Anthony J. O'Branovic v. R. James Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 04-1741

ANTHONY J. O'BRANOVIC, PETITIONER ,

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, RESPONDENT .

Before IVERS, Chief Judge, and GREENE and SCHOELEN, Judges.

ORDER

On June 23, 2004, the Board of Veterans' Appeals (Board) issued an order remanding the

petitioner's claim of clear and unmistakable error (CUE) to a VA regional office (RO) for additional

development. On September 22, 2004, the petitioner, through counsel, filed a petition for

extraordinary relief in the nature of a writ of mandamus. The petitioner is seeking restoration of his

100% rating for disability compensation, which had been reduced to 70%. He asserts that the Board

erred by remanding the claim rather than ordering the RO to issue proper notice under 38 C.F.R.

§ 3.105(e), so that he could submit additional evidence as to why his rating should not be reduced.

In response, the Secretary moved to dismiss the petition. On January 12, 2005, in a single-judge

order, the Court denied the petition for extraordinary relief in the nature of a writ of mandamus. The

Court found that the petitioner had not shown a clear and indisputable right to the writ, nor had he

exhausted his administrative remedies.

On January 25, 2005, the petitioner filed a motion for reconsideration, or, in the alternative,

for a panel decision. In his motion, the petitioner states that his "entitlement to relief lies exclusively

under this Court's authority pursuant to 38 U.S.C. § 7261(a)(2)." Petitioner's Motion (Mot.) for

Reconsideration or in the Alternative Panel Review, at 2 n.1. He contends that "[w]here the

Secretary unlawfully withholds and/or unreasonably delays a benefit, the claimant has an

independent, statutory right to this Court's assistance under [section] 7261(a)(2)." Id. at 9. On

February 15, 2005, the petitioner supplemented the record by notifying the Court that on October 22,

2004, the RO had issued a Supplemental Statement of the Case finding CUE with respect to the

effective date of the reduction and changing the effective date from May 1, 1970, to June 1, 1970.

See Petitioner's Supplemental Submission, at Exhibit (Ex.) A. The petitioner also notified the Court

that on February 11, 2005, he filed a Notice of Disagreement with this new rating decision. Id. at

3, Ex. C. For the reasons set forth below, the Court will grant the motion for a panel decision,

revoke the Court's January 12, 2005, order, and issue this order in its place.

Regardless of the petitioner's assertions to the contrary, he argues two independent bases

upon which he may obtain relief. First, in his petition, he sought relief under the All Writs Act,

28 U.S.C. § 1651. Alternatively, in his motion for reconsideration, the petitioner seeks relief under

this Court's power pursuant to 38 U.S.C. § 7261(a)(2) to "compel action of the Secretary unlawfully

withheld or unreasonably delayed."

"The remedy of mandamus is a drastic one, to be invoked only in extraordinary

circumstances." Kerr v. United States Dist. Court, 426 U.S. 394, 402 (1976). Before the Court may

issue a writ pursuant to the All Writs Act, a petitioner must demonstrate (1) a clear and indisputable

right to the writ and (2) a lack of an adequate alternative means to obtain the relief sought. See

Erspamer v. Derwinski, 1 Vet.App. 3, 9 (1990). The Secretary argues that the petitioner has two

alternative means of seeking relief from the Board order. He could file a request for reconsideration

with the Board under 38 U.S.C. § 7103, or he could appeal a subsequent RO decision. Moreover,

the petitioner now concedes "that his petition for relief does not lie under [the All Writs Act] for the

reasons set out in the [C]ourt's order of January 12, 2005." Mot. at 2 n.1. Nothing in the petitioner's

motion for reconsideration alters the Court's conclusion that he has neither shown a clear and

indisputable right to the writ, nor exhausted his administrative remedies. In fact, the petitioner's

supplemental information shows that his claim is moving through the VA claims appellate process.

Hence, the Court will not grant extraordinary relief under the All Writs Act. See Erspamer, supra.

In his motion for reconsideration, the petitioner advances an alternative theory for entitlement

to the writ. Specifically, he asserts that he may obtain relief solely under this Court's power to

"compel action of the Secretary unlawfully withheld or unreasonably delayed." 38 U.S.C.

§ 7261(a)(2). However, both this Court and the United States Court of Appeals for the Federal

Circuit have held that the authority granted to this Court in 38 U.S.C. § 7261(a)(2) is a grant of

power to the Court, and not a grant of jurisdiction. See In re Fee Agreement of Wick, 40 F.3d 367,

371 (Fed. Cir. 1994) (stating that 38 U.S.C. § 7261 "does not provide an independent basis for

jurisdiction"); see also In re Fee Agreement of Cox, 10 Vet.App. 361, 369 (1997) (identifying section

7261(a)(2) as "a specific grant of power[ ]that supplies the Court with the authority to 'compel action

of the Secretary unlawfully withheld or unreasonably delayed' when the Court otherwise possesses

jurisdiction"), vacated in part on other grounds sub nom. Cox v. West, 149 F.3d 1360 (Fed. Cir.

1998). The grant of power does not equate to a grant of jurisdiction. See In re Fee Agreement of

Cox, 10 Vet.App. at 369. Section 7261 confers no independent jurisdiction and "merely sets out the

scope of the review to be conducted by the [Court]." Mayer v. Brown, 37 F.3d 618, 620 (Fed. Cir.

1994), overruled in part on other grounds by Bailey v. West, 160 F.3d 1360, 1368 (Fed. Cir. 1998)

(en banc). Thus, section 7261 requires an independent source of jurisdiction for its deployment, such

as a final Board decision. See 38 U.S.C. §§ 7252(a) and 7266(a). Therefore, the Court cannot

consider a petition solely on the basis of the Court's power under 38 U.S.C. § 7261(a)(2) to "compel

action of the Secretary unlawfully withheld or unreasonably delayed." Because no independent

source of jurisdiction is present in this case, the Court is without authority to grant the relief the

petitioner seeks.

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Upon consideration of the foregoing, it is by the single judge

ORDERED that the motion for reconsideration is denied. It is, by the panel,

ORDERED that the motion for a panel decision is granted. It is further

ORDERED that the Court's January 12, 2005, order is revoked, and this order is issued in

its place. It is further

ORDERED that the petition for extraordinary relief in the nature of a writ of mandamus is

DENIED IN PART and DISMISSED IN PART.

DATED: April 12, 2005 PER CURIAM.

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