The AMERICAN LEGION, Petitioner, v. R. James NICHOLSON, Secretary of Veterans Affairs, Respondent, 21 Vet. App. 1

GREENE, Chief Judge: Before the Court is The American Legion’s petition for extraordinary relief in the nature of a writ of mandamus. The American Legion maintains that the Secretary, through the Chairman of the Board of Veterans’ Appeals (Board Chairman), acted unlawfully and in violation of the Court’s decision in Ramsey v.

Nicholson, 20 Vet.App. 16 (2006), when the Board Chairman issued Memorandum 01-06-24 (Sept. 21, 2006) [hereinafter Chairman’s Memo.], which implemented a directive by the Secretary to “stay action on and refrain from remanding all claims for service connection based on exposure to herbicides in which the only evidence of exposure is receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam.” Petition (Pet.) at 1.

The purpose of the Chairman’s Memorandum is to stay adjudication of these eases until it is rescinded, or until the VA Office of General Counsel provides advice and instructions to the Board upon resolution of the ongoing litigation in Haas v. Nicholson, 20 Vet.App. 257 (2006), appeal docketed, No. 07-7037 (Fed.Cir. Nov. 2, 2006). See Pet., Exhibit A at 2; see also Chairman’s Memo, at 1.

The American Legion’s petition seeks a Court order directing the Secretary to (1) rescind the stay of proceedings imposed by the Chairman’s Memorandum, and (2) order the Board of Veterans’ Appeals (Board) to decide Naas-like cases forthwith. Pet. at 9. The Secretary filed a response to the petition asserting, inter alia, that The American Legion does not have standing to bring the petition. In response, The American Legion asserts it has standing because it satisfies the three-prong test for associational standing set forth in Hunt v. Washington State Apple Adver.

Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). That test requires an association to show that “(1) its members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Id. On November 14, 2006, the matter was referred to a full-Court panel for oral argument and disposition.

The Court also directed the parties to provide additional memoranda of law to address (1) the third element of the associational standing test — that neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit, and (2) how and on what basis The American Legion, or any veterans service organization (VSO), has standing to petition the Court under the All Writs Act (AWA), 28 U.S.C. § 1651(a). The Court heard oral argument on December 6, 2006. For the reasons set forth below, the petition will be dismissed. I.

THE PARTIES’ ARGUMENTS The American Legion contends that it has standing as a Petitioner because it satisfies the three-prong test for associational standing as follows:

(1) It has more than 2.6 million members who are former members of the U.S. Armed Forces, some of whom have claims pending before the Board that are subject to the stay challenged in the petition; (2) one of its organizational purposes is protecting veterans’ rights to VA benefits; and (3) the relief sought is prospective and equitable in nature, and the remedy, if granted, would “ ‘inure to the benefit of those members of the association actually injured.’ ” Petitioner’s Memorandum of Law (Memo, of Law) at 8-10 (quoting Hunt, 432 U.S. at 343, 97 S.Ct. 2434).

The American Legion also argues that because the third element of the associational standing test is purely prudential and a matter of judicial efficiency, see United Food & Commer. Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 558, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996), its request for equitable relief pursuant to the AWA does not implicate the prudential interests protected by the third prong of the test. Memo, of Law at 4-5.

In response, the Secretary argues that Hunt, and its progeny, permit associational standing only when such standing has not been proscribed by statute and the three-prong test is satisfied. Secretary’s Memo, of Law at 2. The Secretary does not contest that The American Legion satisfies the first two prongs of the associational standing test.

Rather, the Secretary asserts that because the Court’s jurisdiction is limited to review of final Board decisions and only a “person adversely affected” by that Board decision may file an appeal with the Court, the statutes governing the Court’s jurisdiction exclude the type of associational standing asserted by The American Legion, and require the participation of individual claimants in all actions before the Court. Id. at 10; see 38 U.S.C. §§ 7252 and 7266(a).

The Secretary maintains that the AWA permits the Court to issue extraordinary writs only in aid of its prospective jurisdiction, but may not expand that jurisdiction. Therefore, because The American Legion could never appeal an adverse Board decision.regarding the entitlement to benefits under the laws administered by the Secretary, similarly, it is not a proper party to bring a petition pursuant to the AWA. II. LAW AND ANALYSIS In 1989, Congress established this Court under

Article I of the U.S. Constitution to provide our nation’s veterans and their families with independent judicial review of Board decisions. As an

Article I Court, we are not constitutionally bound by the case or controversy restraints of

Article III courts. See 38 U.S.C. § 7251; Mokal v. Derwinski, 1 Vet.App. 12, 14 (1990); see also Nolan v. Nicholson, 20 Vet.App. 340, 348-49 (2006). We have held, however, that as a matter of policy, we “will adhere to the case or controversy jurisdictional restraints adopted by

Article III courts.” Mokal, 1 Vet.App. at 13. It does not necessarily follow, though, that, by adhering to the case or controversy restraints of

Article III courts, we are thus bound to apply the doctrine of associational standing in this Court as argued by The American Legion. Based on the following, we hold that, because Congress did not intend for this Court’s jurisdiction to expand beyond addressing appeals filed by individual claimants adversely affected by final Board decisions, we are not permitted to go beyond the jurisdictional statute set forth by Congress and allow for associational standing. A. 38 U.S.C. §§ 7252(

a) and 7266(

a) The Court’s jurisdiction is governed by 38 U.S.C. §§ 7252(

a) and 7266(a). Pursuant to

section 7252(a), this Court “shall have exclusive jurisdiction to review decisions of the Board of Veterans’ Appeals.” Further,

section 7266(

a) specifically states that only a “person adversely affected by such decision shall file a notice of appeal” with the Court. 38 U.S.C. § 7266(a) (emphasis added). Although the plain language of this statute clearly indicates that Congress granted a right of action to a “person adversely affected” by a final Board decision, the meaning of “person” as used in this

section is not defined in title 38, nor has the Secretary provided any regulatory definition. Thus, we will review the statutory scheme and the legislative history of the Veterans Judicial Review Act (VJRA), Pub.L. 100-687, title III, sec. 301, 102 Stat. 4113, to determine whether, as the Secretary suggests, Congress expressed an intent to limit the exercise of the Court’s jurisdiction. See King v. St. Vincent’s Hosp., 502 U.S. 215, 221, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991) (when interpreting a statute, the Court is required to look at the context and the provisions of law as a whole); see also Gardner v.

Derwinski, 1 Vet.App. 584, 586 (1991) (“Determining a statute’s plain meaning requires examining the specific language at issue and the overall structure of the statute.”), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456, 1456 (Fed.Cir.1993), aff'd, 513 U.S. 115, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994); 2A N. Singer, SUTHERLAND on Statutory Construction 46:05 (6th ed.2000) (“each part or

section of a statute should be construed in connection with every other part or

section so as to produce a harmonious whole” and a “court will not only consider the particular statute in question, but also the entire legislative scheme of which it is a part”). 1. Legislative History of the VJRA The legislative history of the VJRA reveals that when Congress initially considered providing judicial review for veterans, its focus was on the individual right of the veteran or claimant to seek review of a final Board decision. See Blum v.

Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) (noting that discerning Congress’s intent can be accomplished by reviewing the legislative history of a statute).

Specifically, when Senator Alan Cranston of California introduced Senate Bill 11, Veterans’ Administration Adjudication Procedure and Judicial Review Act, to the full Senate in 1987, he stated that the basic purpose of the proposed legislation was to “ensure that veterans and other claimants before the VA [would] receive all benefits to which they are entitled under law by providing them with the opportunity for judicial review of final decisions of the Administrator of Veterans’ Affairs, or those acting for him.” 133 Cong. Reo. S 223 (daily ed. Jan. 6, 1987).

Further, he noted that judicial review would “ensure fairness to individual claimants before the VA.” Id. (emphasis added). The legislative intent to limit review in this Court to final Board decisions on appeals of individual claimants is also evident from Senator Cranston’s testimony before the U.S. Senate Committee on Veterans’ Affairs.

On April 28, 1988, he described Senate Bill 11 as legislation that would “provide an opportunity for a veteran to seek judicial review of a final decision of the Board.” United States Senate Legislative Hearing on S. 11 — ‘Veteran’s Administration Adjudication Procedure and Judicial Review Act” and “S. 2292 — Veteran’s Judicial Review Act,” 100th Cong. (1988). Senator Cranston reiterated the importance of ensuring “fairness to individual claimants before VA” and the need for review of “questionable agency actions restricting, withholding, or withdrawing VA benefits.” Id. (emphasis added).

Senator Cranston stated that “if the veterans directly ajfected by various VA actions have access to [a] court to challenge these actions, they would be guaranteed the opportunity to be heard by an entity outside of the VA and, in certain cases, to obtain urgent and timely relief.” Id. (emphasis added). Following the Senate’s consideration of both bills, Senator Cranston again appeared before the full Senate to present the compromise agreement, Senate Bill 11. See 134 Cong. Reo. S9184 (daily ed. July 11, 1988).

In outlining the procedure for judicial review, Senator Cranston noted that “judicial review would be available only after a veteran’s claim has been turned down by a VA regional office and, on appeal, by the Board.” Id. (emphasis added). Notably absent from the legislative history of the VJRA is any expression of intent to allow VSOs to seek judicial review in their own right on behalf of their members through appeal to this Court.

Rather, Congress clearly outlined the role VSOs would continue to play in the VA adjudicative processes in other statutory provisions that are outlined below, particularly, the statutory provisions governing filing an appeal with the Board and the Court, as well as filing challenges to VA rulemaking exclusively with the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). 2. Appeals to the Board An appeal to the Board of a VA regional office (RO) decision is initiated by filing a Notice of Disagreement (NOD) and is completed by filing a Substantive Appeal. See 38 U.S.C. § 7105(a).

When a claim is properly appealed to the Board, the Board is vested with the jurisdiction to review “[a]ll questions in a matter which under

section 511(

a) of [title 38] is subject to a decision of the Secretary.” 38 U.S.C. §§ 7104(a), 7105(a); see also Jarrell v. Nicholson, 20 Vet.App. 326, 331 (2006) (en banc); Bernard v. Brown, 4 Vet.App. 384, 390-91 (1993). An RO decision can only be appealed to the Board through the timely filing of an NOD by “the claimant, the claimant’s legal guardian, or such accredited representative, attorney, or authorized agent.” 38 U.S.C. § 7105(b)(2).

Section 5100 of title 38, U.S.Code, defines “claimant” as “any individual applying for, or submitting a claim for, any benefit under the laws administered by the Secretary.” Jarrell, 20 Vet.App. at 330 (emphasis added); see also 38 U.S.C. § 5100. When a claim is withdrawn by the person seeking benefits it “ceases to exist.” Hanson v. Brown, 9 Vet.App. 29, 32 (1996). Hence, without a potential beneficiary, there is nothing to pursue. Based upon the foregoing, we conclude that “claimant” as used in

section 7105(

a) is the individual applicant seeking to appeal a decision of a claim for a VA benefit under title 38. Similarly, for a compensation claim under 38 U.S.C. § 1110, only a person asserting entitlement to benefits under title 38 can be a claimant/appellant for purposes of

section 7105(a). See 38 C.F.R. § 20.301 (2006) (stating that an NOD or a Substantive Appeal may only be “filed by a claimant personally, or by his or her representative if a proper Power of Attorney or declaration of representation, as applicable, is on record”). Therefore, the Board does not have jurisdiction to consider an appeal by The American Legion seeking benefits on behalf of its individual members. See Jarrell, 20 Vet.App. at 334 (dismissing appeal from adverse Board decision where Board initially lacked jurisdiction to decide the matter). 3.

Congress’s Defined Role for VSOs Congress expressly created, under 38 U.S.C. § 5902, a specific, limited role for The American Legion within the VA adjudication process. That provision identifies The American Legion by name as a VSO entitled to act “as the claimant’s representative.” 38 U.S.C. § 5902(c).

Given that Congress has explicitly defined The American Legion as having the power to represent claimants, it would be inconsistent with the plain language and legislative history of 38 U.S.C. § 7266 to find that Congress also intended to provide VSOs authority to independently pursue appeals before the Board or the Court. See 38 U.S.C. § 5902(b) (setting forth specific requirements for VSO to provide representation before the Secretary); see also Meeks v. West, 12 Vet.App. 352, 354 (1999) (“ ‘[Ejach part or

section [of a statute] should be construed in connection with every other part or

section so as to produce a harmonious whole.’ ” (quoting 2A N. Singer, Sutherland on Statutory Construction § 46.01 (5th ed.1992))). We also observe that, at approximately the same time Congress established this Court’s jurisdiction, it also considered and later explicitly provided to the Federal Circuit exclusive jurisdiction to hear challenges concerning VA rulemak-ing. See 38 U.S.C. § 502. In drafting this statute, Congress clearly set forth the role of the VSOs in this process. Specifically, 38 U.S.C. § 502 provides: An Action of the Secretary to which

section 552(a)(1) or 553 of title 5 (or both) refers ... is subject to judicial review. Such review shall be in accordance with

chapter 7 of title 5 and may be sought only in the United States Court of Appeals for the Federal Circuit. However, if such review is sought in connection with an appeal brought under the provisions of

chapter 72 of this title, the provisions of that

chapter shall apply rather than the provisions of

chapter 7 of title 5.

Chapter 7 of title 5 sets forth the procedure for judicial review under the Administrative Procedure Act.

Section 702 provides that “a person suffering legal wrong because of agency action or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” The

definitions set forth in 5 U.S.C. § 551 apply to the provisions of 5 U.S.C. § 702; therefore, a “person” under

section 702 includes an “individual, partnership, corporation, association, or public or private organization other than an agency.” 5 U.S.C. § 551(2); see 5 U.S.C. § 701. Thus, Congress established that an association such as a VSO, under 38 U.S.C. § 502, would have standing to raise a challenge in its own right before the Federal Circuit, without regard as to whether it met the criteria for the associational standing test.

We conclude that by specifically designing the statute to address the role of the VSOs, Congress intended VSOs to have standing in their own right before the Federal Circuit and not this Court. Congress has limited the role of the VSOs before this Court, and the Board, to act only as representatives authorized to assist individual claimants pursuing their appeals of adverse VA decisions, and not as a proper “party” that may appeal to the Board and thereafter the Court.

This conclusion is further supported by the fact that the Federal Circuit, this Court, and VA have repeatedly recognized that a “person adversely affected by a [final Board decision]” is the individual claimant that initiated the claim before VA and ultimately continued an appeal of VA’s decision on that claim to the Court. See Landicho v. Brown, 7 Vet.App. 42 (1994) (holding that when a veteran dies while an appeal of the denial by the Board of his or her claim for disability compensation under

chapter 11 of title 38, U.S.Code, is pending, the appropriate remedy is to vacate the Board decision from which the appeal was taken and to dismiss the appeal); see also Zevalkink v.

Brown, 102 F.3d 1236, 1243-44 (Fed.Cir.1996) (upholding this Court’s decision refusing to substitute an accrued-benefits claimant in the place of a deceased appellant); Nolan, 20 VetApp. at 349-50 (denying daughter’s motion to substitute herself and pursue her deceased mother’s appeal for accrued benefits before the Court, noting that in order to have standing in this Court, parties must “personally ha[ve] suffered some actual or threatened injury as a result of the putative illegal conduct”); cf. 38 C.F.R. § 20.3(g) (2006) (defining “claimant” as a “person who has filed a claim”); 38 C.F.R. § 20.301 (stating that an NOD or a Substantive Appeal may only be “filed by a claimant personally, or by his or her representative if a proper Power Of Attorney or declaration of representation, as applicable, is on record”).

B. AWA Authority Although The American Legion argues that the AWA does not impede its ability to establish associational standing, we conclude otherwise because the AWA is limited by our jurisdictional statute.

Pursuant to the AWA, the Court has the authority to issue extraordinary writs in aid of its prospective jurisdiction. 28 U.S.C. § 1651(a). “[JJurisdiction to issue a writ of mandamus pursuant to the AWA relies upon not actual jurisdiction but potential jurisdiction.” In re Fee Agreement of Cox, 10 Vet.App. 361, 370 (1997) (Fee Agreement of Cox I), vacated on other grounds, 149 F.3d 1360 (Fed.Cir.1998) (Fee Agreement of Cox II) (emphasis in original).

This Court’s appellate jurisdiction derives exclusively from statutory grants of authority provided by Congress as outlined above and may not be extended beyond that permitted by law. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988). Indeed, “we must construe jurisdictional statutes narrowly and ‘with precision and with fidelity to the terms by which Congress has expressed its wishes.’ ” Bailey v. West, 160 F.3d 1360, 1363 (Fed.Cir.1998) (quoting Cheng Fan Kwok v. INS, 392 U.S. 206, 212, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968)).

Thus, the Court has jurisdiction to issue a writ of mandamus only if granting the petition could lead to a final Board decision for the petitioner over which the Court would have jurisdiction. See Fee Agreement of Cox II, 149 F.3d at 1363. In this case, The American Legion does not have standing to obtain the relief sought on behalf of all of its potentially affected members because it could not, in its own right, obtain such a final Board decision. The Federal Circuit’s analysis in Reid v. Dep’t of Commerce, 793 F.2d 277, 278 (Fed.Cir.1986) is also instructive.

The result in this case would be the same as in Reid — The American Legion would not have standing. Given the limiting language of our jurisdictional statutes, we would conclude that Congress has exercised its legislative prerogative to impose a prudential limitation on the exercise of our jurisdiction over adverse decisions of the Board, and as such, The American Legion has not met the third criterion of the associational standing test. To reach this conclusion, we recognize that while the first two prongs of the test are required under

Article III of the U.S. Constitution, the Supreme Court has held that the third prong of the test is not constitutional in nature, but rather one developed in the interest of administrative convenience and efficiency; and, thus, as a prudential rule “of judicial self-governance,” Congress may revoke this last requirement by statute. United Food & Commer. Workers Local 751, 517 U.S. at 558, 116 S.Ct. 1529 (noting that union could establish associational standing regardless of third requirement because Congress had specifically authorized unions to sue for its members’ damages). Indeed, as the Federal Circuit observed in Reid, [w]here the actual or threatened injury required by

Article III exists solely by virtue of statutes creating legal rights which have been invaded, the standing question depends on whether the statutory provision on which the claim rests properly can be understood as granting persons in the litigant’s position a right to judicial relief. 798 F.2d at 280 n. 7 (citing Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). In Reid, the Federal Circuit concluded that a union’s standing to appeal a Merit Systems Protection Board (MSPB) determination to the Federal Circuit was predicated on the union’s having standing before the MSPB. Id. at 283.

In reaching its conclusion, the Federal Circuit examined the plain language of the statutes involved and found that Congress’s use of the word “employee” instead of “person,” and the separate statutory

definitions for both terms indicated that by using “employee” in the jurisdictional statute for pursuing appeals of adverse decisions of the MSPB, Congress had “exercised its legislative prerogative to impose a prudential limitation on the exercise of [the Federal Circuit’s] jurisdiction over adverse decisions of the MSPB.” 793 F.2d at 283-84. On this basis, the Federal Circuit concluded that Congress intended that only individual employees pursue an appeal from MSPB determinations, and, therefore, the third prong of the Hunt associational standing test was not satisfied. Id. The same is true here.

Congress clearly intended that only individuals adversely affected by a final Board decision appeal to the Court. Therefore, Congress has acted to “impose a prudential limitation” on the exercise of our jurisdiction, just as it did in establishing the Federal Circuit’s jurisdiction over MSPB determinations. III. CONCLUSION Upon review of the plain text of the statute, along with the statutory scheme of title 38, and the legislative history of the VJRA, we conclude that Congress has expressly limited our jurisdiction to addressing only appeals and petitions brought by individual claimants.

Therefore, although The American Legion’s petition for extraordinary relief asks the Court to resolve a purely legal issue, granting a VSO standing, even in the context of the AWA, would impermissibly expand our jurisdiction beyond that which Congress intended. Because The American Legion lacks standing to bring an appeal from an adverse Board decision to the Court, it similarly lacks standing to bring a petition because a decision on that matter would not aid in our jurisdiction over The American Legion. The American Legion’s pleadings in this matter are accepted as amicus curiae in Ribaudo v. Nicholson, U.S.

Vet.App. No. 06-2762 (Argued Dec. 6, 2006). Accordingly, upon consideration of the foregoing, the petition for extraordinary relief in the nature of a writ of mandamus is DISMISSED.