Moore v Derwinski




No. 90-133


1990 U.S. Vet. App. LEXIS 25; 1 Vet. App. 83

September 19, 1990, Submitted. November 14, 1990, Decided.


COUNSEL: Robert Moore, pro se.

Andrew J. Mullen, Deputy Assistant General Counsel, and Carolyn F. Washington were on the pleadings for appellee.

JUDGES: Mankin, Ivers, and Steinberg, Associate Judges.  


OPINION: On Appellant’s Motion for Injunction Pending Appeal.  

MANKIN, Associate Judge, filed the opinion of the Court, in which IVERS,  Associate Judge, joined. STEINBERG, Associate Judge, concurring in part and  dissenting in part, filed a separate opinion.

Robert Moore, appellant in case number 90-133 filed with this Court on  September 19, 1990, a document styled, “Appellant’s Response To Motion For Third Enlargement Of Time.” Contained within that submission was a request to this  Court to delay a pending physical examination of Mr. Moore by the Veterans’  Administration (mischaracterizing the Department of Veterans Affairs) (VA). We treat this request as a Motion for Injunction Pending Appeal under Interim  General Rule 8. Having considered the merits of Mr. Moore’s motion, we  determine injunctive relief is not warranted.


Robert Moore, as a result of multiple fractures, is currently rated 90  percent service-connected disabled. On December 4, 1989, the Board of Veterans’ Appeals denied Mr. Moore’s request to increase his disability rating to 100  percent. Robert Moore, loc. no. 933464 (BVA Dec 4, 1989). Several months after Mr. Moore filed a timely notice of appeal with this Court, he received a letter from the VA directing him to report for a physical examination “to determine  whether your disability has improved.” The letter, dated September 10, 1990, warned that failure to report could result in loss of benefits.


Before reviewing the merits of Mr. Moore’s claim we must first determine  whether this Court has jurisdiction to entertain Mr. Moore’s motion. The  results of the requested examination, being new evidence, could have no effect  on Mr. Moore’s pending appeal in this Court. 38 U.S.C. § 4052(b) (1988).  Therefore, the threshold question is whether this Court has jurisdiction to  issue an injunction unrelated to a pending appeal. In Erspamer v. Derwinski,  U.S. Vet. App. No. 89-14 (Feb. 23, 1990), this Court asserted jurisdiction under the All Writs Act, 28 U.S.C. § 1651(a) (1988), to review a request for  extraordinary relief independent of a pending appeal. In Erspamer, the  veteran’s disability claim had been delayed without resolution for over ten  years. The widow of Mr. Erspamer sought mandamus to compel action on her  deceased husband’s claim. In contrast to Erspamer where the veteran’s right to an adjudication was frustrated, Mr. Moore appears to argue he is being  retaliated against for exercising his right of appeal to this Court. If Mr.  Moore’s unsubstantiated allegations are true, the VA’s conduct would, of course, be grossly improper. Cf. North Carolina v. Pearce, 395 U.S. 711, 724 (1969) (“A court is without right to . . . put a price on an appeal. A defendant’s  exercise of a right of appeal must be free and unfettered. “) (quoting Worcester v. Commissioner, 370 F.2d 713, 718 (1st Cir. 1966)); United States v. Jackson,  390 U.S. 570, 581 (1968) (“If the provision had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose  to exercise them, then it would be patently unconstitutional.”)

The All Writs Act authorizes all courts established by Act of  Congress to issue necessary or appropriate writs “in aid of their respective  jurisdictions . . . .” 28 U.S.C. § 1651(a). Mr. Moore’s allegations, if true,  would establish an effort to restrict the jurisdiction of this Court through  intimidation. Therefore, under the All Writs Act, this Court would have  jurisdiction to issue an injunction in defense of our jurisdiction.

Having determined that this Court has jurisdiction to consider Mr. Moore’s  motion, we must decide whether injunctive relief is warranted. To be entitled  to injunctive relief a movant must show an invasion of a legal right,  irreparable injury, and ripeness. See Beacon Theatres, Inc. v. Westover, 359  U.S. 500, 506-507 (1959) (“The basis for injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies.”); Heasley v. United States, 312 F.2d 641, 648 (8th Cir. 1963) (“An injunction (cannot) create a right. It merely protects the rights [a party already has] from unlawful or  injurious interference.”) (quoting Illinois Cent. R.R. Co. v. Illinois Commerce Comm’n, 387 Ill. 256, 272, 56 N.E.2d 432, 439 (Ill. 1944)). We do not believe  movant has met these requirements. First, Mr. Moore must show that the  VA is violating some right which he possesses. As indicated above, Mr. Moore  has a right not to be retaliated against for exercising his right of appeal to  this Court. Mr. Moore could show an invasion of that right if he could  demonstrate that the requested examination was intended as retaliation. There  is, however, no evidence that the planned examination is anything other than a  routine reexamination authorized by 38 C.F.R. § 3.327 (1989). Neither has Mr.  Moore shown that he will suffer irreparable injury. If the reexamination  results in a lowering of his disability rates, the reduction could be appealed  to the BVA and ultimately to this Court.

For the reasons set out above the Motion for Injunctive Relief is denied and the Appellee is ordered to file a Designation of Record on Appeal within 30 days.


CONCUR: I concur in the majority’s excellent opinion and analysis. However, as to the disposition, I would hold in abeyance appellant’s motion to enjoin the  examination of him ordered by the Secretary, temporarily enjoin that examination pending final disposition of the injunction motion, and order the Secretary (l) to show cause why he should be permitted to proceed with the planned  examination pending appeal to this Court on the merits and (2) to submit a  supplemental memorandum responding to appellant’s allegation that the  examination is being ordered as retribution against him for exercising his right of appeal to this Court.

Given the fact that VA has already been granted three extensions to enlarge  the time period for filing a Designation of Record on Appeal and has apparently “misplaced” appellant’s files, appellant has some cause for suspicion here.  Against this background, I think that justice would be best served by requiring the Department to go on record in response to his allegations before we dispose of his motion for injunction.

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