American Legion v. Nicholson

SCHOELEN, Judge,

dissenting:

I respectfully dissent from the majority’s opinion in this case because the majority has muddled the concepts of subject-matter jurisdiction and standing. Once these concepts are untangled, it is clear that the Court has jurisdiction to hear the instant petition and that The American Legion has standing to bring it.

I. SUBJECT-MATTER JURISDICTION

Concerned with the lack of clarity in courts’ use of the word “jurisdiction,” the U.S. Supreme Court has stated that the only jurisdictional concepts are “prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.” Kontrick v. Ryan, 540 U.S. 443, 455 , 124 S.Ct. 906 , 157 L.Ed.2d 867 (2004); see also Arbaugh v. Y & H Corp., 546 U.S. 500 , 126 S.Ct. 1235, 1242 , 163 L.Ed.2d 1097 (2006) (“This Court, no less than other courts, has sometimes been profligate in its use of the term [‘jurisdiction’].”). The Court need not address further the issue of personal jurisdiction because that concept only protects defendants in a lawsuit from having to defend their conduct in a forum in which they have no presence. See Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 , 66 S.Ct. 154 , 90 L.Ed. 95 (1945). In the instant petition, only the personal jurisdiction of this Court over the respondent could be called into question, and the Secretary could not reasonably dispute this Court’s personal jurisdiction over him.

However, the Secretary does dispute this Court’s subject-matter jurisdiction over the instant petition. This Court, like all Federal courts, is a court of limited jurisdiction whose subject-matter jurisdiction does not extend beyond that authorized by the U.S. Constitution or by Federal statute. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 , 114 S.Ct. 1673 , 128 L.Ed.2d 391 (1994); see Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 , 108 S.Ct. 2166 , 100 L.Ed.2d 811 (1988) (stating rule that a Federal court created by statute derives its jurisdiction exclusively from the statutory grant provided by Congress, and the Court may not extend its jurisdiction beyond that permitted by law).

This Court’s subject-matter jurisdiction is generally defined by 38 U.S.C. § 7252 (a), which confers upon this Court “exclusive jurisdiction to review decisions of the Board.” The majority also cites 38 U.S.C. § 7266 (a) as governing the Court’s jurisdiction. Section 7266(a) states that, in order to obtain review by this Court, “a person ... shall file a notice of appeal with *13 the Court....” After citing 38 U.S.C. §§ 7252 (a) and 7266(a), the majority discusses why The American Legion is not a “person” within the meaning of section 7266(a). However, this discussion misses the point. The American Legion does not claim to be a “person” within the meaning of section 7266(a), nor does The American Legion seek extraordinary relief regarding its own claims. Rather, it is the members of The American Legion whose appeals are stayed by the Board, and The American Legion seeks relief for those members. Thus, the Court need only satisfy itself that the Court will have jurisdiction over the members’ claims to satisfy the subject-matter jurisdiction requirement.

The AWA jurisprudence supports this point. The Court’s jurisdiction over this petition is not based upon 38 U.S.C. § 7252 , but upon 28 U.S.C. § 1651 . Under the AWA, the Court has the authority to issue “all writs necessary or appropriate in aid” of its jurisdiction. 28 U.S.C. § 1651 (a) (emphasis added); see Cox v. West, 149 F.3d 1360, 1363 (Fed.Cir.1998) (upholding this Court’s authority to issue writs under the AWA). Although the AWA does not expand the Court’s jurisdiction, see id., the exercise of AWA power is not dependent upon actual jurisdiction (meaning that no Board decision is required for the Court to issue a writ), but it “extends to the potential jurisdiction of the appellate court where an appeal is not then pending but may be later perfected.” FTC v. Dean Foods Co., 384 U.S. 597, 603 , 86 S.Ct. 1738 , 16 L.Ed.2d 802 (1966). Thus, the Court’s jurisdiction to issue a writ “depends upon whether the Court would have jurisdiction to review the final [Board] decision that would issue pursuant to that order.” In re Cox, 10 Vet.App. 361, 370 (1997), vacated in part on other grounds, Cox v. West, supra.

In this case, it is clear that the “action sought by mandamus is within the [CJourt’s statutorily defined subject[-]matter jurisdiction.” In re Wick, 40 F.3d 367, 373 (Fed.Cir.1994). The Court has jurisdiction to issue the writ sought by The American Legion because the relief sought is limited to the adjudication of the claims of the individual members. The Court clearly has potential jurisdiction over those individual members’ claims. See 38 U.S.C. §§ 7252 (a), 7266(a). Allowing The American Legion to pursue the individual members’ claims would not aggrandize the Court’s jurisdiction because the granting of the extraordinary relief sought by the petitioner would only result in the adjudication of the individual claims over which the Court would have jurisdiction.

Finally, to see that it is clear that the Court has jurisdiction over the instant petition, one need look no farther than the identical petition that was filed at the same time by an individual claimant. See Ribaudo v. Nicholson, U.S. Vet.App. No. 06-2762 (Argued Dec. 6, 2006). The Secretary does not dispute the Court’s jurisdiction to hear Mr. Ribaudo’s petition, nor has the Court sua sponte requested that the parties brief the issue in that case. Because Mr. Ribaudo and The American Legion seek identical relief (rescission of the Board Chairman’s memorandum and adjudication of individual claims), the Court’s analysis of subject-matter jurisdiction in each case should yield the same result.

II. STANDING

The question of standing is independent of the Court’s subject-matter jurisdiction and derives from the case or controversy restraints of Article III of the U.S. Constitution. See U.S. Const, art III, § 2. Because this Court was created under Article I of the U.S. Constitution, this Court is not *14 constitutionally bound to follow the case or controversy restraints on the judicial power of Article III courts. See 38 U.S.C. § 7251 ; Nolan v. Nicholson, 20 Vet.App. 340, 348 (2006). However, as a matter of policy, this Court has always followed the Article III case or controversy requirements. See Mokal v. Derwinski, 1 Vet.App. 12, 14 (1990). One such requirement is that parties before the Court must have standing, meaning they must “ ‘personally ha[ve] suffered some actual or threatened injury as a result of the putative illegal conduct.’ ” Waterhouse v. Principi 3 Vet.App. 473, 475 (1992) (quoting Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 , 102 S.Ct. 752 , 70 L.Ed.2d 700 (1982)).

The U.S. Supreme Court has recognized that, “[e]ven in the absence of injury to itself, an association may have standing solely as the representative of its members.” Warth v. Seldin, 422 U.S. 490, 511 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975). In order for an association to have standing to bring suit on behalf of its members, it must satisfy a three-part test: (1) Its members must otherwise have standing to sue in their own right, (2) the interests the association seeks to protect must be germane to its purpose, and (3) neither the claim asserted, nor the relief requested, must require the participation of the individual members in the lawsuit. Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 , 97 S.Ct. 2434 , 53 L.Ed.2d 383 (1977); see Disabled Am. Veterans v. Gober, 234 F.3d 682 , 689 (Fed.Cir.2000). There can be no question that The American Legion satisfies the first two prongs of this test because it has submitted undisputed evidence that at least one of its members has had a claim stayed by the Board, see Disabled Am. Veterans, 234 F.3d at 689 (citing United Food & Commercial Workers Union Local 751 v. Brown Group, Inc. [hereinafter UFCW], 517 U.S. 544, 555 , 116 S.Ct. 1529 , 134 L.Ed.2d 758 (1996)), and the continued adjudication of its members’ claims is germane to The American Legion’s purpose, see id.

The third prong of the Hunt test does not derive from constitutional requirements, but it is based upon “administrative convenience and efficiency.” Id. at 556-57, 116 S.Ct. 1529 . While this Court is not constitutionally bound by any of the case or controversy restraints of Article III, see Nolan and Mokai both supra, making the entire standing inquiry prudential in this Court, nonetheless, this Court is bound to follow the decisions of the U.S. Supreme Court when applicable regardless of whether such decisions are based on constitutional grounds, statutory grounds, or prudential grounds. See U.S. Const, art. Ill, § 1 (“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”). The notion that the third prong of the Hunt test is prudential does not give the Court license to redefine the test. See UFCW, 517 U.S. at 556 , 116 S.Ct. 1529 (“To see Hunt’s third prong as resting on less than constitutional necessity is not, of course, to rob it of its value.”). Thus, it is unclear what is the basis for the majority’s contrary suggestion that we are not necessarily bound to follow the U.S. Supreme Court’s jurisprudence on associational standing. 1 Ante at 3^4.

*15 Rather, the prudential nature of the test means only that Congress may, by legislation, expressly allow or foreclose associational standing. See Reid v. Dep’t of Commerce, 793 F.2d 277, 280 (Fed.Cir.1986) (noting that “Congress, through the exercise of its legislative power, can resolve the question of prudential limitations on standing one way or the other”). For example, in UFCW , Congress expressly authorized unions to sue for damages on behalf of their members, and, therefore, the U.S. Supreme Court did not require the UFCW to satisfy the third prong of the Hunt test in order to establish associational standing. 517 U.S. at 558 , 116 S.Ct. 1529 . The Federal Circuit reached the opposite conclusion in Reid , finding that Congress had expressly denied unions associational standing to bring a claim before the Merit Systems Protection Board by its use of the term “employee.” 793 F.2d at 282 .

In this case, the majority appears to find that the use of the term “person” in 38 U.S.C. § 7266 (a) expresses a “clear” congressional intent to deny associational standing. In so finding, the majority relies upon the statements of Senator Cran-ston in support of the VJRA, in which he discussed such concepts as “fairness to individual claimants” and “veterans directly affected by various VA actions.” Ante at 4-5. The majority fails to recognize that these statements were made in the context of endorsing the broader concept of judicial review of veterans’ claims and were in no way an attempt to limit the Court’s authority. There is no evidence Senator Cranston, any other Senator or Representative, or Congress in general had even considered the concept of associational standing in enacting the VJRA. But, even accepting the Court’s conclusion that the use of the term “person” in section 7266(a) expresses a clear intent by Congress to preclude an association from bringing an appeal on behalf of its individual members, it does not necessarily follow that Congress intended the same limitation to apply in petitions for extraordinary relief brought under the AWA, where the Court would be acting in aid of its potential jurisdiction over the members’ claims. Indeed, Senator Cranston endorsed the use of the AWA in supporting the creation of this Court by stating that “ T would expect the court to utilize this power when it [is] ... necessary for it to do so in order for justice to prevail.’ ” Erspamer v. Derwinski, 1 Vet.App. 3, 6-7 (1990) (quoting 134 Cong. Rec. S16,648 (daily ed. Oct. 18, 1988) (statement of Sen. Cranston)). The majority finds congressional intent to deny associational standing based upon Congress’s silence on an issue that was never expressly considered. I do not find that there was congressional intent to deny (or to allow) associational standing in petitions for extraordinary relief brought in this Court under the AWA, and accordingly, The American Legion’s standing to bring this petition rests upon a determination of whether it has satisfied the third Hunt prong.

In applying the -third prong of the Hunt test, it is generally the nature of the remedy that determines whether the participation of the individual members is required. Where an association seeks prospective or injunctive relief, rather than monetary damages, individual participation by the individual members is not normally necessary. See, e.g., UFCW, 517 U.S. at 546 , 116 S.Ct. 1529 ; Hunt, 432 U.S. at 343 , 97 S.Ct. 2434 ; Bldg. & Constr. Trades Council of Buffalo v. Downtown Dev., Inc., 448 F.3d 138, 150 (2d Cir.2006) (stating that, “‘where the organization seeks a purely legal ruling *16 without requesting that the federal court award individualized relief to its members, the Hunt test may be satisfied’ ” (quoting Bano v. Union Carbide Corp., 361 F.3d 696, 714 (2d Cir.2004))); Pharm. Care Mgmt. Ass’n v. Rowe, 429 F.3d 294, 307 (1st Cir.2005) (finding that equitable relief, as opposed to monetary damages, “ ‘would inure to the benefit of those members of the association actually injured,”’ and, therefore, that individual participation of the members was not required (quoting Warth, 422 U.S. at 515 , 95 S.Ct. 2197 )). In contrast, where an association seeks damages on behalf of its members, individual participation is generally required. See, e.g., UFCW, 517 U.S. at 554 , 116 S.Ct. 1529 ; Harris v. McRae, 448 U.S. 297, 321 , 100 S.Ct. 2671 , 65 L.Ed.2d 784 (1980) (finding individualized participation necessary because, in a case brought under the Free Exercise Clause, an individual must demonstrate an enactment has a coercive effect upon the practice of his religion); Friends for Am. Free Enter. Ass’n v. Wal-Mart Stores, Inc., 284 F.3d 575, 577 (5th Cir.2002) (finding individual participation necessary where tort claims would be based upon choice of law questions); Wash. Legal Found, v. Legal Found, of Wash., 271 F.3d 835, 849-50 (9th Cir.2001) (en banc) (finding individual participation necessary in a takings claim because the determination of what compensation was due to victims of a taking necessarily required participation of the individual members).

The instant petition clearly falls into the former category. The relief sought by The American Legion is prospective — the timely adjudication of its members’ claims. The relief sought does not depend on the results of any of its members’ adjudications. See Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 287-88 , 106 S.Ct. 2523 , 91 L.Ed.2d 228 (1986) (finding the participation of individual union members unnecessary, even where “the unique facts of each UAW member’s claim will have to be considered by the proper state authorities before any member will be able to receive the benefits allegedly due him”). Thus, The American Legion satisfies the third prong of the Hunt test and has established its associational standing.

Because I would find that the Court has jurisdiction to hear this petition and that The American Legion has standing to bring it, I would consolidate this petition with Ribaudo, supra, and decide it on the merits in due course. I respectfully dissent.

. In his brief, the Secretary incorrectly refers to "[Fjederal courts of general jurisdiction” to suggest that the associational standing jurisprudence is inapplicable or inapposite. Secretary's Response to November 14, 2006, Court Order at 10. However, there are no Federal courts of general jurisdiction; all Federal courts are courts of limited jurisdiction, and this Court’s limited jurisdiction is no *15 basis on which to ignore U.S. Supreme Court precedent. See Kokkonen, supra.