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11 min read

Prewitt v McDonough Case About Extraordinary Relief

picture of a court case Extraordinary Relief

George D. Prewitt, Jr. has taken legal action by filing a petition for extraordinary relief against Denis McDonough, the Secretary of Veterans Affairs. Prewitt's case was sent back to the Board of Veterans' Appeals (Board) after the Court of Appeals for Veterans Claims declined to address his constitutional arguments. Prewitt firmly believes that there are structural constitutional issues that prevent the Board from properly adjudicating his case, and he is urging the Court to intervene and resolve these concerns. However, the Court has denied Prewitt's petition, stating that he has other options for relief and has not provided sufficient justification or unique circumstances to warrant reconsideration of the decision. It is worth noting that Prewitt's petition for extraordinary relief does not meet the requirements of Rule 21, which demands a clear statement of the relief sought, the necessary facts to understand the issues, and the reasoning behind why the Court should grant the petition. The Court has determined that Prewitt has not demonstrated a legitimate entitlement to extraordinary relief, even if we overlook his failure to explain why he has an indisputable right to the writ. Additionally, the Court points out that the Board has already been instructed to address Prewitt's constitutional challenges, making this case no different from others in terms of its proceedings. Therefore, the Court has not only denied Prewitt's motion to amend his petition but has also rejected his petition for extraordinary relief. Judges Falvey and Jaquith concur with the Court's opinion, with Judge Falvey specifically noting that Prewitt has not shown a lack of alternative means to obtain the desired relief.

The Court further dismisses Prewitt's request for extraordinary relief, stating that he has not provided sufficient evidence of exceptional circumstances or good cause to warrant a recall of the mandate. In support of its decision, the Court cites several relevant cases, including Sagnella v. Principi, Smith v. Shinseki, and McNaron v. Brown. Judges Falvey and Jaquith concur with the Court's opinion, with Judge Falvey noting that Prewitt has not demonstrated a lack of alternative means to seek the desired relief. Prewitt argues that the Board of Veterans' Appeals is structured in violation of the Constitution, rendering its decisions invalid. Specifically, Prewitt contends that the appointments of Board members violate the Appointments Clause, as they lack meaningful oversight from the executive branch. However, the Court rejects this argument, referencing the Supreme Court's ruling in Arthrex, which designates the Court of Appeals for Veterans Claims as an executive branch entity. The Court emphasizes that this statement in Arthrex is not mere dicta but a crucial aspect of the Supreme Court's legal reasoning. Furthermore, the Court asserts that it exercises executive power rather than judicial power, as mandated by constitutional law. To support this claim, the Court cites various relevant cases, including City of Arlington v. FCC and INS v. Chadha. Additionally, the Court argues that it cannot exercise judicial power since it does not meet the requirements outlined in Article III of the Constitution. Instead, the Court asserts that it acts as an Article I tribunal, functioning under the "public rights" doctrine, which grants it the authority to resolve disputes between the government and individuals subject to its jurisdiction. Consequently, the Court concludes that the Board of Veterans' Appeals, as an executive branch entity, does not violate the Appointments Clause. 

The Court engages in a thorough analysis of the landmark case Freytag v. Comm'r of Internal Revenue, previously relied upon to assert its exercise of "the judicial power of the United States."

The Court contends that a continued interpretation of Freytag in this manner is no longer viable in light of subsequent Supreme Court rulings, such as Stern v. Marshall and Oil States Energy Services v. Greene's Energy Group, which establish that only Article III courts possess such power.

The Court asserts that it does exercise a type of administrative "judicial power" in the sense of examining facts and applying the law, but not in the sense of Article III's "judicial power of the United States."

Furthermore, the Court argues that its adjudicative responsibilities, including the resolution of cases and the establishment of precedents, do not amount to exercises of the judicial power of the United States under Article III.

Ultimately, the Court acknowledges the possibility of having erred in its previous interpretation of Freytag, as the Court of Appeals for the D.C. Circuit has clarified that Freytag employed the phrase "judicial power" in an "enlarged sense" to encompass non-Article III adjudications.

In addition to the discussion on Freytag, the Court also examines the case of Arthrex, Inc. v. Smith & Nephew, Inc., which held that an Appointments Clause violation occurs when an officer lacking nomination and Senate confirmation possesses the authority to render final decisions on behalf of the United States without proper review by a principal officer in the Executive Branch.

The Court contends that the arrangement between the Secretary of Veterans Affairs and the Board Chairman violates the Appointments Clause as established in Arthrex.

Contrary to the argument presented, the Court rejects the notion that Mistretta v. United States supports the idea that it exercises the judicial power of the United States, emphasizing that Mistretta specifically determined that the Sentencing Commission does not exercise judicial power.

The Court further argues that the Board Chairman's ability to order reconsideration of decisions does not resolve the Appointments Clause issue, as the Chairman may be overruled by a majority of the panel.

Lastly, the Court asserts that the Secretary's oversight of the Board is insufficient to rectify the Appointments Clause problem, as it is too limited and indirect in nature.

The Court's final decision is to reject the request for extraordinary relief. In support of this decision, the Court argues that it should be responsible for reviewing the Appointments Clause issue raised by Mr. Prewitt, rather than leaving it to the Board of Veterans' Appeals (Board) to resolve. Despite exercising executive power in issuing its decisions, the Court firmly asserts that this does not compromise its status as an independent Article I court. The Court further emphasizes the importance of addressing the claimed constitutional defect before focusing on the cure for the Appointments Clause problem. Judge Jaquith concurs with the Court's opinion, stating that the petition is not the appropriate avenue for addressing Mr. Prewitt's constitutional arguments. Additionally, the document delves into the roles and responsibilities of key figures such as the Secretary of Veterans Affairs, the Deputy Secretary of Veterans Affairs, and the Under Secretary for Benefits. It also references specific sections of the United States Constitution, specifically Article II, Section 2, Clause 2, which outlines the appointment process for officers of the United States. In addition, the document explores the distinction between "principal" and "inferior" officers, as defined in the Supreme Court case United States v. Arthrex, Inc. Furthermore, it mentions the Board of Veterans' Appeals, which holds the responsibility of reviewing initial decisions on claims. The appointment process and responsibilities of the Chairman of the Board of Veterans' Appeals are also discussed. The document also tackles the authority of the Secretary of Veterans Affairs to remove Board members for substandard performance or any other valid reason. Moreover, it references the Code of Federal Regulations, which provides a framework for the Chairman's responsibilities. Lastly, it delves into the question of whether the structure of the Board of Veterans' Appeals violates the Appointments Clause and presents arguments supporting the sufficiency of supervision by principal officers within the Department of Veterans Affairs to ensure political accountability. The document respectfully disagrees with the concurring opinion, which suggests that embedding the Court in the executive branch is the only way to preserve the structure of the Board of Veterans' Appeals.

The document puts forth the argument that Chief Justice Roberts' statement in Arthrex, regarding the Court of Appeals for Veterans Claims being an Executive Branch entity, should be considered dictum rather than a binding precedent. Furthermore, the document highlights the extensive similarities between the Court of Appeals for Veterans Claims and Article III courts, suggesting a strong familial relationship between the two.

Additionally, the document delves into various aspects of the appointment process, residence requirements, and salaries for circuit judges, district judges, and the nine Judges of the Court of Appeals for Veterans Claims. It also explores the process of recalling retired judges for further service.

The City of Arlington v. FCC case is referenced, which argues that agencies engaged in rule-making and adjudication exercises are exercises of executive power. However, the document counters this by asserting that the Court of Appeals for Veterans Claims is not an agency but a fully independent court of record.

Moreover, the document examines the USCAVC's power to punish contempt of its authority and argues that it is not subject to the Freedom of Information Act (FOIA) due to its classification as a court rather than an executive branch agency. Cases such as Megibow v. Clerk of U.S. Tax Ct. and AV2 v. McDonough are cited to support this argument.

The document also delves into the USCAVC's authority to appoint employees without adhering to the provisions of title 5, and to determine their rates of pay. It further explores the USCAVC's separate budget and its authority to manage, administer, and allocate funds. The USCAVC's ability to hold judicial conferences and impose registration fees is also discussed.

Finally, the document explores the USCAVC's status in terms of ethics and financial disclosure requirements. It emphasizes that the USCAVC's functions and powers are quintessentially judicial, with supporting cases like Freytag v. Comm'r of Internal Revenue. The USCAVC's exclusive jurisdiction to review decisions of the Board of Veterans' Appeals, its role in reviewing the record of proceedings on claims by veterans and their family members, and its authority to interpret constitutional, statutory, and regulatory provisions and compel action from the Secretary are all examined as well. Additionally, the document highlights the USCAVC's authority to set aside and declare unlawful decisions, findings, and regulations issued by the Secretary, the Board of Veterans' Appeals, or the Chairman of the Board, citing cases like Copeland v. Shinseki.

The blog post also delves into the significance of the Equal Access to Justice Act (EAJA) and how it applies to veterans. It cites cases like Abbs v. Principi and Wagner v. Shinseki to support the importance of EAJA in protecting veterans' rights. Furthermore, the legislative history of the Veterans' Judicial Review Act (VJRA) and the establishment of the USCAVC as an independent court are discussed. Monk v. Shulkin is referenced as a case that supports the USCAVC's authority to certify and adjudicate class action cases. The USCAVC's power to issue a writ of mandamus and other writs to aid its jurisdiction is also explored, with Gardner-Dickson v. Wilkie cited as a supporting case. Additionally, the blog post discusses the USCAVC's status as a "Special Court" within the judicial branch and how Congress has the discretion to assign adjudication tasks to legislative tribunals, as seen in cases like Williams v. United States and American Insurance Company v. Canter. The importance of the USCAVC's independence from the executive branch, as outlined in 38 U.S.C. § 7282, is also highlighted.

The blog post further highlights key cases, such as Jones v. Derwinski and Rickett v. Shinseki, that demonstrate the USCAVC's position as a court exercising the full judicial power of the United States. It also addresses the argument that the USCAVC exercises executive power under Article II instead of judicial power under Article III. However, the document refutes this interpretation by citing the Supreme Court's decision in Freytag, which supports the USCAVC's exercise of judicial power. The document delves into the interpretation of Freytag in Kuretski v. Commissioner of Internal Revenue, arguing against the notion that the phrase "judicial power" was used in an enlarged sense. It maintains that Freytag explicitly establishes that Article I courts solely engaged in judicial functions exercise the judicial power of the United States. Furthermore, the document discusses subsequent Supreme Court cases like Arthrex and Ortiz, which have not overruled Freytag, as well as the Tax Court's affirmation of the Freytag holding in Battat v. Commissioner of Internal Revenue. Additionally, the document emphasizes that the USCAVC, having not originated as a board within the executive branch, has an even stronger claim to the portion of the judicial power of the United States under Article I. It explores the Schor factors embraced by the Wellness court, including the extent of jurisdiction and judicial review provided by an Article I court. The document concludes that the creation of the USCAVC and its exercise of judicial power do not infringe upon the constitutional prerogatives of Article III courts.

Furthermore, the document explores the pro-claimant nature of the system established by Congress for adjudicating veterans benefits claims. This system is specifically designed to protect the rights of veterans more effectively than the structure for regular civil litigation. Additionally, the document delves into the rationale behind Article I courts, which distinguish between private lawsuits and those involving public rights. This distinction allows Congress to reserve, delegate, or entrust the authority to make decisions. It also highlights that the Court of Appeals for Veterans Claims (USCAVC) is distinct from the Board because it operates as an independent judicial branch, ensuring due process for veterans. The document references the Mistretta case, which determined that the limited "for cause" interbranch removal power of the President does not violate the separation of powers. Furthermore, the document argues that the judicial branch encompasses more than just Article III judges, pointing to examples such as bankruptcy judges and magistrate judges. It also contends that the Sentencing Commission is closely aligned with the work of the judicial branch and asserts that the USCAVC aligns even more so. The creation of the USCAVC is seen as increasing the likelihood of impartial decision-making, free from political influence. The document also addresses the distinction between exercises of judicial power and executive agency guidance. It firmly asserts that the USCAVC is a federal court exercising the judicial power of the United States, rather than functioning as an agency entity.

The document firmly asserts that the creation of the USCAVC does not undermine the crucial principle of separation of powers or diminish the integrity of the judicial branch. It concludes that the petitioner fails to meet the required standards for extraordinary relief or recall of mandate. Furthermore, the document reiterates the importance of upholding the separation of powers principle and argues that placing the USCAVC in the executive branch would undermine the congressional compromise that led to its establishment. Such placement, it argues, would create the perception that the court lacks impartiality. The document concludes by emphasizing the paramount significance of independent judicial review. Mr. Prewitt, in his petition, seeks extraordinary relief against Denis McDonough, the Secretary of Veterans Affairs. However, the Court denies his petition. Mr. Prewitt also suggests that the Court may lack the authority to decide his constitutional arguments, but the Court does not further consider this undeveloped argument. Additionally, the Court discusses the case of Humphrey's Executor v. United States, which held that the Federal Trade Commission functions as a legislative and judicial agency rather than an executive one.

However, the Court acknowledges that this perspective has not stood the test of time, as exemplified by the Seila Law case. The Court provides scholarly evidence supporting the claim that the U.S. Court of Veterans Appeals functions as an executive entity. Additionally, the Court refers to the legislative history of the statute that established the Court, clearly stating its placement within the executive branch.

Furthermore, the Court thoroughly examines the Board's authority to amend decisions based on clear and unmistakable error, as well as its power to vacate decisions in cases involving due process violations or fraudulent evidence. Notably, the Court points out that the Board Chairman does not have a designated role in these actions. Additionally, the Court explores the Chairman's ability to order the reconsideration of a panel decision.

In this particular case, the Court chooses not to address Mr. Prewitt's constitutional challenges, as they are closely intertwined with the claims remanded by this Court. It is worth mentioning that Mr. Prewitt is also pursuing his constitutional challenges in the U.S. District Court.

Moreover, the Court references the Federal Circuit's observation that the futility exception to the issue exhaustion requirement might be applicable to an Appointments Clause challenge. The Court also delves into the historical background of the Board, which was established in 1933 by President Franklin D. Roosevelt.

Additionally, the Court discusses the administrative adjudication process for veterans' claims conducted by the VA, as well as the independent judicial review of decisions made by the Board of Veterans’ Appeals. Finally, the Court highlights the risk of dictum, which can create the impression of judicial acceptance despite lacking binding authority.

The Court highlights that the judges in this Court receive the same salary as judges in the United States district courts.

The Court thoroughly examines the distinction between "legislative courts" and "Article I courts," shedding light on their respective roles and functions. Additionally, the Court discusses the jurisdiction of the circuit court of appeals and highlights the nationwide jurisdiction of the Court of Appeals for Veterans Claims (USCAVC). For readers seeking further information, the Court provides valuable sources on the USCAVC. Furthermore, the Court delves into the landmark Supreme Court decision in Wellness International Network, Ltd. v. Sharif, which specifically addresses the crucial issue of bankruptcy courts deciding Stern claims. In addition, the Court acknowledges a concurring colleague who relies on Justice Scalia's concurrence in Freytag, adding an interesting perspective to the discussion. The Court also examines the Supreme Court's decision in Financial Oversight & Management Board for Puerto Rico v. Aurelius Investment, LLC, which takes a closer look at the judicial power of territorial courts. Furthermore, the Court cites the Tax Court's decision in Battat v. Commissioner, providing insights into the Court of Appeals for the Armed Forces. Exploring the role of the Court of Appeals for the Armed Forces (CAAF) within the military justice system, the Court sheds light on an important aspect of the legal landscape. Additionally, the Court refers to the dissenting opinion in Wellness International Network, Ltd. v. Sharif, which presents arguments against Congress granting power to non-Article III courts. The Court also discusses the precedent set in Thomas v. Union Carbide Agricultural Products Co., which enables Article I courts to determine private rights. Finally, the Court emphasizes the significance of the independent judicial review provided by the USCAVC, highlighting that it can only be reviewed by the U.S. Court of Appeals for the Federal Circuit and the U.S. Supreme Court.