition, the petitioner is essentially contending that the unilateral stay violates this Court’s decision in Ramsey v. Nicholson, 20 Vet.App. 16 (2006). The Secretary filed an answer to the petition. On November 1, 2006, the petitioner filed a response to the Secretary’s answer. Because the head of an executive agency does not have the authority to nullify the legal effect of a judicial decision, and because the Secretary did just that by ordering the issuance of Board Chairman’s Memorandum 01-06-24 imposing a stay of indefinite duration without first seeking judicial imprimatur, the petition will be granted.
I. BACKGROUND/ARGUMENT
According to Mr. Ribaudo, the unilateral stay imposed by the Board Chairman is ultra vires and violates the Court’s decision in Ramsey, in which the Court held that “any unilateral imposition of a stay by the Board Chairman or Secretary as to the effect of any of this Court’s decisions is unlawful.” 20 Vet.App. at 39. Mr. Ribau-do requests that the Court grant the petition and (1) order the Secretary to rescind the stay of proceedings imposed by Board Chairman’s Memorandum 01-06-24, (2) order the Board to decide Haas-like cases forthwith, (3) act on Mr. Ribaudo’s motion to advance his case on the Board’s docket, and (4) decide his appeal consistent with Haas.
The Court in Ramsey stated clearly: “We hold now that the Secretary’s authority to stay cases at the Board does not include the unilateral authority to stay cases at the Board (or [regional office]) pending an appeal to the [U.S. Court of Appeals for the] Federal Circuit of a decision by this Court.” 20 Vet.App. at 37. Based on that holding, the Court went on to state “that any unilateral imposition of a stay by the Board Chairman or Secretary as to the effect of any of this Court’s decisions is unlawful.” Id. at 39. Petitioner argues that Board Chairman’s Memorandum 01-06-24 contravenes the holding in Ramsey. See Pet. at 6-8.
On October 12, 2006, the Court ordered the Secretary to answer the petition. Specifically, the Secretary was ordered to explain (1) why the relief requested in the petition should not be granted and (2) why,
The Secretary filed his answer on October 25, 2006. Therein, as in Ramsey, he relies on Tobler v. Derwinski, 2 Vet.App. 8 (1991), for the proposition that the Secretary and Board Chairman possess the authority to stay adjudications before the Agency pending the outcome of an appeal to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). Answer at 3-4. The Secretary goes on to recognize that the Court in Ramsey stated “that the Secretary’s authority to stay cases at the Board does not include the unilateral authority to stay cases at the Board (or [regional office]) pending an appeal to the Federal Circuit of a decision by this Court.” 20 Vet.App. at 37; see Answer at 4. He argues, however, that “such a statement was not the Court’s holding because it was not necessary to its order denying the writ.” Answer at 4. In other words, he argues that the statement in Ramsey is dicta, and, as such, is nonbinding and non-precedential. Id. at4-5.
Next, the Secretary argues that the Board Chairman “possesses certain inherent powers that are necessary to carry out the administrative and managerial functions of the Board and the appeals pending at the Board” and that “[t]hese powers must include the authority to stay pending cases when the efficient management of the docket reasonably requires.” Id. at 9. He asserts that “the duration of the stay would not be unreasonable, and would essentially be that necessary to pursue an appeal of Haas.” Id. at 10.
Finally, in response to the Court’s question regarding other instances in which the Secretary or Board Chairman has issued a stay applicable to a particular class of cases, the Secretary lists 12 other instances, between 1992 and 2005, in which the Board Chairman issued memoranda stay
On November 1, 2006, the petitioner filed a response to the Secretary’s answer. He does not address the Secretary’s argument that the statement in Ramsey is dicta. Instead, he asserts that the Secretary has shown “contempt for the Court” by refusing to comply with Ramsey. Response at 4. He further asserts that the Secretary’s behavior before this Court contrasts with the “appropriate Secretarial respect for a federal court” demonstrated by the Secretary toward the U.S. District Court for the Northern District of California in Nehmer v. VA, No.Civ. 86-6160, where the Secretary moved for a stay of that court’s December 1, 2005, order pending an appeal. Id. at 6.
We note with appreciation that The American Legion has filed briefs and argued as an amicus in this case.
II. ANALYSIS
A.Standard for Granting Extraordinary Relief
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. Ct. N. Dist. Cal., 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). Accordingly, three conditions must be met before this 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 the appeals process; (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. Ct. D.C., 542 U.S. 367, 380-81, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004). When delay is alleged as the basis for a petition, this Court has held that a clear and indisputable right to the writ does not exist unless the petitioner demonstrates that the alleged delay is so extraordinary, given the demands on and resources of the Secretary, that it is equivalent to an arbitrary refusal by the Secretary to act. See Costanza v. West, 12 Vet.App. 133, 134 (1999) (per curiam order).
B.Lack of Adequate Alternative Means to Attain the Desired Relief
Here, the action that the petitioner seeks to abrogate was instituted by the Secretary and Board Chairman themselves. As a consequence, an appeal to the Secretary or Board Chairman for relief would be a futile effort. The result of the Secretary and Board Chairman’s action is to prevent any appeal falling within the terms of Board Chairman’s Memorandum 01-06-24 (of which the petitioner is one) from reaching the Court because it precludes a Board decision from being made. We therefore find that the petitioner lacks adequate alternative means to attain the desired relief in this case.
C.Clear and Indisputable Right to the Writ
We consider today not the question of whether a stay of the application of the decision of this Court in Haas is justified, but rather by whose authority and through what procedure such a stay may be imposed. Whether the petitioner has demonstrated a clear and indisputable right to a writ turns on the answer to those important questions.
As a consequence, as of the date of issuance, an opinion of this Court is “to be followed by VA agencies of original jurisdiction, the Board ... and the Secretary in adjudicating and resolving claims.” Tobler, 2 Vet.App. at 14. Congress established this Court in order to provide a uniform judicial interpretation of the law regarding veterans benefits. Because this Court is a national court with exclusive jurisdiction over Board decisions, there is no legitimate argument that nonacquies-cence by the Secretary is necessary to maintain national uniformity in its administration of veterans benefits. See 38 U.S.C. § 7252; Godfrey v. Derwinski, 2 Vet.App. 352, 356 (1992) (“This Court has ‘exclusive jurisdiction to review decisions of the Board of Veterans’ Appeals’ ...” (quoting 38 U.S.C. § 7252(a))). The Secretary appears to acknowledge as much, and instead argues that he possesses the inherent authority to manage the Board’s docket, authority that includes his refusal to apply a binding decision of this Court while considering whether to appeal and during the pendency of an appeal of that decision. See Secretary’s Response to October 12, 2006, Court Order at 4 (“This is not an instance of nonacquiescence.”); see also Answer at 9-10. In support of that argument, he cites cases in which Federal courts have stayed the adjudication of cases in order to manage the litigation before them. Those cases are inapposite for at least three reasons.
First, the Board is part of an executive agency, it is not a federal court. Second, unlike the neutral role played by Federal courts in the resolution of matters before them, the Secretary is both the decision-maker at the agency level and the appellee in every appeal that comes before the Court. Third, 38 U.S.C. § 7107
In addition, the Secretary cites the decision of the U.S. Court of Appeals for the Second Circuit (Second Circuit) in Ithaca Coll. v. NLRB, 623 F.2d 224 (2nd Cir. 1980), for the proposition that the Board possesses inherent authority to refuse to apply a decision of this Court in order to manage its docket in the manner in which it has done so here. There, the Second Circuit, before holding that the NLRB “cannot ... choose to ignore [a court] decision as if it had no force or effect,” stated that “it would be reasonable for the Board to stay its proceedings in another case that arguably falls within the precedent of the first one.” Ithaca Coll., 623 F.2d at 228. Aside from the fact that we are not bound by decisions of the Second Circuit, there are three other reasons that that court’s statement does not govern the situation we now face. First, the Second Circuit’s apparent endorsement of unilateral stays by the NLRB was unquestionably dictum in a case that involved the NLRB’s refusal to apply binding Second Circuit precedent. See id In other words, what was at issue in that case was the NLRB’s refusal to apply a binding court decision-the NLRB had not issued a unilateral stay and the propriety, or lack thereof, of such action was not before the Second Circuit. Second, the Second Circuit’s statement must not be taken out of context. The NLRB is charged with the uniform application of the National Labor Relations Act. Its decisions may be reviewed in 12 venues-the 11 numbered U.S. Circuit Courts of Appeal and the U.S. Court of Appeals for the D.C. Circuit. See 29 U.S.C. § 160(f).
With respect to matters relating to veterans-benefits claims, however, Congress adopted a very different approach to judicial review. A decision of the Board can only be appealed to a single venue-this Court. See 38 U.S.C. § 7252(a). Therefore, concerns regarding uniformity and the propriety of a policy of nonacquies-cence
For example, in April 2005, the Board Chairman issued Memorandum 01-05-08, staying consideration of all tinnitus rating cases affected by this Court’s decision in Smith v. Nicholson, 19 Vet.App. 63 (2005). That stay was lifted in June 2006-shortly after the Federal Circuit reversed this Court’s decision and adopted a position with which the Secretary was in agreement thereby permitting the Secretary to deny claims filed by veterans for increased disability compensation-despite the fact that a petition for a writ of certiorari remained (and remains currently) pending before the U.S. Supreme Court. Hundreds of appeals from those recent denials are now pending before this Court. In contrast, in April 1992, the Board Chairman issued Memorandum 01-92-27, staying consideration of all claims for benefits under 38 U.S.C. § 1151 “pending further appellate action” with respect to this Court’s decision in Gardner v. Derwinski, 1 Vet.App. 584 (1991). See Secretary’s October 25, 2006, Pleading, Attachment 2. Despite the fact that this Court’s decision was subsequently upheld by the Federal Circuit and a unanimous U.S. Supreme Court, the April 1992 stay was not lifted until January 26, 1995, and then only after the Secretary sought and received an opinion from the Department of Justice’s Office of Legal Counsel regarding the extent to which the U.S. Supreme Court’s opinion authorized benefits. See e.g., Bd. Vet.App. 9512579, available on Westlaw. In the end, the dozen or so memoranda staying cases before the Board that have been issued since 1992 reflect no clear standard for determining whether the processing of a class of appeals should be stayed and no consistent approach to staying the processing of such appeals.
If, in the event of a disagreement with a decision of this Court, the need to conserve resources and ensure consistent treatment of similarly situated claimants is what motivates the Secretary and Board Chairman to stay the processing of appeals before the Board, the Court cannot understand why, while an appeal of the Federal Circuit’s decision is being pursued in the U.S. Supreme Court, the Secretary would lift the stay he imposed in response to the first Smith decision. The answer implied by these facts is that the Secretary’s opinion as to a particular legal issue is a superfactor in determining whether to implement a stay and, once a stay is imple-
In any event, the effect of the Secretary’s action in compelling the Board Chairman to issue Memorandum 01-06-24 is abundantly clear — so long as he does not want to, the Secretary believes that he is empowered to never apply this Court’s decision in Haas. It is telling that Board Chairman’s Memorandum 01-06-24 fails to even acknowledge the existence of this Court’s decision in Ramsey. Further, the Secretary might choose to apply a Federal Circuit or U.S. Supreme Court decision in Haas, but that too is unclear, particularly in light of the Secretary’s conduct in Gardner. Indeed, at oral argument, counsel for the Secretary was reluctant to identify any particular event that would trigger the revocation of Board Chairman’s Memorandum 01-06-24. Simply put, the delay at issue in this case is of indefinite duration-a duration that conceivably includes efforts by the Secretary to legislatively reverse an unfavorable result in the U.S. Supreme Court. This we cannot accept.
The circumstances present in this case are unlike those in cases where the Court has denied petitions based on delayed action by the Secretary. In Costanza, supra, the Court held that, for delay to constitute a clear and indisputable right to a writ, it must be “so extraordinary, given the demands and resources of the Secretary, that the delay amounts to an arbitrary refusal to act, and not the product of a burdened system.” 12 Vet.App. at 134. In this case, the Secretary chose to delay a decision on the petitioner’s claim because he disagrees with the decision in Haas. The delay in this case is not the product of a burdened system; rather, it is based on a choice by the Secretary to delay the adjudication of the petitioner’s claim.
D. Court’s Discretion to Issue Writ
The unilateral issuance of Board Chairman’s Memorandum 01-06-24 at the Secretary’s direction without prior judicial review of the criteria for properly taking such action flouts the rule of law, and the petitioner is without adequate alternative means to challenge this action. The clear central holding in the Court’s March 31, 2006, decision in Ramsey — that the Secretary lacks the authority to unilaterally stay the processing of appeals before the Board because of the effect of one of this Court’s decisions-stands as the binding precedent of this Court. Under such circumstances and in the exercise of our discretion, the writ is granted. We now turn to address the process by which the Secretary can seek to stay the processing of a class of appeals before the Board because of a disagreement with a decision of this Court or pending an appeal to the Federal Circuit.
E. Process for Seeking a Stay Pending Appeal
Although section 7107 governs how appeals before the Board are processed and when an appeal before the Board can be advanced or postponed, the enactment of that statute predates the creation of this Court and does not provide a means for addressing the situation now at hand. See Ramsey, 20 Vet.App. at 34 (noting that the predecessor to section 7107 “existed 55 years before this Court and judicial review were established”). We recognize, however, that in some instances delaying the effect of one of our decisions may make practical sense. And there is already in place in the Federal judiciary a system for considering whether such action is warranted in a given case. See Fed.R.Civ.P.
Whether such a motion is granted is entirely within this Court’s discretion, and, in exercising that discretion, this Court will look to the following four criteria generally considered relevant in determining whether to stay the effect of a court decision pending appeal: (1) The likelihood of success on the merits of the moving party’s appeal; (2) whether the moving party will suffer irreparable harm in the absence of a stay; (3) the impact on the non-moving party of that stay; and (4) the public interest. See Ramsey, 20 Vet.App. at 39 (citing Standard Havens Prods., Inc. v. Gencor Indus., Inc., 897 F.2d 511, 512 (Fed.Cir.1990)). To be clear, the Court’s grant of a stay of the effect of one of its decisions could include directing or authorizing the Secretary and Board Chairman to stay cases at the Board and at the agencies of original jurisdiction. See Nat’l Org. of Veterans’ Advocates v. Sec’y of Veterans Affairs, 260 F.3d 1365, 1380 (Fed.Cir.2001) (directing VA “to stay all proceedings involving claims for [dependency and indemnity compensation] benefits under [38 U.S.C. § ] 1318, whose outcome is dependent on the regulation in question, pending the conclusion of an expedited rulemaking”).
F. Summary
In sum, although the Secretary characterizes the issuance of Board Chairman’s Memorandum 01-06-24 as a proper exercise of his “inherent authority” to manage the docket before him, he possesses no authority, inherent or otherwise, to stay, arbitrarily and unilaterally, the processing of appeals merely because he disagrees with a decision of this Court in a proceeding to which he is a party. See infra at 555-57. To hold otherwise would be to allow an executive agency to nullify the effect of a judicial decision. See INS v. Chadha, 462 U.S. 919, 951, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (“The Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, [legislative, [executive, and [j]udicial, to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility.”); Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”). This we will not permit.
We therefore conclude that the petitioner has satisfied all three conditions for the issuance of an extraordinary writ. Because the appeals process before VA is halted as long as the Secretary’s directive and Board Chairman’s Memorandum 01-
Accordingly, the petition is granted. Board Chairman’s Memorandum 01-06-24 is unlawful and we order that memorandum rescinded. See 38 U.S.C. § 7261(a)(3) (providing that the Court may set aside “decisions, findings, conclusions, rules, and regulations” of the Board or the Secretary “found to be 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”). The Secretary will proceed to process the appeals that were stayed in accordance with that unlawful memorandum “in regular order according to [their] place on the docket” and will apply this Court’s decision in Haas to those appeals. 38 U.S.C. § 7107(a)(1). Of course, the Secretary is not precluded from filing a motion to stay the effect of this Court’s decision in Haas-an option that has been available to him since August 16, 2006, the date on which the Court issued that decision.
III. CONCLUSION
On consideration of the foregoing, the Court concludes that the petitioner has demonstrated a clear and indisputable right to a writ. The petition is therefore GRANTED to the following extent:
Board Chairman’s Memorandum 01-06-24 is ordered rescinded.
The Secretary will decide Mr. Ribaudo’s appeal “in regular order according to its place upon the docket,” and will apply this Court’s decision in Haas. 38 U.S.C. § 7107.
. Mr. Ribaudo’s third request-that the Court compel the Secretary to act on his motion to advance his case on the Board’s docket-is moot because that motion was denied on October 16, 2006. See Secretary’s Response to October 16, 2006, Court Order at 15.
. We find that argument to be unavailing. The central holding in Ramsey is clear — "the Secretary's authority to stay cases at the Board does not include the unilateral authority to slay cases at the Board (or [regional office]) pending an appeal to the Federal Circuit of a decision by this Court." 20 Vet. App. at 37. The Court went on to assert that it could not allow "[t]he Secretary’s otherwise permissible discretion ... to eviscerate this Court's authority and the rule of precedent.” Id. at 38. Although the Court ultimately denied the Ramsey petition, in light of the unique posture of that case, we respectfully disagree with our dissenting colleague that the Court’s clear and unambiguous holding in that case can be characterized as dicta. The Secretary’s argument elevates form over substance. It is clear that the Court denied the Ramsey petition simply as a mechanism to afford the Secretary the opportunity to comply with the procedure for obtaining a stay pending appeal, as set forth by the Court in its opinion. More importantly, regardless of whether the Court’s statement in Ramsey constitutes dicta and regardless of whether the statement in Tobler conflicts with the statement in Ramsey, this Court, now sitting as a full court panel, is not bound by this Court's prior decisions and is free to write on a clean slate. See Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992) (stating that "only the en banc Court may overturn a panel decision”). Thus, to the extent that the Secretary continues to question the binding nature of Ramsey, the remainder of this opinion will make the Secretary’s obligations clear. Finally, although the petitioner has suggested that the Secretary’s actions in failing to abide by Ramsey were contemptuous, we recognize that the Secretary’s arguments that the central holding in Ramsey was dicta were made in good faith.
. Section 7107 provides in pertinent part:
(a)(1) Except as provided in paragraphs (2) and (3) and in subsection (f), each case received pursuant to application for review on appeal shall be considered and decided in regular order according to its place upon the docket.
(2) A case referred to in paragraph (1) may, for cause shown, be advanced on motion for earlier consideration and determination. Any such motion shall set forth succinctly the grounds upon which the motion is based. Such a motion may be granted only—
(A) if the case involves interpretation of law of general application affecting other claims;
(B) if the appellant is seriously ill or is under severe financial hardship; or
(C) for other sufficient cause shown.
(3) A case referred to in paragraph (1) may be postponed for later consideration and determination if such postponement is necessary to afford the appellant a hearing.
. See Samuel Figler, Executive Agency Nonac-quiescence to Judicial Opinions, 61 Geo. Wash. L.Rev. 1664, 1667-68 (June 1993) (noting that the NLRB engages in nonacquiescence in the face of venue choice).
. The only statute governing the NRLB that deals with the order in which it decides cases is 29 U.S.C. § 160(m), which provides as follows:
*558 "Priority of cases. Whenever it is charged that any person has engaged in an unfair labor practice ... such charge shall be given priority over all other cases except cases of like character in the office where it is filed or to which it is referred and cases given priority under subsection {l).”