Love: Writs to Stop a Reduction

Love v. McDonough, Opinion Number 21-1323, was decided June 23, 2022 and involved a writ of mandamus filed to stop a reduction from going into place.

The veteran had a 100% rating for prostate cancer discontinued and replaced with a 20%  rating for prostate cancer residuals.  The writ was based on a reading of the law that discontinuance of a rating could not implemented until all appeals had been exhausted.

The Board began by saying its jurisdiction begins with a final Board decision under 38 USC 7252.  Because this does not involve a Board decision, the only other source of authority is the All Writs Act (AWA).  The AWA provides that "all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a).

The appellant made a technical argument that the Secretary’s action forecloses the possibility of an overpayment and subsequently a claim related to waiver of overpayment.  However, the Court concluded that the statute and regulations do not establish a right to an overpayment that would trigger the use of the AWA.

The Court then “noted, this Court's authority under the AWA must be in aid of its jurisdiction; it cannot expand that jurisdiction.  And our jurisdiction is limited to review of final Board decisions. Thus, our authority to issue a writ under the AWA must help remove obstacles to the ordinary process for review of veterans benefits decisions.” (internal citations omitted).

The Court ultimately found “Mr. Love has not shown that the Secretary's preclusion of the possibility of overpayment presents an obstacle to this Court's future jurisdiction, nor any other basis on which we could issue a writ under the AWA in aid of our jurisdiction. Without authority under the AWA, there is no need to turn to section 7261 to determine our scope of action. We also find that there is no separate jurisdiction under section 7252(c) allowing the Court to act in aid of the Federal Circuit's potential jurisdiction. There are thus no jurisdictional grounds for this Court to compel the Secretary to restore payments to the pre-discontinuance amount pending completion of Mr. Love's appeal.”

Per Curium decision by Judges Meredith, Falvey and Laurer.

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