The opinion
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 03-1903
R. EDWARD BATES, PETITIONER ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, RESPONDENT .
Before FARLEY, IVERS, and STEINBERG, Judges.
ORDER
On July 28, 2003, the petitioner was informed by a letter from the Department of Veterans
Affairs (VA or the Department) General Counsel (GC) that the Secretary had cancelled his
accreditation to represent claimants before VA. On August 6, 2003, the petitioner, through counsel,
filed with a VA regional office (RO) a Notice of Disagreement (NOD) as to the Secretary's decision.
On October 20, 2003, the petitioner, through counsel, filed in this Court a petition for extraordinary
relief in the nature of a writ of mandamus. The petitioner requests that this Court order the Secretary
to provide a Statement of the Case (SOC) in connection with his NOD. On October 28, 2003, the
petitioner filed a supplemental verified petition confirming that the Secretary refused to issue an
SOC in this matter.
On October 31, 2003, the Court ordered the Secretary to file an answer to the petition. On
December 1, 2003, the Secretary filed his answer arguing that the Court's authority under the All
Writs Act (AWA), 28 U.S.C. § 1651(a), does not extend to the matter raised in this petition because
such matter could never result in a decision by the Board of Veterans' Appeals (Board or BVA).
Accordingly, the Secretary urges the Court to dismiss the petition for lack of jurisdiction. Based on
the following analysis, the Court has concluded that the issue of the petitioner's challenge to the
termination of his accreditation is not justiciable by the Board, and thus the Court will dismiss the
petition for lack of jurisdiction.
Pursuant to the AWA, "[t]he Supreme Court and all courts established by Act of Congress
may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to
the usages and principles of law." 28 U.S.C. § 1651(a). The Supreme Court has held that "the
exercise of this [AWA] power . . . 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 (1966) (citing Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 25 (1943)). The Act, however,
empowers a court to act only "in aid of [its] . . . jurisdiction[]", 28 U.S.C. § 1651(a). It cannot be
used to expand the statutory jurisdiction of a court. See Cox v. West, 149 F. 3d 1360, 1363 (Fed. Cir.
1998) [hereinafter Cox] (expressly affirming AWA holdings of In re Fee Agreement of Cox,
10 Vet.App. 361, 371 (1997) [hereinafter In re Cox], and stating that "[i]t is well established that the
AWA does not expand a court's jurisdiction"); see also 19 JAMES WM . MOORE ET AL ., MOORE 'S
FEDERAL PRACTICE ¶ 204.02[4] (3d ed. 1997). The AWA does not expand a court's general
jurisdiction, but rather is to be used only for the limited purpose of protecting its potential
jurisdiction. See Roche, 319 U.S. at 26; Cox, supra.
This Court "shall have such assistance in the carrying out of its lawful writ . . . as is available
to a court of the United States." 38 U.S.C. § 7265(b). It may issue writs in aid of its jurisdiction
under the AWA. See Cox, 149 F. 3d at 1364; In re Cox, 10 Vet.App. at 367-69. This Court's
jurisdiction under chapter 72 of title 38, U.S. Code, is limited to reviewing final decisions of the
Board, see 38 U.S.C. § 7252(a); therefore, if the Court's granting of the instant petition could lead
to a BVA decision over which the Court would have jurisdiction, the Court would possess
jurisdiction to issue a writ of mandamus. See In re Cox, 10 Vet.App. at 370; see also In re Fee
Agreement of Wick, 40 F.3d 367, 373 (Fed. Cir. 1994) (holding that the U.S. Court of Appeals for
Veterans Claims has jurisdiction under AWA where it would otherwise "be prevented or frustrated
from exercising its statutorily granted jurisdiction over a Board decision but "is not vested with
original jurisdiction"). Thus, where VA fails or refuses to adjudicate a claim presented, the Court
has the authority to direct the Secretary to act on that claim. See Cox and In re Cox, both supra; see
also 38 U.S.C. § 7261(a)(2) ("[T]he Court of [Appeals for Veterans Claims], to the extent necessary
to its decision and when presented, shall . . . compel action of the Secretary unlawfully withheld or
unreasonably delayed."). However, if the matter is one that could never come before the Board, and
eventually to this Court, then we are without jurisdiction to entertain a writ. Consequently, in the
instant case, unless the Court's granting of the petition – ordering the Secretary to provide an SOC
on the question whether the petitioner should continue to be accredited to represent claimants before
the BVA – could lead to a Board decision on that question, this Court is without jurisdiction to issue
the writ.
The Secretary is responsible for the recognition of representatives of organizations, individual
agents, and attorneys "in the preparation, presentation, and prosecution of claims under laws
administered by the Secretary." 38 U.S.C. § 5902(a); see 38 U.S.C. §§ 5903, 5904;
38 C.F.R. § 14.629 (2003) (providing requirements for accreditation of representatives, agents, and
attorneys). Furthermore, it is within the Secretary's authority to "suspend or exclude from further
practice before the Department any agent or attorney [who, inter alia,] (1) has engaged in any
unlawful, unprofessional, or dishonest practice; . . . or (5) has in any manner deceived, misled, or
threatened any actual or prospective claimant." 38 U.S.C. § 5904(b)(1), (5).
The Secretary has broad authority under 38 U.S.C. § 5904(a) and (b) to regulate
representational activities by attorneys in connection with recognizing them for claims representation
before the Department and suspending them from such practice for engaging in certain specified
conduct (including violation of any laws administered by VA). This authority clearly permits VA
to require an agent or attorney to satisfy certain basic statutory qualifications (e.g., good moral
character, training, and competence) and further permits the Secretary to require an agent or attorney
to agree to follow the law governing representation, including suspension and termination of
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accreditation. 38 U.S.C. § 5904(a), (b). The Secretary has promulgated regulations governing the
termination of accreditation of agents and attorneys; these regulations include the right to notice and
a hearing. 38 C.F.R. § 14.633 (2003). The record in such matters is forwarded to the VAGC for a
decision, and those decisions are final. 38 C.F.R. § 14.633(f), (g).
The petitioner offers no convincing suggestion as to how this Court could have authority to
review his petition. Relying on Cox, supra, he argues that this Court has jurisdiction to hear his
petition because the Secretary's decision to cancel his accreditation is based upon 38 U.S.C.
§ 5904(b), "a law that affects the provision of benefits by the Secretary to veterans or the dependents
or survivors of veterans." Petition at 11-14 (quoting 38 U.S.C. § 511(a)); see Cox, 149 F.3d at 1365.
The petitioner's argument is unavailing. He essentially argues that the operative sections for
Board review over this matter are 38 U.S.C. § 7104 in conjunction with 38 U.S.C. § 511(a).
Pursuant to 38 U.S.C. § 7104(a), the Board has jurisdiction over matters arising under 38 U.S.C.
§ 511(a). Specifically, section 7104(a) provides: "All questions in a matter which under section
511(a) of this title is subject to decision by the Secretary shall be subject to one review on appeal to
the Secretary. Final decisions on such appeals shall be made by the Board." In turn, section 511(a)
provides: "The Secretary shall decide all questions of law and fact necessary to a decision by the
Secretary under a law that affects the provision of benefits by the Secretary to veterans or to
dependents or survivors of veterans." 38 U.S.C. § 511(a). Section 7104 thus confers jurisdiction
on the Board over questions arising under section 511(a), and a claimant may in turn appeal an
adverse Board ruling to this Court under 38 U.S.C. § 7252(a). See Cox, 149 F.3d at 1364; In re Cox,
10 Vet.App. at 372-73. This Court in In re Cox held that "section 5904(d) is a statute 'affect[ing]
the provisions of benefits' by VA as referred to in section 511(a)." In re Cox, 10 Vet.App. at 372;
see Cox, 149 F.3d at 1365 (agreeing with this Court's determination).
The circumstances in In re Cox are distinguishable from those now before us. In re Cox
involved the interpretation of 38 U.S.C. § 5904(d), which gives the Secretary the authority to
withhold a portion of past-due benefits otherwise due to a VA claimant and to pay those withheld
benefits to an attorney, pursuant to an otherwise valid fee agreement. In re Cox, 10 Vet.App. at 372;
see Cox, 149 F.3d at 1365. In In re Cox, this Court explained:
Had the Secretary, for instance, withheld more than was called for under the provision of an
otherwise valid fee agreement and delivered that amount to an attorney, the 'provision of
benefits' to the veteran would plainly be 'affect[ed]', and the veteran would have recourse
before [a VARO], the BVA, and this Court (as long as all of the other jurisdictional
requirements were met).
In re Cox, 10 Vet.App. at 372. Section 5904(d) is clearly a law that affects the provision of benefits
by the Secretary. Section 5904(b), on the other hand, is a law that pertains to a decision to terminate
the accreditation of an attorney based on certain attorney action, including the alleged violation of
section 5904(c)(1) relating to charging and receiving fees from veterans and section 5905(1) relating
to soliciting and contracting for illegal fees. Section 5904(b) says nothing about VA benefits. For
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example, it does not give the Secretary authority to alter the amount of benefits that VA claimants
are to receive. Whether an attorney's accreditation is terminated does not affect the provision of VA
benefits because VA benefits may be awarded regardless of whether a claimant is represented by an
attorney. Moreover, as noted by this Court, "[s]ection 511(a) bases the Secretary's jurisdiction not
upon an actual effect upon a particular claimant's benefits but upon whether the law to be
interpreted is one that 'affects the provision of [VA] benefits'." In re Cox, 10 Vet.App. at 373
(quoting 38 U.S.C. § 511(a) and adding emphasis). Other than citing to Cox, supra, the petitioner
fails to explain how section 5904(b) affects the provision of VA benefits.
The provisions of section 5904 also do not provide the Board with jurisdiction to review the
petitioner's claim. Pursuant to 38 U.S.C. § 5904, the Board has limited jurisdiction to review the
reasonableness of a fee and to reduce the fee. 38 U.S.C. § 5904(c)(2). Our jurisdiction under the
provisions of 38 U.S.C. § 5904 is strictly limited to review of BVA decisions regarding fee
agreements. There is no concomitant statutory or regulatory basis for the Board or this Court to
review an attorney's accreditation or termination of accreditation. Rather, by regulation, the
Secretary has delegated to the VAGC the authority to terminate an accreditation. 38 C.F.R.
§ 14.633(g). Nowhere is the BVA included in this scheme. Moreover, no imaginative reading of
38 U.S.C. § 5904 could transmute the petitioner's dispute with VA concerning the termination of his
attorney accreditation into a dispute concerning a specific fee agreement over which this Court might
eventually exercise jurisdiction.
In view of the foregoing analysis, the Court concludes that, under the circumstances of this
case, the petitioner has not shown that the decision by the VAGC to terminate the petitioner's
accreditation under section 5904(b) is a decision under a law that "affects the provision of benefits
by the Secretary to veterans or the dependents or survivors of veterans." 38 U.S.C. § 511(a).
Accordingly, it is not a matter subject to review by the Board, pursuant to 38 U.S.C. § 7104(a), and
is thus not a matter over which this Court could potentially obtain jurisdiction under section 7252(a).
On consideration of the foregoing, it is
ORDERED that the petition for extraordinary relief in the nature of a writ of mandamus is
DISMISSED for lack of jurisdiction.
DATED: February 19, 2004 PER CURIAM.
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