American Legion v. Nicholson

HAGEL, Judge,

dissenting:

I respectfully dissent from the conclusion reached by the majority opinion regarding whether The American Legion has standing to represent its members in seeking a writ of mandamus from this Court. Although I agree with the legal analysis of Judges Kasold and Schoelen and agree with their conclusion that The American Legion has standing to petition the Court in this case, I write separately to emphasize what I believe are the very limited circumstances that would support such standing.

The majority considers whether an association may assert standing on behalf of its members, focusing on 38 U.S.C. §§ 7252 or 7266, and whether an association could ever be a party before the Court challenging a Board decision. However, such an inquiry is not before the Court. The current situation is much more narrow. The American Legion, on behalf of its members, is seeking a writ of mandamus pursuant to the All Writs Act, 28 U.S.C. § 1651 (a), a form of purely legal relief. Such relief is prospective, equitable, not dependent on the individual circumstances of its members’ underlying appeals, and, if granted, would apply uniformly to all affected members. The American Legion is not attempting to establish associational standing in its own right, but to act on behalf of its individual members in resolving their appeals which are currently pending before the Board. This situation does not implicate 38 U.S.C. §§ 7252 or 7266. In this unique and narrow situation, neither the legal questions presented nor the nature of relief requested requires participation of individual members for proper consideration and resolution. See Int’l Union United Auto., Aerospace, & Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 106 S.Ct. 2523 , 91 L.Ed.2d 228 (1986). Where a lawsuit raises a question of pure law, as is the case here, regarding whether the Secretary may impose a stay on cases pending before the Board without first obtaining approval by this Court, so long as its members would have standing to sue in their own right, individual members are not required to participate in the lawsuit. Id. This case undoubtedly presents a pure question of law.

The American Legion asks the Court to declare unlawful an action by the Secretary that postponed indefinitely the adjudication of the claims of a number of The American Legion’s members, thus affecting the potential jurisdiction of this Court over such claims. This relief is common to all of the association’s members affected by the Chairman’s order. Further, the factors that would determine whether such relief should be granted or denied are totally independent of the individual circumstances of the underlying claims. Because the relief sought by The American Legion is equitable in nature and not dependent on the individual circumstances of its members’ underlying appeals, individual participation of its members is not required. Thus, in this narrow situation, the third prong of associational standing is met.

I strongly agree with the general thrust of the majority that the focus of this Court should be on individual claims. However, organizations have a legitimate interest in *12 advocating for their individual members. This is especially true in the context of matters related to veterans benefits, where veterans service organizations have long been one of the threads from which the fabric of such benefits is woven. In my view, the appropriate means to give voice to the concerns expressed by the majority is not to bar The American Legion or similar organizations access to this Court, at its doorstep, but instead to exercise the Court’s substantial latitude to evaluate the third prong of the test for whether the writ itself should be granted, i.e., the Court must be convinced, given the circumstances, that issuance of the writ is warranted. See Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380-81 , 124 S.Ct. 2576 , 159 L.Ed.2d 459 (2004). In that regard, given the unique character of this Court, an appropriate consideration may be, as here, whether a petition by an individual that, if granted, would provide the same relief is currently pending before the Court.