Yi v. Principi

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 00-1936
YI, PETITIONER ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, RESPONDENT .
Before FARLEY, HOLDAWAY, and GREENE, Judges.
ORDER
On September 25, 2000, the pro se petitioner filed correspondence with the Court that the
Court construes as a petition for extraordinary relief pursuant to Rule 21 of the Court's Rules of
Practice and Procedure (Rules). The petition asserts that in April 1997 the Department of Veterans
Affairs (VA) Office of General Counsel (GC) determined that the petitioner's VA medical records
would be amended to delete all references to a certain matter. The petitioner alleges that a local VA
Medical Center has not complied with the GC's directive and seeks the Court's authority to compel
VA's compliance with that directive. On October 12, 2000, under Rules 11(c)(2) and 48, the
petitioner's record was sealed.
In an order dated October 25, 2000, the Court ordered the Secretary to file a response to the
construed petition that addressed, inter alia, whether the Court's authority under the All Writs Act
(AWA), 28 U.S.C. § 1651(a), extends to the circumstances of this petition and, if not, what, if any,
alternative means are available to the petitioner to obtain the relief he seeks. The Secretary's
response, citing In the Matter of the Fee Agreement of Cox (Fee Agreement of Cox), 10 Vet.App.
361, 371 (1997), vacated on other grounds, 149 F.3d 1360 (Fed Cir. 1998), and In the Matter of the
Fee Agreement of Wick (Fee Agreement of Wick), 40 F.3d 367, 373 (Fed. Cir. 1994), asserts that
because Court intervention in the current dispute would not lead to a decision by the Board of
Veterans' Appeals (Board), the Court lacks jurisdiction under the AWA to act on this petition.
Alternatively, based upon a supporting affidavit attached as an appendix, the Secretary asserts that
the matter is moot because VA has already redacted the information in the petitioner's medical
records relating to the matter. On February 20, 2001, the petitioner filed a reply (and, subsequently,
numerous addenda) essentially disputing the Secretary's assertion that the matter has been resolved
and is now moot.
On June 28, 2001, these proceedings were stayed to permit possible arrangements for
representation of the petitioner. On July 26, 2001, the petitioner requested a stay of proceedings until
August 27, 2001, which the Court granted. On July 31, 2001, Morgain M. Sprague, Esq., entered
an appearance for the appellant. On August 3, 2001, this case was submitted to a panel for
consideration. On August 9, 2001, the Court granted the petitioner's motion for "the Court to refrain
from issuing judgment to provide counsel 30 days in which to present a clear legal analysis of the
petitioner's position."
On September 20, 2001, petitioner's counsel filed a motion to withdraw as the representative
of record for the petitioner because the petitioner had terminated her representation on that day. On
September 21, 2001, the petitioner filed a motion to terminate counsel, to stay proceedings until the
Court could rule on the petitioner's motions, to unseal the record, and to transfer his petition to his
pending case (Docket Number 99-1950). On September 27, 2001, judgment was entered on Docket
Number 99-1950. On September 28, 2001, the petitioner filed a motion for selection of a three-judge
panel for consideration and disposition of his case. On October 5, 2001, the Court granted counsel's
motion to withdraw.
Under the AWA, "all courts established by act of Congress may issue all writs necessary or
appropriate in aid of their respective jurisdiction." The Court's jurisdiction to issue a writ of
mandamus pursuant to the AWA relies upon not actual jurisdiction but potential jurisdiction. See
Hudson v. West, 13 Vet.App. 470, 471-72 (2000) (citing Heath v. West, 11 Vet.App. 400, 402
(1998)). As this Court held in Fee Agreement of Cox:
In other words, the Court's jurisdiction to issue the order sought by the petitioner
depends upon whether the Court would have jurisdiction to review the final Board
decision that would issue pursuant to that order. As the Supreme Court has held:
As the jurisdiction of the circuit court of appeals is exclusively
appellate, its authority to issue writs of mandamus is restricted by
statute to those cases in which the writ is in aid of that jurisdiction.
Its authority is not confined to the issuance of writs in aid of
jurisdiction already acquired by appeal but extends to those cases
which are within its appellate jurisdiction although no appeal has
been perfected.
Roche v. Evaporated Milk Ass'n, 319 U.S. 938, 941 (1943); see also McClellan v.
Carland, 217 U.S. 268, 280 (1910) ("we think it the true rule that where a case is
within the appellate jurisdiction of the higher court, a writ of mandamus may issue
in aid of the appellate jurisdiction which might otherwise be defeated by the
unauthorized action of the court below") (citing Knickerbocker Ins. Co. v. Comstock,
83 U.S. (16 Wall.) 258, 270 (1872)).
10 Vet.App. at 370-71; see also Hudson, 13 Vet.App. at 471-72.
Under 38 U.S.C. § 7252, this Court has exclusive jurisdiction to review decisions of the
Board. Here, the petitioner's complaint is with actions by VA's GC surrounding an agreement
apparently not related to any pending claim or Board decision thereon. Thus, any action by the Court
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would not be in aid of its "prospective jurisdiction." See Fee Agreement of Cox, supra; Erspamer
v. Derwinski, 1 Vet.App. 3, 9 (1990). Assuming that VA GC has not mooted this matter by already
redacting the pertinent information from the petitioner's VA medical records in accordance with the
agreement, any denial by the GC to do so is not a decision by the Board. The Court lacks appellate
jurisdiction over any issue that cannot be the subject of a Board decision. Because the relief sought
by the petitioner is not available under 38 U.S.C. § 511(a), the Court lacks jurisdiction over the
petition in this case. See Fee Agreement of Wick, 40 F.3d at 370, 373 (Mr. Wick did not establish
that, "without the extraordinary writ, the court will be prevented or frustrated from exercising its
statutorily granted jurisdiction over a Board decision").
Regarding the petitioner's motion to unseal his record, there is a presumption that the public
is entitled to access to judicial records filed with this Court. See Stam v. Derwinski, 1 Vet.App. 317,
319 (1991); see also 38 U.S.C. § 7268(a) ("All decisions of the Court of Appeals for Veterans
Claims and all briefs, motions, [and] documents . . . received by the Court . . . shall be public
records open to the inspection of the public."). The burden of overcoming the presumption of public
access is upon the party seeking to seal a court record. See Stam, 1 Vet.App. at 319-20. In his
motion, the petitioner states that "it now seems to be in my best interests if the entire record before
the Court becomes public knowledge." Petitioner's September 21, 2001, Motion at 7. Because the
petitioner no longer wishes to have his record sealed and there is a presumption that favors public
access, the Court will grant his motion.
On consideration of the foregoing, it is
ORDERED that the petitioner's motion to terminate his counsel is denied as moot. It is
further
ORDERED that the petitioner's motion for a stay of proceedings until the Court can rule on
his motions is denied as moot. It is further
ORDERED that the petitioner's motion to unseal his record is granted. The Clerk of the
Court is directed to unseal the petitioner's record. It is further
ORDERED that the petitioner's motion to transfer the petition to a pending case is denied
as moot. It is further
ORDERED that the petitioner's motion for selection of a three-judge panel for consideration
and disposition of his case is denied as not contemplated by the Rules. It is further
ORDERED that the veteran's petition for extraordinary relief in the nature of mandamus is
DISMISSED for lack of jurisdiction.
DATED: November 6, 2001 PER CURIAM.
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