Mokal v Derwinski




No. 89-23


December 4, 1989, Submitted March 9, 1990, Decided March 9, 1990, Filed  


COUNSEL: Marie E. Marlow, Petitioner’s custodian, for Petitioner.

Thomas A. McLaughlin, with whom Raoul L. Carroll, General Counsel, Andrew J. Mullen, Acting Assistant General Counsel, and Pamela L. Wood, Deputy Assistant  General Counsel were on Respondent’s Answer to Petition and Supplemental  Memorandum, for Respondent.  

JUDGES: Nebeker, Chief Judge, and Kramer and Farley Associate Judges.


OPINION: On a Petition for a Writ of Mandamus.

NEBEKER, Chief Judge: Petitioner’s daughter Marie E. Marlow, who is acting as his custodian, sent a letter to the Court, which we treat as a petition,  requesting that the Court preempt the appeal process within the Department of  Veterans Affairs (DVA) and assume jurisdiction over the petitioner’s claim under the All Writs Act, 28 U.S.C. § 1651 (1982). In the alternative, petitioner  requested that the Court issue a writ of mandamus compelling the Regional Office of the DVA to issue a delayed Statement of the Case, the document required to  secure review before the Board of Veterans’ Appeals (BVA).

Before the Court ruled on the petition, the Regional Office issued the  Statement of the Case. The Secretary contended, without supporting analysis,  that the request for a writ should be dismissed because the controversy giving  rise to the request had been resolved and the question was moot. He also  contended that the Court lacked authority to assume jurisdiction and adjudicate petitioner’s claim on the merits. Subsequently, the Court requested the  Secretary to elaborate on the mootness of the petition and the application of  the Article III case or controversy stricture of the Constitution by this  Article I Court.

In a footnote, the Secretary also questioned, without citation of support,  Mrs. Marlow’s authority to file an action in petitioner’s behalf. She responded that the forms she filed with the DVA authorizing her to receive DVA funds for  petitioner, as well the DVA instructions that specify who may represent a  claimant in an appeal to the BVA, authorize her to appeal to the Court. She  also contends that the Statement of the Case issued by the Regional Office is substantively defective and again asks the Court to preempt the BVA and hear the case on its merits.

We hold that a custodian’s authority to represent a claimant before  the DVA also permits prosecution of proceedings before this Court. We also hold that the Court will adhere to the case or controversy jurisdictional restraints adopted by Article III courts and we dismiss the petition for a writ of mandamus as moot. We need not consider the merits of petitioner’s argument with respect to the underlying case because petitioner has not exhausted available  administrative remedies.

As a preliminary matter, we note that the Court has authority to issue writs in aid of its jurisdiction. Erspamer v. Derwinski, No. 89-14 (U.S. Vet. App.  Feb. 23, 1990); In re Quigley, No. 89-61 (U.S. Vet. App. Jan. 22, 1990); 28  U.S.C. § 1651 (1982). The Court has liberally construed petitioner’s pleadings  as requests for All Writs relief. Given the authority to entertain requests for All Writs relief, we must determine whether the petitioner’s daughter has  authority to file a petition on behalf of her father.

The rather bare contention that Mrs. Marlow lacks authority to press her  father’s claim in this Court fails when viewed against the purpose for creating the Court. Congress, in providing for judicial review of veterans’  claims, conferred on the Court “exclusive jurisdiction to review decisions of  the Board of Veterans’ Appeals,” 38 U.S.C.A. § 4052 (West Supp. 1989), and  provided that “a person adversely affected by [a final decision of the Board  may] file a notice of appeal with the Court,” 38 U.S.C.A. § 4066 (West Supp.  1989). These enactments do not differentiate between the review of claims  brought directly by a claimant and those brought through a custodian.

Since Congress was aware that custodial representation of claimants was an  established practice in veterans benefits matters, we see no reason to succumb  to the Secretary’s invitation to impede access of incompetents represented by  recognized guardians to the Court. Indeed, to do so without some rational basis — not suggested by the Secretary — would be questionable as a due process  denial, and would deny a disadvantaged class of claimants access to review in  this Court. We hold that the recognized fiduciary relationship between a  claimant before the DVA and a custodian — whether created under state law or by the Secretary — is sufficient to empower that custodian to pursue remedies  before this Court.

We turn to the substantive issues of the petition. The Secretary argues that the controversy underlying the petition for a writ of mandamus is moot. He  notes that Article III courts are prohibited by the case or controversy  requirement from exercising judicial power over moot questions. He acknowledges that Congress may authorize Article I courts to perform functions denied Article III courts, but argues that the absence of specific authorization to issue  advisory opinions precludes issuing such opinions. In addition, the Secretary  suggests that other Article I courts, specifically the District of Columbia  Court of Appeals and the United States Claims Court, have determined that the  exercise of their power is limited to cases or controversies and urges the Court to follow their example.

The legislation that created the District of Columbia Court of Appeals,  unlike the legislation that created the Court of Veterans Appeals, provided a  basis for adopting a case or controversy requirement. See United States v. Cummings, 301 A.2d 229, 231 (D.C. 1973) (“D.C. Code 1967, § 11-705 (Supp. v,  1972) provides for the hearing of ‘[c]ases and controversies’ by [the District  of Columbia Court of Appeals].”). The Court of Claims, predecessor to  the United States Claims Court, relied on Supreme Court decisions limiting the  use of judicial power by Article III courts when it determined that the use of  its power is limited to cases or controversies. See Manufacturers Hanover Trust Co. v. United States, 590 F.2d 893, 894 (Ct. Cl. 1978) (citing North Carolina v. Rice, 404 U.S. 244, 246 (1971); United States v. Alaska S.S. Co., 253 U.S. 113, 116 (1920)). We recognize that these courts adopted the case or controversy  restraint based on sound policies and constitutional considerations, and while  the Court of Veterans Appeals is not bound by the decisions of its sister  Article I courts, we accord them great respect.

The Secretary’s argument understandably shies away from a constitutional  analysis of the nature of this Court’s power as a court or tribunal established under Article I. 38 U.S.C.A. § 4051 (West Supp. 1989). It is little wonder,  since the Supreme Court’s decisions in this area “do not admit of easy  synthesis.” Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 847 (1986); Northern Pipeline Constr. v. Marathon Pipe Line Co., 458 U.S. 50, 91  (1982). The Article III case or controversy requirement specifically limits the exercise of the “judicial Power of the United States.” U.S. Const. art. III, §  2. The Supreme Court has only applied the Article III case or controversy  restraint to the exercise of judicial power by Article III courts. Whether a  non-Article III body can exercise the judicial power has occupied the attention of the Supreme Court since Chief Justice Marshall introduced the question. See American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511 (1824). The latest chapter on the controversy was opened in Palmore v. United States, 411 U.S. 389 (1973).

In Palmore the Supreme Court expressly upheld the exercise of judicial power by an Article I court in a federal criminal case and observed that Congress was not limited to delegating judicial power to Article III courts, Id. at 400-01.

Although Palmore has not been overruled, Justice Brennan, writing for a  plurality in Northern Pipeline, would limit Palmore to its facts and readopt a  literal interpretation of Article III in which “[t]he judicial power of the  United States must be exercised by courts having the attributes  prescribed by Art. III.” 458 U.S. at 59. Since Northern Pipeline, the Supreme  Court has adopted a balancing test and “declined to adopt formalistic and  unbending rules” in determining the extent to which Congress can authorize “the adjudication of Article III business in a non-Article III tribunal.” Commodity  Futures Trading Comm’n, 478 U.S. at 851 (citing Thomas v. Union Carbide  Agricultural Products Co., 473 U.S. 568, 587 (1985)). Post-Northern Pipeline  majority opinions have not discussed the type of power exercised by non-Article III adjudicatory bodies.

We recognize the unsettled nature of the law in this area and do not attempt to resolve the controversy for purposes of this case. We do note, however, that the Court of Veterans Appeals exercises power comprising essential attributes of judicial power. See Gordon v. United States, 117 U.S. 697, 702 (1864). The Court has the power to render a judgment that will bind the rights of the  parties litigating before it, 38 U.S.C.A. § 4052 (West Supp. 1989), award  execution of a judgment, and adjudicate contempt, 38 U.S.C.A. § 4065 (West Supp. 1989).

Under these circumstances, it is sufficient to observe that we are  granted power judicial in nature and being statutorily characterized as a “Court” we are free, in the absence of a congressional directive to the  contrary, to adopt as a matter of policy the jurisdictional restrictions of the Article III case or controversy rubric. Since the controversy surrounding this petition is moot, see State Highway Comm’n v. Volpe, 479 F.2d 1099 (8th Cir.  1973), we hold that the Court no longer has jurisdiction and the petition is  dismissed insofar as it seeks mandamus relief.

Finally, petitioner asserts that the Statement of the Case the Regional  Office issued is defective and asks the Court to preempt the BVA and hear the  merits of his claim. Because petitioner has not exhausted administrative  remedies available to him, the Court need not examine the substance of the  Statement of the Case and will not preempt the BVA to hear the merits of the  claim. We express no view on the power of the Court by certiorari, or  otherwise, to preempt a demonstrably futile administrative review process. See Erspamer v. Derwinski, No. 89-14 (U.S. Vet. App. Feb. 23, 1990); In re Quigley, No. 89-61 (U.S. Vet. App. Jan. 22, 1990).

The request to preempt is denied.

So ordered.

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