Lefkowitz v. Derwinski

1 Vet. App. 439, 1991 U.S. Vet. App. LEXIS 89, 1991 WL 166280

Opinions

ORDER

PER CURIAM.

The Court has considered the following pleadings: (1) appellant’s January 29, 1991, petition to the Court en banc to establish a class action procedure; (2) the February 8, 1991, motion of the Secretary of Veterans Affairs to consolidate this appeal with the appeal in Harrison v. Derwinski, U.S.Vet.App. No. 90-545 (filed June 28, 1990), for purposes pertaining to said petition; (3) the April 10,1991, response of the Secretary to the petition; and (4) appellant’s June 10, 1991, reply to the Secretary’s response to the petition.

Based on the foregoing, and it appearing to the Court that (1) it lacks the power to adopt a rule of the kind proposed for class actions, see 38 U.S.C. § 7252 (formerly § 4052) (limits the jurisdiction of this Court to the review of Board of Veterans’ Appeals (BVA) decisions); 38 U.S.C. § 7261(c) (formerly § 4061(c)) (no trial de novo); 38 U.S.C. § 7266 (formerly § 4066) (each person adversely affected by such a BVA decision must file a notice of appeal), and, in any event, that (2) such a procedure in this appellate court would be highly unmanageable, and that (3) such a procedure is unnecessary in light of the binding effect of this Court’s published opinions as precedent in pending and future cases, see 38 U.S.C. § 7269(a)-(b) (formerly § 4069(a)-(b)) (decisions of Court have precedential effect); see Webster v. Reproductive Health Serv., 492 U.S. 490, 109 S.Ct. 3040, 3056, 106 L.Ed.2d 410 (1989) {stare decisis is a cornerstone of our legal system); California Dep’t of Health Serv. v. U.S. Dep’t of Health & Human Serv., 853 F.2d 634, 638 (9th Cir.1988) (court of appeals must ordinarily follow its previous decisions absent subsequent change in substantive law); Robinson v. United States, 272 F.2d 554 (D.C.Cir.1959) (ruling of appellate court is binding law unless and until superior tribunal makes determination that strips ruling of validity); M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971) (same), it is

ORDERED that appellant’s petition to the Court en banc to establish a class action procedure is denied. It is further

ORDERED that the Secretary’s motion to consolidate this appeal with the appeal in Harrison is denied as moot. It is further

ORDERED that, not later than 30 days after the date of this order, appellant file a counter designation of the record on appeal.