NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-7182
JOE A. BROWDER, JR.,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
____________________________
DECIDED: May 2, 2006
____________________________
Before LOURIE, RADER, and PROST, Circuit Judges.
PER CURIAM.
DECISION
Joe A. Browder, Jr. (“Browder”) appeals from the final decision of the United
States Court of Appeals for Veterans Claims (the “Veterans Court”) dismissing for lack
of jurisdiction in part and as moot in part his petition for extraordinary relief in the nature
of a writ of mandamus. Browder v. Nicholson, No. 05-1253 (Vet. App. July 19, 2005)
(“Decision”). Because the Veterans Court lacked jurisdiction to issue a writ of
mandamus ordering the Secretary to change Browder’s fiduciary, we affirm.
BACKGROUND
Browder, a 44 year old veteran who received an honorable discharge, was
evaluated by the Veterans Administration1 (“VA”) on February 11, 2002. The VA
examiner reported his impression that Browder had major depression with psychosis,
noting that Browder last worked in 1993 and had been arrested on 60 different
occasions. The examiner also stated that it was “quite unlikely that [Browder] would be
able to manage his benefit payments in his own best interests considering his history
and considering psychological tests.” On April 16, 2002, the VA Regional Office (“RO”)
proposed to make a determination that Browder was mentally incompetent for VA
purposes. On April 26, 2002, the VA informed Browder of this proposed action. Three
days later, Browder accepted the proposed finding of incompetency and requested that
his mother be appointed as his fiduciary. On May 10, 2002, the RO determined that
Browder was incompetent for VA purposes. On August 15, 2002, the VA appointed
Kenneth V. Anderson, Jr. (“Anderson”), Public Guardian for McCracken County,
Kentucky, to act as Browder’s fiduciary.
On May 10, 2005, Browder filed a pleading in the Veterans Court asserting that
the RO had denied his attempt to “change [his] fiduciary from Kenneth Anderson . . . to
[his] oldest son, Jason Alexander Browder.” Decision, slip op. at 1. He also contended
that when he attempted to appeal the RO decision to the Board of Veterans’ Appeals
(the “Board”), it “declined jurisdiction based on [his] case before the [Veterans] Court.”
Id. Browder requested that the Veterans Court order the Secretary to notify him of the
status of his claims filed at the RO in February and/or March 2005. Id.
1
The Veterans Administration was renamed the Department of Veterans Affairs in
1988. Department of Veterans Affairs Act, Pub.L. No. 100-527, 102 Stat. 2635 (1988).
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The Veterans Court construed Browder’s pleading as a petition for extraordinary
relief in the nature of a writ of mandamus. Id. In response to Browder’s petition, the
Secretary asserted that the Secretary has the sole responsibility of choosing the most
appropriate fiduciary. Id. The Secretary also reported on the status of the claims that
Browder had filed in February and/or March 2005. Id.
The Veterans Court dismissed Browder’s petition for lack of jurisdiction in part
and as moot in part. Id., slip op. at 2. First, the court held that Browder had failed to
demonstrate that the court had jurisdiction to issue a writ of mandamus ordering the
Secretary to allow Browder to change his fiduciary duty. Id. Second, the court held that
Browder’s request for notification regarding his February and/or March 2005 claims filed
at the RO was moot because the Secretary reported on the status of those claims in the
Secretary’s response to the petition. Id.
Browder timely appealed the Veterans’ Court dismissal on jurisdictional grounds
to this court, and we have jurisdiction pursuant to 38 U.S.C. § 7292.
DISCUSSION
We have limited jurisdiction to review a decision of the Veterans Court. We
cannot, absent a constitutional issue, review a challenge to a factual determination or a
challenge to a law or regulation as applied to the facts of a particular case. 38 U.S.C. §
7292(d)(2) (2000). We may, however, review the validity of “a rule of law or of any
statute or regulation . . . or any interpretation thereof . . . that was relied on by the
[Veterans] Court in making the decision.” 38 U.S.C. § 7292(a) (2000). Such legal
determinations of the Veterans Court are reviewed without deference. Prenzler v.
Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991). Whether the Veterans Court had
05-7182 -3-
jurisdiction to issue a writ of mandamus to compel the Secretary to change Browder’s
fiduciary is a question of law.
On appeal, Browder argues that the Veterans Court erred in failing to consider
information in his reply brief to that court, which was returned for being nonconforming.
The reply brief alleged that Anderson did not inform him of letters that Anderson had
received concerning Browder’s VA benefits; Browder claimed that that was for the
purpose of embezzling Browder’s money. Browder also contends that his agreement to
the incompetency rating was contingent upon the appointment of a relative as a
fiduciary, and that the RO abused its discretion in appointing Anderson as Browder’s
fiduciary. Browder further asserts that even if the Secretary had sole discretion to
appoint Browder’s fiduciary, that discretion was abused.
The government responds that the Veterans Court correctly held that it lacked
jurisdiction to issue a writ of mandamus in the present circumstances. According to the
government, the Veterans Court does not have authority to review decisions made by
the Secretary that are entirely discretionary, such as the Secretary’s appointment of a
fiduciary. The government also asserts that the information in Browder’s reply brief did
not provide a basis for reversing the decision of the Veterans Court because the
Secretary had complete discretionary authority in the appointment of Browder’s
fiduciary.
We agree with the government that the Veterans Court lacked jurisdiction over
Browder’s petition for extraordinary relief in the nature of a writ of mandamus. Under
the All Writs Act, 28 U.S.C. § 1651(a), “all courts established by act of Congress may
issue all writs necessary or appropriate in aid of their respective jurisdiction.” The
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Veterans Court’s jurisdiction to issue a writ of mandamus pursuant to the AWA relies
not upon actual jurisdiction, but upon potential jurisdiction. Yi v. Principi, 15 Vet. App.
265, 267 (2001). “[The Veterans] Court's jurisdiction to issue the order sought by the
petitioner depends upon whether the Court would have jurisdiction to review the final
Board decision that would issue pursuant to that order.” Id. (citing In re Fee Agreement
of Cox, 10 Vet. App. 361, 371 (1997)). Here, the Veterans Court lacked appellate
jurisdiction over the Secretary’s appointment of Browder’s fiduciary because the
granting of the petition could not lead to a Board decision over which the Veterans Court
would have jurisdiction.
The Veterans Court generally does not have authority to review decisions made
by the Secretary that are entirely discretionary and not subject to review by the Board.
See Willis v. Brown, 6 Vet. App. 433, 435-36 (1994) (dismissing for lack of jurisdiction a
challenge to the Secretary’s appointment of a veteran’s fiduciary). As the Veterans
Court stated in Darrow v. Derwinski, 2 Vet. App. 303 (1992), “[e]ven where Congress
has not affirmatively precluded review, review is not to be had if the statute is drawn so
that a court would have no meaningful standard against which to judge the agency’s
exercise of discretion.” Id. at 306.
Here, there is no statutory grant of jurisdiction to the Board to review the
appointment of a fiduciary by the Secretary pursuant to 38 U.S.C. § 5502(a)(1), and
Congress has not established any standards by which to judge the Secretary’s
appointment of fiduciaries. 38 U.S.C. § 5502(a)(1) provides that the Secretary is
authorized to assign a fiduciary duty in the best interest of the beneficiary: “[w]here it
appears to the Secretary that the interest of the beneficiary would be served thereby,
05-7182 -5-
payment of benefits . . . may be made directly or to a relative or some other fiduciary for
the use and benefit of the beneficiary.” 38 C.F.R. § 13.55(a) further provides that “[t]he
Veterans Service Center Manager is authorized to select and appoint . . . the person or
legal entity best suited to receive [VA] benefits in a fiduciary capacity for a beneficiary.”
Because the Secretary’s decision to appoint Browder’s fiduciary was entirely
discretionary, the Board would not have jurisdiction over Browder’s challenge to that
appointment. The Veterans Court therefore did not have jurisdiction to grant Browder’s
petition for extraordinary relief in the nature of a writ of mandamus.
We have considered Browder’s remaining arguments and find them
unpersuasive. Because the Veterans Court lacked jurisdiction to issue a writ of
mandamus ordering the Secretary to change Browder’s fiduciary, we affirm.
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