Patterson v. Brown

5 Vet. App. 362, 1993 U.S. Vet. App. LEXIS 321, 1993 WL 286553
CourtUnited States Court of Appeals for Veterans Claims
DecidedJuly 30, 1993
DocketNo. 91-1668
StatusPublished
Cited by21 cases

This text of 5 Vet. App. 362 (Patterson 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
Patterson v. Brown, 5 Vet. App. 362, 1993 U.S. Vet. App. LEXIS 321, 1993 WL 286553 (Cal. 1993).

Opinion

MANKIN, Judge:

On October 30, 1991, the Court ordered that proceedings in appellant’s appeal of a July 9, 1991, Board of Veterans’ Appeals (Board or BVA) decision denying a waiver of recovery of loan guarantee indebtedness be stayed temporarily while appellant pursued reconsideration of his case at the BVA. On November 21, 1991, the Chairman of the BVA (Chairman) denied appellant’s motion for reconsideration. On December 16, 1991, appellant requested that the Court review the Chairman’s denial of the motion for reconsideration. By order of February 7, 1992, the Court lifted the stay of proceedings entered on October 30, 1991, and ordered appellant to file a brief statement of issues pursuant to U.S.Vet. App.R. 6. Patterson v. Derwinski, 2 Vet.App. 164 (1992). In addition, the Court ordered the parties to submit memoranda of law on the question of “whether this Court may review the decision of the Chairman to deny appellant’s motion for reconsideration. ...” On February 19, 1992, the jurisdictional issue was referred to this panel and the Court issued an order invit-ing interested parties to submit memoran-da of law addressing this issue. By order dated March 30, 1992, the Court granted a motion filed by the Secretary of Veterans Affairs (Secretary) to stay proceedings in the appeal until resolution of the consolidated appeals then pending before the en banc Court in Russell v. Derwinski, and Collins v. Derwinski, 2 Vet.App. 678 (1992). On October 27, 1992, after the issuance of a decision in the consolidated appeals, the stay in the instant case was lifted and the Secretary was ordered and amici curiae were invited to file briefs.-

I. ANALYSIS

This case presents the Court with two questions: whether this Court’s jurisdiction extends to review of decisions of the Chairman to deny an appellant’s motion for reconsideration and, if so, under what circumstances may the Court exercise such jurisdiction. This Court’s appellate jurisdiction derives exclusively from the statutory grant of authority provided by Congress, and the Court may not extend its jurisdiction beyond that permitted by law. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178,100 L.Ed.2d 811 (1988); see also Prenzler v. Derwinski, 928 F.2d 392 (Fed. Cir.1991); Skinner v. Derwinski, 1 Vet. App. 2 (1990). Title 38, United States Code Annotated, section 7252(a) (West 1991) provides this Court with “exclusive jurisdiction to review decisions of the [BVA].” The Chairman’s authority to order reconsideration of prior BVA decisions stems from 38 U.S.C.A. § 7103(a) and (b) (West 1991) which provide:

(a) Decisions by a section of the Board shall be made by a majority of the members of the section. The decision of the section is final unless the Chairman orders reconsideration of the case.
(b) If the Chairman orders reconsideration in a case, the case shall upon reconsideration be heard by an expanded section of the Board. When a case is heard by an expanded section of the Board after such a motion for reconsideration, the decision of a majority of the mem[364]*364bers of the expanded section shall constitute the final decision of the Board.

Once a motion for reconsideration has been filed, the Chairman reviews the allegations set forth in the motion and denies or grants the motion depending upon the sufficiency of the allegations. 38 C.F.R. § 20.1001 (1992). Department of Veterans Affairs (VA) regulations provide three bases for ordering reconsideration — obvious error of fact or law, certain new and material evidence, and false or fraudulent evidence. 38 C.F.R. § 20.1000. See Breslow v. Derwinski, 1 Vet.App. 359, 361 (1991); Rosier v. Derwinski, 1 Vet.App. 240, 241 (1991); Cerullo v. Derwinski, 1 Vet.App. 195, 200 (1991). If the motion is granted, then appellant is afforded a period of sixty days in which to present additional arguments or evidence to the reconsideration panel. 38 C.F.R. 20.1001(c)(2). After the reconsideration process has taken place and the Board issues a new and final order adverse to the veteran, the order is reviewable by this Court on its merits even if the order merely reaffirms the rights and obligations set forth in the original decision. I.C.C. v. Locomotive Engineers, 482 U.S. 270, 278, 107 S.Ct. 2360, 2365, 96 L.Ed.2d 222 (1987); see also United States v. Seatrain Lines, 329 U.S. 424, 432, 67 S.Ct. 435, 439, 91 L.Ed. 396 (1947); Rosler, 1 Vet.App. at 245.

The Secretary argues that the Court is precluded from reviewing the Chairman’s denial of reconsideration because this type of review is outside the scope of jurisdiction defined in 38 U.S.C.A. § 7252 (West 1991). He states that the Court has construed this statutory provision to limit the Court’s jurisdiction to review of final BVA decisions exclusively. See Harris v. Derwinski, 1 Vet.App. 180, 182 (1991) (holding that, “[r]ead together, § 7252(a) and § 7266(a) [requiring filing of Notice of Appeal (NOA) 120 days after mailing of BVA decision in order to obtain Court review] require that a claimant seeking to appeal to the Court must have a final BVA decision.” (emphasis in original)); see also Bond v. Derwinski, 2 Vet.App. 376, 377 (1992); Hartog v. Derwinski, 2 Vet.App. 195, 196 (1992).

The Secretary argues, in the alternative, that if the Court determines that it does have jurisdiction to review the Chairman’s denial of reconsideration, then jurisdiction is limited by the Supreme Court’s holding in Locomotive Engineers, 482 U.S. 270. In that case the Supreme Court held that an agency’s denial of a petition to reconsider a prior order was not subject to judicial review in the absence of allegations in the1 petition of new evidence or changed circumstances. Id.

Even if it were unclear that the phrase “decisions of the Board of Veterans’ Appeals,” as used in 38 U.S.C.A. § 7252(a), extends to decisions of the Chairman to deny reconsideration, when the statute is read in conjunction with § 7261(a)(3), it becomes apparent that Congress intended that such decisions be subject to judicial review. Section 7252(b) expressly incorporates § 7261 by stating that “the extent of the review [by the Court] shall be limited to the scope provided in section 7261 of [title 38].” Section 7261, which is titled “Scope of review,” provides that

The Court of Veterans Appeals, to the extent necessary to its decision and when presented, shall—
(3) hold unlawful and set aside decisions, findings ..., conclusions, rules, and regulations issued or adopted by

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Bluebook (online)
5 Vet. App. 362, 1993 U.S. Vet. App. LEXIS 321, 1993 WL 286553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patterson-v-brown-cavc-1993.