Kaplan v. Brown

7 Vet. App. 425, 1995 U.S. Vet. App. LEXIS 211, 1995 WL 101647
CourtUnited States Court of Appeals for Veterans Claims
DecidedMarch 10, 1995
DocketNo. 94-611
StatusPublished
Cited by9 cases

This text of 7 Vet. App. 425 (Kaplan v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kaplan v. Brown, 7 Vet. App. 425, 1995 U.S. Vet. App. LEXIS 211, 1995 WL 101647 (Cal. 1995).

Opinion

ORDER

PER CURIAM.

On July 29, 1994, the appellant filed a Notice of Appeal from a June 15,1994, Board of Veterans’ Appeals (Board) decision which denied waiver of recovery of a loan guaranty indebtedness of $4,145.26, plus accrued interest. (In the June 1994 decision, the Board also granted waiver of recovery of a loan guaranty indebtedness of $5,838.12, plus accrued interest.)

On August 15, 1994, the appellant filed a motion to enjoin VA from compounding interest and pursuing debt collection pending a decision on his appeal. On August 22, 1994, the appellant reiterated his request for an injunction. Appended to his pleading was a copy of a VA notice that his debt was being reported to credit reporting agencies as delinquent. On October 3, 1994, the appellant filed another pleading suggesting that VA was in contempt of court. Appended to this pleading was a notice from a debt collection agency that the delinquent loan balance owed to VA had been placed for immediate collection.

On November 29, 1994, in an order by a single judge(*), the Court ordered the Secretary to respond to the appellant’s petition within 30 days. In that response, the Secretary was to provide assurances that VA would not pursue further collection of the indebtedness pending a decision on the appellant’s appeal. On December 29, 1994, the Secretary filed a response to the Court’s order indicating that he had asked “the ap[427]*427propriate finance officers at VA’s Debt Management Center to temporarily suspend collection efforts in this case until the Court has issued a final ruling on whether an injunction was necessary.” The Secretary attached an unsworn affidavit from Mr. David Sturm, an employee of VA’s Debt Management Center in St. Paul, Minnesota, who indicated that he had “directed [his] staff to recall the [appellant’s] account from a private collection agency and to suspend further collection to recover $4,145.26, plus accrued interest.” Mr. Sturm also stated that he had directed that further mail or debt collection activity be suspended through at least December 22, 1995.

In an order issued on January 5, 1995, the Court held that the portion of the appellant’s request seeking to enjoin further debt collection activities by VA or any debt collection agencies was moot. In the January 5, 1995, order, the Court submitted the remaining portion of the appellant’s request, seeking to enjoin the continued accrual of interest on the indebtedness during the pendency of this appeal, to a panel of three judges for decision.

On January 17, 1995, the appellant filed correspondence with the Court, which the Court construed as a motion for reconsideration of the Court’s January 5, 1995, order. The appellant attached to that motion a copy of a letter, dated January 3, 1995, from the Chief of the Operations Division of VA’s Debt Management Center in St. Paul, Minnesota, stating:

You are delinquent on payment of your Loan Guaranty debt in the amount of $6,289.25. We will report this delinquency to the Credit Alert Interactive Voice Response System (CAIVRS) if payment arrangements are not made within the next 30 days. CAIVRS is a system of records which mortgage lenders must access before processing an application for a Government-backed loan.

On January 23, 1995, the Court, by the single-judge(*), granted the appellant’s motion for reconsideration, vacated that portion of the Court’s January 5, 1995, order which had dismissed the appellant’s request for in-junctive relief against further debt collection activities as moot based on the Secretary’s representations, submitted the appellant’s request for injunctive relief against all further debt collection activities to the same panel of three judges assigned to consider the request for injunctive relief against the continued accrual of interest, ordered the Secretary to cease and desist from all further debt collection activities pending further order of the Court, and ordered the Secretary to respond to the appellant’s motion for reconsideration. The Court also ordered the Secretary to include in that response a description of the efforts being undertaken to cease all further debt collection activities in compliance with the order.

On February 7, 1995, the Secretary filed his response to the Court’s January 23, 1995, order. In that response, the Secretary attached declarations from Mr. Sturm and from Mr. Stewart Liff, the Director of the Los Angeles VA Regional Office. In particular, Mr. Sturm indicated that the debt collection activities that were the subject of the appellant’s motion for reconsideration occurred because the entry of a particular computer code (a “dead” diary code) had not prevented the Debt Management Center’s computer system from automatically generating a notice to the appellant of the possible referral to the CAIVRS. In their declarations, Mr. Sturm and Mr. Liff outlined additional measures they had each taken to prevent further debt collection activities.

The Supreme Court has held that “the basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1982) (citations omitted). In order to be entitled to injunctive relief from this Court, a movant carries the burden of establishing (1) a likelihood of success on the merits of the issue of whether a legal right has been invaded by VA action, (2) irreparable injury, and (3) ripeness. See 28 U.S.C. § 1651(a) (All Writs Act); U.S. Vet.App.R. 8; see also FMC Corp. v. United States, 3 F.3d 424, 427 (Fed.Cir.1993) (movant bears burden of establishing elements required for grant of injunctive relief); Glen Raven Mills, Inc. v. [428]*428Ramada International, Inc., 852 F.Supp. 1544, 1547 (M.D.Fla.1994) (movant must clearly carry burden of persuasion on required elements); Moore v. Derwinski, 1 Vet.App. 83, 84 (1990) (interpreting criteria for injunctive relief under Interim General Rule 8) (quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07, 79 S.Ct. 948, 954-55, 3 L.Ed.2d 988 (1959); Heasley v. United States, 312 F.2d 641, 648 (8th Cir.1963)). The decision to grant or deny an injunction is within this Court’s sound discretion. See Prows v. Federal Bureau of Prisons, 981 F.2d 466, 468 (10th Cir.1992). For the sake of thoroughness, we will address each of the requirements for injunctive relief.

Initially, we address that part of the appellant’s request seeking injunctive relief .against further debt collection activities by the Secretary. Based on the Secretary’s assurances in his February 7, 1995, response, that portion of the request for injunctive relief is moot.

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Cite This Page — Counsel Stack

Bluebook (online)
7 Vet. App. 425, 1995 U.S. Vet. App. LEXIS 211, 1995 WL 101647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaplan-v-brown-cavc-1995.