American Legion v. Nicholson

KASOLD, Judge,

dissenting:

I respectfully submit that the majority confuses the extent of our appellate jurisdiction with our authority under the All Writs Act to exercise our judicial authority in aid of our appellate jurisdiction. Compare 38 U.S.C. §§ 7252 , 7266 (Court jurisdiction and review authority) with 28 U.S.C. § 1651 (a) (All Writs Act). The Court’s appellate jurisdiction is limited to reviewing Board decisions initiated by persons adversely affected by those decisions. See 38 U.S.C. §§ 7252 (a), 7266(a). This is not, however, exclusive of our well-established authority to grant extraordinary relief in aid of our jurisdiction pursuant to the All Writs Act, a power the Court has had since its inception. See 28 U.S.C. § 1651 (a); Erspamer v. Derwinski, 1 Vet.App. 3, 6 (1990) (“Congress specifically provided that this court would ‘have such assistance in carrying out of its lawful writ, process, order, rule, decree, or command as is available to a court of the United States.’ 38 U.S.C.A. § 4065 (b) (West Supp.1989). Moreover, it is clear that Congress intended that this court have and, in appropriate instances, use jurisdiction under the All Writs Act.”); In re Quigley, 1 Vet.App. 1 (1989) (“The Court, having been ‘established by Act of Congress,’ has [authority] to act ‘in aid of [its] ... jurisdiction ]’ pursuant to the All Writs Act....”).

It is axiomatic that the Court may not use its authority under the All Writs Act to expand its appellate jurisdiction. See Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 41 , 106 S.Ct. 355 , 88 L.Ed.2d 189 (1985); see also 16 CHARLES Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practioe and Procedure § 3932, p. 470 (2d ed. 1996) (“The All Writs Act ... is not an independent grant of appellate jurisdiction.”); 19 J. Moore & G. Pratt, Moore’s Federal Prao-tioe § 204.02[4] (3d ed. 1998) (“The All Writs Act cannot enlarge a court’s jurisdiction.”). However, this does not, and cannot, mean that our judicial authority is not enhanced by legislation granting us authority to issue writs in aid of our jurisdiction under the All Writs Act. See Carlisle v. United States, 517 U.S. 416, 429 , 116 S.Ct. 1460 , 134 L.Ed.2d 613 (1996) (“ ‘The All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute.’ ” (quoting Pa. Bureau of Corr., 474 U.S. at 43 , 106 S.Ct. 355 )); Pacheco de Perez v. AT & T Co., 139 F.3d 1368, 1379 (11th Cir.1998) (holding that the All Writs Act does not provide an independent basis for supplemental Federal jurisdiction in situations where “[F]ederal jurisdiction is otherwise wholly lacking”); see also 19 Moore’s Federal PRACTICE § 201.40 (“[A] writ may not be used ... when another method of review will suffice.”). After all, it is the All Writs Act that gives the Court the authority to issue the very injunctive relief sought by the petitioner. See Wis. Right to Life, Inc. v. Fed. Election Comm’n, 542 U.S. 1305, 1306 , 125 S.Ct. 2 , 159 L.Ed.2d 805 (2004) (REHNQUIST, C.J., in chambers) (“The All Writs Act, 28 U.S.C. § 1651 (a), is the only source of this Court’s authority to issue such an injunction.”); Erspamer and Quigley , both supra.

Inasmuch as we have the authority to grant the requested relief, the only question is whether the petitioner has standing *10 to seek that relief. The American Legion does not seek to appeal a Board decision. Rather, The American Legion petitions the Court for extraordinary relief on behalf of its members through the exercise of our authority under the All Writs Act. The fact that The American Legion cannot bring an appeal on any of the underlying claims does not deprive the Court of the authority to hear its petition. Most associational standing cases involve injunctive relief in situations where the association could not assert for itself any of the underlying claims or bring an appeal of an adverse decision on those claims. See Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 , 126 S.Ct. 1297 , 1303 & n. 2, 164 L.Ed.2d 156 (2006) (associational standing recognized for an association of law schools and law faculties that could not claim entitlement to the Federal funds at issue); Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 288-89 , 106 S.Ct. 2523 , 91 L.Ed.2d 228 (1986) (associational standing of employee union to sue on behalf of its affected members in Federal court even though the union could not recover for itself the underlying benefits payable to workers who were laid off due to competition from imports); Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 342-46 , 97 S.Ct. 2434 , 53 L.Ed.2d 383 (1977) (associational standing recognized for a state agency, even though it had no members and could assert “no more than an abstract concern for the well-being” of the industry); see also Camel Hair & Cashmere Inst., Inc. v. Associated Dry Goods Corp., 799 F.2d 6, 12 (1st Cir.1986) (“actions for declaratory, injunc-tive and other forms of prospective relief have generally been held particularly suited to group representation” (emphasis added)).

Moreover, the majority’s reliance on Reid v. Dep’t of Commerce, 793 F.2d 277 (Fed.Cir.1986), is misplaced, as that case is inapposite to the situation here. Unlike Reid , the instant case does not involve an appeal decision of a lower tribunal. It involves the legality of an order by the Secretary to stay the processing of cases, where such stay impacts the Court’s jurisdiction to hear appeals by affected veterans. The exercise of our authority would not involve the merits of a Board decision; it involves only consideration of the legality of the order pursuant to our All Writs Act authority, and the possible exercise of that authority.

The majority also misunderstands the third prong of the associational standing test, which serves to deny associational standing when “the claim asserted [or] the relief requested requires the participation of individual members in the lawsuit.” Hunt, 432 U.S. at 343 , 97 S.Ct. 2434 . In this case, as noted, the only issue is the purely legal question of whether the Secretary or the Board Chairman have the authority to stay the processing of cases at the Board; the particular facts and merits of the individual cases stayed pursuant to the Secretary’s order are not relevant. Thus, the third prong is fully satisfied because participation of individual members is not required.

Finally, the majority finds congressional intent to exclude associational standing, but fails to recognize this arises from and extends solely to legislative history and statutes addressing our authority to hear appeals from Board decisions. None of the legislative history or statutory analysis cited by the majority addresses associational standing in the context of a request for an exercise of our authority under the All Writs Act. In contrast, the Supreme Cburt has noted that associational standing generally has been found appropriate in cases where injunctive relief, such as that granted pursuant to All Writs Act *11 authority, is sought — as is the case here. See Worth v. Seldin, 422 U.S. 490, 515 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975); see also Camel Hair & Cashmere Inst., Inc., supra. In sum, we have the authority to hear the petition and, if warranted, to grant it, and The American Legion has standing to bring it. There are no legal, prudential, or other cogent reasons to dismiss this case for lack of standing. Accordingly, I respectfully dissent.