UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 22-3306

GEORGE D. PREWITT, JR., PETITIONER,

V.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS, RESPONDENT.

Before PIETSCH, FALVEY, and JAQUITH, Judges.

O R D E R

PIETSCH, Judge, filed the opinion of the Court. FALVEY, Judge, and JAQUITH, Judge, 

filed concurring opinions.

On June 2, 2022, self-represented Army veteran George D. Prewitt, Jr., filed a petition for 

extraordinary relief regarding a case that was previously before the Court but was remanded in 

part to the Board of Veterans' Appeals (Board). Mr. Prewitt asserts that structural constitutional 

problems prevent the Board from adjudicating his case, and he asks the Court to take jurisdiction 

and resolve these issues. Because he does not show that he is entitled to extraordinary relief, we 

will deny his petition.

I. FACTS

In July 2019, Mr. Prewitt appealed an April 2019 Board decision that denied various 

elements of several disability claims. In July 2020, the Court issued a single-judge decision 

affirming the Board decision in part, dismissing it in part, and setting it aside in part, and remanding 

the set aside matter.

In appealing the April 2019 Board decision, Mr. Prewitt argued that VA had violated his 

rights under the U.S. Constitution's Due Process and Takings Clauses. But the Court declined to 

address Mr. Prewitt's constitutional arguments, finding that the Board had failed to consider 

relevant evidence and that remand was thus necessary for the Board to consider the evidence in 

the first instance. See Prewitt v. McDonough, No. 19-5262, 2020 WL 4103039, at *3-4 (Vet. App. 

July 21, 2020) (mem. dec.) (citing Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) 

("[I]f the proper remedy is a remand, there is no need to analyze and discuss all the other claimed 

errors that would result in a remedy no broader than a remand.")); see Hensley v. West, 212 F.3d

1255, 1263-64 (Fed. Cir. 2000) (noting that when a court of appeals reviews a lower court's 

decision, it may remand the case if the previous adjudicator failed to make findings of fact essential 

to the decision).

Mr. Prewitt then appealed to the U.S. Court of Appeals for the Federal Circuit (Federal 

Circuit). In March 2021, the Federal Circuit dismissed his appeal, declining to review the matters 
2

remanded by this Court to the Board and finding that Mr. Prewitt's constitutional challenges were 

inextricably intertwined with the remanded matters. See Prewitt v. McDonough, 856 F. App'x 280, 

282-83 (Fed. Cir. 2021). Mandate for this Court's single-judge decision issued in September 2021.

In June 2022, Mr. Prewitt filed this petition, asking the Court to take jurisdiction over and 

decide questions of "structural[] constitutional" law that he claimed prevented the Board from 

hearing his case on remand. Prewitt v. McDonough, U.S. Vet. App. No. 22-3306, June 2, 2022, 

Amended Petition for Extraordinary Relief (Petition) at 1. He also moved for initial review by a 

panel, which was later granted. Petitioner's June 6, 2022, CAVC Rule 27.1 Motion for Initial 

Review by a Panel; Aug. 18, 2022, Judge's Stamp Order Granting Motion for Review by Panel. 

The Court ordered the Secretary to respond to the petition. June 10, 2022, Order. In response, the 

Secretary asked the Court to construe the petition as requesting a writ of mandamus and to deny 

it. July 11, 2022, Secretary's Response to Petition for Extraordinary Relief and Court Order Dated 

June 10, 2022. Thereafter, Mr. Prewitt filed a motion to amend his petition, which the Secretary 

opposed. Petitioner's Sept. 1, 2022, Motion for leave to file an Amendment to the Petition as set 

out below; Sept. 15, 2022, Secretary's Opposition to Motion for Leave to File an Amendment to 

the Petition.

II. ANALYSIS

This Court has the authority to issue extraordinary writs in aid of its jurisdiction pursuant 

to the All Writs Act, 28 U.S.C. § 1651(a). See Cox v. West, 149 F.3d 1360, 1363-64 (Fed. Cir. 

1998). However, "[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary 

situations." Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976).

Accordingly, three conditions must be met before a court may issue a writ: (1) the petitioner 

must lack adequate alternative means to attain the desired relief, thus ensuring that the writ is not 

used as a substitute for an appeal; (2) the petitioner must demonstrate a clear and indisputable right 

to the writ; and (3) the Court must be convinced, given the circumstances, that issuance of the writ 

is warranted. See Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81 (2004).

Pursuant to Rule 21(a), a petition for an extraordinary writ must, among other things,

 

(1) state the precise relief sought; (2) state the facts necessary to understand the 

issues presented by the petition; (3) state the reasons why the Court should grant 

the petition, including why the petitioner has a clear and indisputable right to the 

writ and why there are inadequate alternative means to obtain the relief sought; 

[and] (4) include an appendix containing copies of any order or decision or any 

other documents necessary to understand and support the petition.

U.S. VET. APP. R. 21(a).

Initially, the Court notes that though Mr. Prewitt filed a petition for extraordinary relief, he 

does not address the conditions that would warrant the issuance of a writ of extraordinary relief, 

nor does he comply with Rule 21. However, even overlooking his failure to explain why he has a 

clear and indisputable right to the writ and why there are inadequate alternative means to obtain 
3

the relief he seeks, the Court finds, based on the arguments in his petition, that he has failed to 

show entitlement to extraordinary relief.

In the underlying July 2020 decision, the Court vacated the part of the Board decision that 

denied revision of a June 1970 rating decision based in part on the Board's failure to address 

favorable evidence, to discuss whether Mr. Prewitt had received notice of his appellate rights, and 

to discuss whether the RO had rated his cranial nerve and muscle injuries separately. The Court 

remanded the matter. The Court declined to address other arguments raised by Mr. Prewitt. After 

he appealed, the Federal Circuit also "decline[d] to review" Mr. Prewitt's constitutional challenges, 

finding that they were inextricably intertwined with the parts of the decision the Court had 

remanded. 

Our single-judge decision and the Federal Circuit's dismissal of his appeal of that decision 

both directed the Board to address his constitutional challenges, a routine and accepted practice. 

See Ledford v. West, 136 F.3d 776, 780 (Fed. Cir. 1998); Saunders v. Brown, 4 Vet.App. 320, 326 

(1993); Hensley, 212 F.3d at 1263-64. Nothing about the proceedings in this case is exceptional. 

See Kerr, 426 U.S. at 402.

In his petition, Mr. Prewitt raises several constitutional arguments that he believes prevent 

the Board from addressing certain arguments. However, the Court need not address these 

arguments at this time. See Crumlich v. Wilkie, 31 Vet.App. 194, 201 (2019); Bucklinger v. Brown, 

5 Vet.App. 435, 441 (1993) ("It is a fundamental and long-standing principle of judicial restraint 

that courts avoid reaching constitutional questions in advance of the necessity of deciding them."

(internal quotation marks omitted)). As the Federal Circuit has made clear, the issue-exhaustion 

doctrine applies to constitutional arguments. See Morris v. McDonough, 40 F.4th 1359, 1362 (Fed. 

Cir. 2022). The Board's inability to invalidate VA's adjudication process on constitutional grounds 

does not render presentation of that issue to the Board futile, because the Board could provide 

information and analysis useful to the resolution of constitutional arguments by this Court. See 

Bowling v. McDonough, 38 F.4th 1051, 1058-59 (Fed. Cir. 2022). Moreover, on remand the Board 

does not necessarily need to consider any of Mr. Prewitt's constitutional arguments, but instead 

could find another basis to rule in his favor. Accordingly, any harm in letting the remand proceed 

normally is purely speculative. If the Board were to reject Mr. Prewitt's arguments, he can appeal 

that decision to the Court and obtain the relief that he now seeks.1 Thus, he has adequate alternative 

means to obtain the desired relief. See Cheney, 542 U.S. at 380-81. Consequently, the Court is not 

convinced, given the circumstances, that issuance of the writ is warranted. Id. 

Alternatively, the Court notes that Mr. Prewitt's petition for extraordinary relief could be 

viewed as a request for the Court to recall its mandate in the underlying single-judge decision and 

to grant reconsideration. Specifically, he does not ask for a writ of mandamus or any other familiar 

writ but instead asks the Court to take jurisdiction over and decide constitutional questions pending 

before the Board on remand. 

1 The Court notes that, in his petition, Mr. Prewitt suggests that this Court may lack the authority to decide 

his constitutional arguments. However, he does not fully explain this argument and appears to ask us to not address it. 

See Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain undeveloped 

arguments). Thus, the Court will not consider it further. 
4

"Recall of mandate is not ordinarily allowed. However, a court has the power to set aside 

any judgment and to recall mandate, where necessary to protect the integrity of its own processes."

Serra v. Nicholson, 19 Vet.App. 268, 271 (2005) (citing Sargent v. Columbia Forest Prods., Inc., 

75 F.3d 86, 89 (2d Cir.1996)). The decision to recall mandate is within the discretion of the Court 

and "may be exercised only for good cause or to prevent injustice, and only when 'unusual 

circumstances exist sufficient to justify modification or recall of a prior judgment.'" (quoting Zipfel 

v. Halliburton Co., 861 F.2d 565, 567 (9th Cir.1988)); see McNaron v. Brown, 10 Vet.App. 61, 62 

(1997) (holding that the power to recall mandate should only be exercised in "exceptional 

circumstances").

In Sagnella v. Principi, the Court noted the following regarding its authority to recall 

mandate:

Among the unusual circumstances justifying a Court's exercise of its power to recall 

mandate are the discovery that the judgment was obtained by fraud, the correction 

of clerical mistakes and judicial oversights, a subsequent change in the law, or 

where it is discovered that the appellant had died prior to the issuance of the 

mandate.

15 Vet.App. 242, 245 (2001). Mr. Prewitt has not demonstrated good cause or unusual 

circumstances to recall mandate. See Smith v. Shinseki, 26 Vet.App. 406, 410 (2014). As discussed 

more thoroughly above, our single-judge decision and the Federal Circuit's dismissal of his appeal 

were both within our normal practice and supported by caselaw. There is simply nothing unusual 

or exceptional about the facts in this case or the Court's remand order to warrant recalling mandate. 

See McNaron, 10 Vet.App. at 62.

III. CONCLUSION

Based on the above considerations, it is

ORDERED that Mr. Prewitt's motion to amend his petition is denied. It is also

ORDERED that Mr. Prewitt's petition for extraordinary relief is DENIED.

DATED: December 5, 2022

FALVEY, Judge, concurring: I concur with the Court's opinion that Mr. Prewitt's June 2, 

2022, filing, whether construed as a petition or as a motion to recall mandate, should be denied. I 

agree with the majority's disposition of his construed petition for a writ of mandamus, as he has 

not shown that he lacks adequate alternative means to receive the benefits he seeks. But I think 

that our rejection of the veteran's construed motion to recall mandate warrants a fuller explanation 

than the Court has offered. What's more, it requires us to consider this Court's place in the 

Constitution's structure.

Mr. Prewitt asks us to reconsider our prior memorandum decision because, in his view, the 

Board is unconstitutionally structured and therefore cannot render a valid decision on his benefits 
5

claims. Petition (Pet.) at 2-3. He argues that Board members' appointments violate the 

Appointments Clause because Board members "can only be fired for cause and [their] decisions 

are not reviewed administratively" by principal officers in the executive branch, and thus the 

Appointments Clause requires them to be appointed through Presidential nomination and Senate 

confirmation rather than by the Secretary. Pet. at 1; see 38 U.S.C. § 7101A; Edmond v. United 

States, 520 U.S. 651, 663 (1997) ("[I]nferior officers are officers whose work is directed and 

supervised at some level by others who were appointed by Presidential nomination with the advice 

and consent of the Senate." (internal quotation omitted)). 

Given that this Court reviews Board decisions, a crucial element of the veteran's 

Appointments Clause argument is his contention that the Court is not part of the executive branch. 

He acknowledges that the Supreme Court recently stated in United States v. Arthrex, Inc., that this 

Court is "an Executive Branch entity." Id. at 1-2 (quoting United States v. Arthrex, Inc., 594 U.S. 

__, __, 141 S. Ct. 1970, 1984 (2021)). But he asserts that the Supreme Court committed a 

"monumental error" in doing so because this Court is, in fact, part of the judicial branch. Id. at 2. 

Looking to the Supreme Court's precedents interpreting the Appointments Clause, I think that Mr. 

Prewitt's structural constitutional argument has a plausible basis and, despite being incorrect, 

merits more than cursory disregard. 

The Supreme Court has explained that the Appointments Clause is violated when an officer 

of the executive branch who was not appointed through Presidential nomination and Senate 

confirmation—such as a member of the Board—can "render a final decision on behalf the United 

States" without sufficient oversight from a principal officer of the executive branch. Arthrex, 

594 U.S. at __, 141 S. Ct. at 1981-82. Neither an Article III court nor a higher-ranking principal 

officer who lacks "'meaningful[] control[]'" over the officer's decisions can provide the executive 

branch supervision required by the Appointments Clause. Id. (quoting Seila Law LLC v. Consumer 

Fin. Prot. Bureau, 140 S. Ct. 2183, 2203 (2020)). And Board members render final, binding 

decisions on behalf of the United States. See 38 U.S.C. §§ 7102(a) 7103(a), 7104(a). Indeed, our 

jurisdiction depends on the Board rendering final decisions. See 38 U.S.C. § 7266(a). Thus, Mr. 

Prewitt's Appointments Clause argument is compelling—and potentially presents good cause and 

unusual circumstances warranting a recall of mandate—if he is correct in his premise that the 

Board is not subject to meaningful executive branch oversight.

But that premise is wrong. As the Supreme Court explained in Arthrex, the Board is subject 

to executive branch review by this Court. 594 U.S. at __, 141 S. Ct. at 1984 ("[W]hile the Board 

of Veterans' [Appeals] does make the final decision within the Department of Veterans Affairs . . . 

its decisions are reviewed by the Court of Appeals for Veterans Claims, an Executive Branch 

entity."). As explained below, far from committing a "monumental error," Pet. at 1, the Supreme 

Court's statement in Arthrex that this Court wields executive power not only warrants our respect, 

but, from a constitutional perspective, is correct. 

First, the Court is not free to disregard Arthrex's statement that we are an entity of the 

executive branch. Rather than mere dicta, see post at 15-16, the statement was an important part 

of the Supreme Court's reasoning. The Supreme Court used the statement to reject a key 

counterargument—that inferior officers commonly make final decisions on behalf of the executive 

branch that are not subject to review by a principal officer. See Arthrex, 594 U.S. at __, 141 S. Ct. 
6

at 1983-84. The Supreme Court explained that the decisions of various inferior officers, including 

Board members, are subject to review by superior executive branch entities, such as (in the case 

of the Board) this Court. See id. Thus, our status as a superior "Executive Branch entity" was an 

important aspect of the Supreme Court's logic, not a throwaway line or incautious remark. And at 

any rate, even the Supreme Court's dicta carries significant weight. See Ins. Co. of the West v. 

United States, 243 F.3d 1367, 1372 (Fed. Cir. 2001) (stating that the Federal Circuit must follow 

a Supreme Court interpretation "even though that interpretation may be dicta").

Second, and more fundamentally, the Supreme Court was correct as a matter of 

constitutional law that this Court wields executive power. This should come as no surprise. 

Executive branch entities commonly "make rules . . . and conduct adjudications . . . and have done 

so since the beginning of the Republic. These activities take 'legislative' and 'judicial' forms, but 

they are exercises of—indeed, under our constitutional structure they must be exercises of—the 

'executive Power.'"2 City of Arlington v. FCC, 569 U.S. 290, 304 n.4 (2013).

Congress has established Article I tribunals, sometimes called "legislative courts," to 

adjudicate limited categories of subject matters that do not necessarily require adjudication by an 

Article III court. See Stern v. Marshall, 564 U.S. 462, 490-91 (2011); Thomas v. Union Carbide 

Agric. Prods. Co., 473 U.S. 568, 583 (1985). One of these categories is "public rights" matters—

that is, matters involving rights "integrally related to particular [f]ederal [g]overnment action." 

Stern, 564 U.S. at 490-91. This includes disputes arising "'between the [g]overnment and persons 

subject to its authority in connection with the performance of the constitutional functions of the 

executive or legislative departments.'" Id. at 490 (quoting Crowell v. Benson, 285 U.S. 22, 50 

(1932)). The VA benefits system falls squarely within this category since VA, an executive agency, 

administers the legislative grant of entitlements (disability compensation for service-related 

injuries or illnesses) to a subset of persons under governmental authority (veterans). See Shinseki 

v. Sanders, 556 U.S. 396, 400-01 (2009). 

This Court is an Article I tribunal, functioning outside Article III under the "public rights" 

doctrine. See Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 432 (2011) (noting that the 

Court of Appeals for Veterans Claims is an Article I tribunal); Crowell, 285 U.S. at 50-51 

("payments to veterans" may be adjudicated outside Article III because they are public rights). 

And this means that the Court wields executive power, not judicial power under Article III.3

2

In Humphrey's Executor v. United States, the Supreme Court held that the Federal Trade Commission (FTC) 

acted as "a legislative agency" and "as an agency of the judiciary" and that, if the FTC exercised any executive 

function, it did so not using "executive power in the constitutional sense" but "in the discharge and effectuation of its 

quasi[-]legislative or quasi[-]judicial powers, or as an agency of the legislative or judicial departments of the 

government." 295 U.S. 602, 628-29 (1935) (relying on Williams v. United States, 289 U.S. 553, 567 (1933); see post

at 21-23 (likewise relying on Williams). But as the Supreme Court has observed, the Humphrey's Executor view of 

administrative agency power as non-executive "has not withstood the test of time." Seila Law, 140 S. Ct. 2183, 2198 

n.2 (2020).

3 There is ample scholarly support for this conclusion. See, e.g., Michael S. Greve, Why We Need Federal 

Administrative Courts, 28 GEO. MASON L. REV. 765, 800 (2021) ("Technically, the U.S. Tax Court is an executive 

body, as are the U.S. Court of Federal Claims and the U.S. Court of Veterans Appeals. (Not being Article III courts, 

they cannot be anything else.)" (emphasis added)); William Baude, Adjudication Outside Article III, 

133 HARV. L. REV. 1511, 1558 (2020) ("[T]ribunals that are justified because they deal with public rights or the 

military must be part of the executive branch, so while we might colloquially call some of them 'legislative courts,' in 

the constitutional sense, they are not."); Craig A. Stern, What's a Constitution Among Friends?—Unbalancing Article 
7

Our Constitution's separation of powers requires this conclusion. The federal government's 

power is separated into three types: legislative, executive, and judicial. INS v. Chadha, 462 U.S. 

919, 951 (1983); J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406 (1928); see generally

THE FEDERALIST NO. 47 (James Madison). The legislative power is vested exclusively in Congress. 

U.S. CONST. art. I, § 1. And the judicial power is vested in the Supreme Court and such inferior 

courts as Congress may establish, with the requirement that the judges (or justices) of these courts 

have lifetime appointments "during good behavior" and are protected from reductions in salary 

while in office. U.S. CONST. art. III, § 1. Mr. Prewitt does not argue that we exercise legislative 

power, see Pet. at 1-4, nor would such an argument be plausible, given that our authority is limited 

to "review[ing] decisions of the Board," 38 U.S.C. 7252(a), and we thus lack power to enact any 

generally applicable laws or regulations. More importantly, we cannot exercise judicial power 

because "Article III of the Constitution provides that the judicial power of the United States may 

be vested only in courts whose judges enjoy the [life tenure and salary] protections set forth in that 

Article." Stern, 564 U.S. at 503. And Judges of this Court do not enjoy life tenure. See

38 U.S.C. § 7253(c) ("The term of office of the judges of the Court of Appeals for Veterans Claims 

shall be 15 years.").

Because we wield neither legislative power under Article I nor judicial power under Article 

III, we must wield executive power under Article II. Cf. Chadha, 462 U.S. at 951; J.W. Hampton, 

276 U.S. at 406; see City of Arlington, 569 U.S. at 304 n.4. Thus, contrary to Mr. Prewitt's 

argument, this Court is not "part of the judicial branch." See Pet. at 2. And because the Judges of 

III, 146 U. PENN. L. REV. 1043, 1060-66 (1998) (explaining that "public rights" tribunals exercise executive power 

rather than "the judicial power of the United States"); Akhil Reed Amar, Marbury, Section 13, and the Original 

Jurisdiction of the Supreme Court, 56 U. CHI. L. REV. 443, 451 n.43 (1989) ("[S]trictly speaking, 'legislative courts' 

are neither legislative nor courts; rather, they are executive agencies."). 

Although the other concurrence plucks an orphaned quote from the Stern article to "solve the puzzle" in a 

way that "contradicts [the] premise" of this concurrence (not to mention Professor Stern's conclusions), post at 27, a 

closer reading of the article shows no contradiction at all. In Professor Stern's view, the proceedings of public-rights 

courts are "matter[s] of public administration" that guide the executive branch and inform citizens of their rights and 

responsibilities. Stern, supra at 1062; accord id. at 1062 ("Deciding whom to prosecute, what taxes to assess, what 

grants to disburse, which veterans qualify for benefits—these, and perhaps most, decisions of the executive require 

applying the law to facts. They are not, however, instances of 'the judicial [p]ower.'") Thus, in Professor Stern's 

formulation, public-rights tribunals do not "authoritatively pronounce the law" in disputes between parties as Article 

III courts do; instead, they use executive power to issue binding administrative decisions. Id at 1060-66.

And this conclusion also finds support in the legislative history of the statute creating the Court:

An independent Court of Veterans Appeals would be established in the executive branch in lieu of 

the existing Board of Veterans' Appeals. There are a number of similar executive branch or Article 

I Courts already in existence; two of the most notable are the Court of Military Appeals and the Tax 

Court.

H.R. Rep. No. 100-963, pt. 1, at 5 (1988). Although the eventual legislation didn't create the Court "in lieu of” the 

existing Board of Veterans' Appeals, the legislative history is instructive, nonetheless. And, although the legislation 

sought to create a Court that is "independent" and "impartial," see post at 20-21, acknowledging that we exercise 

executive power does not undermine our independence conferred by Congress or our ability to decide cases 

impartially, see infra at 10.
8

this Court are therefore principal officers of the executive branch, appointed by the President and 

confirmed by the Senate, our review of Board decisions prevents an Appointments Clause 

violation from occurring due to Board members' appointments by the Secretary; contrary to Mr. 

Prewitt's premise, Board members do not render "final decision[s] on behalf of the United States" 

without review by a principal officer in the executive branch. Arthrex, 594 U.S. at __, 141 S. Ct. 

at 1981-82, 1984; see 38 U.S.C. §§ 7102(a) 7103(a), 7104(a).

To be sure, some of our decisions have relied on Freytag v. Commissioner of Internal 

Revenue to state that we exercise "the judicial power of the United States." See, e.g., Rickett v. 

Shinseki, 26 Vet. App. 210, 222 (2013) (per curiam order) (en banc), withdrawn on other grounds, 

27 Vet. App. 240 (2015); Copeland v. Shinseki, 26 Vet. App. 86, 90 n.4 (2012); Jones v. Derwinski, 

1 Vet. App. 596, 607 (1991); see also Freytag v. Comm'r of Internal Revenue, 501 U.S. 868, 889-

91 (1991); post at 22-24. This reading of Freytag is understandable, considering that Freytag stated 

that a non-Article III tribunal—the Tax Court—exercised "the judicial power of the United States." 

See Freytag, 501 U.S. at 891; see also Resp. at 7 (agreeing that this Court "has been granted judicial 

power").

But a continued reading of Freytag as concluding that we exercise "the judicial power of 

the United States" does not appear to survive later Supreme Court decisions specifying that only

Article III courts possess such power. See Stern, 564 U.S. at 484, 503 (holding that "the judicial 

power of the United States" may be vested only in Article III courts whose judges enjoy lifetime 

tenure and salary protections). This view was not rejected by Wellness International Network v. 

Sharif, 575 U.S. 665 (2015). Contra post at 22 n.24, 24. There, consistent with the public rights 

doctrine, the Supreme Court simply reiterated that Article I courts may adjudicate certain matters 

that need not be adjudicated by Article III courts. See 575 U.S. at 678-80. The Supreme Court did 

not hold that Article I courts therefore exercise the judicial power of the United States under Article 

III. And later Supreme Court decisions have confirmed that only life-tenured Article III judges 

may exercise such power. See Oil States Energy Servs., LLC v. Greene's Energy Grp., 138 S. Ct. 

1365, 1372-73 (2018) ("Congress cannot 'confer the Government's "judicial power" on entities 

outside of Article III.'" (quoting Stern, 546, U.S. at 484)); see also Ortiz v. United States, 138 S. Ct. 

2165, 2178-80 (2018) (noting that, although Article I military courts have a "judicial character" 

and perform "an inherently judicial role," they are located within the executive branch).

Moreover, our prior reading of Freytag may have been mistaken. As the Court of Appeals 

for the D.C. Circuit explained in holding that the Tax Court (the same entity examined in Freytag) 

is an executive branch body that exercises executive power, Freytag did not use the phrase 

"judicial power" in "the particular sense employed by Article III" but in "an enlarged sense" 

encompassing non-Article III adjudications. Kuretski v. Comm'r of Internal Revenue, 

755 F.3d 929, 941 (D.C. Cir. 2014) (quoting Murray's Lessee v. Hoboken Land & Improvement 

Co., 59 U.S. 272, 280 (1856) (viewing "judicial power" "in an enlarged sense," holding that all 

"administrative duties the performance of which involves an inquiry into the existence of facts and 

the application to them of rules of law" are "judicial act[s]")); see also Freytag, 501 U.S. at 908 

(Scalia, J. concurring in part) ("'The judicial power,' as the [Freytag majority] uses it, bears no 

resemblance to the constitutional term of art we are all familiar with, but means only, 'the power 

to adjudicate in the manner of courts.'").
9

Much like the Tax Court, this Court exercises a form of administrative "judicial power" in 

the sense of examining facts and applying law, but not in the sense of Article III's "judicial power 

of the United States." Although the other concurrence relies on Battat v. Commissioner of Internal 

Revenue, 148 T.C. 32 (2017), to "persuasively rebut[]" Kuretski, post at 23-24, Battat

accomplishes no such thing. Putting aside the relative authoritative value of the Court of Appeals 

for the D.C. Circuit versus the Tax Court, Battat made much the same error that the other 

concurrence makes here—ignoring the constraints of Article III, Section 1, to assert that an Article 

I court exercises the judicial power of the United States. See 148 T.C. at 53 ("While the Tax Court 

exercises a portion of the judicial power of the United States, . . . it has jurisdiction to adjudicate 

only public rights disputes, . . . and thus does not exercise that portion of the judicial power that is 

reserved for Article III judges."). Contra Battat, the Constitution reserves all judicial power of the 

United States to Article III judges. U.S. CONST. art. III, § 1; Oil States, 138 S. Ct. at 1372-73; 

Stern, 564 U.S. at 484, 503.

Similarly, although this Court performs adjudicative duties, such as resolving cases; 

establishing precedents; interpreting the law; awarding attorney's fees; using the Case 

Management/Electronic Case Files system (which enables courts to maintain electronic files and 

offer online filing); maintaining practice committees; and hiring court staff, see post at 15-20, these 

duties are not—and indeed cannot be—exercises of the judicial power of the United States under 

Article III. See City of Arlington, 569 U.S. at 304 n.4; see also Oil States, 138 S. Ct. at 1378 ("The 

fact that an agency uses court-like procedures does not necessarily mean it is exercising the judicial 

power. The Court has rejected the notion that a tribunal exercises Article III judicial power simply 

because it is 'called a court and its decisions called judgements.'"). 

Despite the other concurrence's insistence, Mistretta v. United States does not support the 

proposition that this Court exercises the judicial power of the United States.

Although Mistretta held that the U.S. Sentencing Commission, an independent agency, is in some 

sense "located in the Judicial Branch," Mistretta did not hold that the Sentencing Commission 

therefore exercises Article III judicial power. See Mistretta v. United States, 488 U.S. 361, 393 

(1989). Indeed, Mistretta squarely held that the Sentencing Commission is an "independent 

agency" that "does not exercise judicial power." Id. at 393 (emphasis added); accord id. at 408 

("[T]he Commission is not a court and exercises no judicial power."). Thus, any analogy between 

the Sentencing Commission and this Court, see post at 26, confirms rather than rebuts that this 

Court likewise does not exercise Article III judicial power. Moreover, the existence of a nonjudicial administrative body within the judicial branch does not obviate the Constitution's explicit 

prerequisite of lifetime tenure for a court to wield the judicial power of the United States. See U.S. 

CONST. art. III, § 1.

The other concurrence notes that magistrate and bankruptcy judges are constitutionally 

permissible as "adjuncts of the district court," post at 26, 28, but there is little resemblance between 

such adjuncts and our Court's Judges. In general, the actions of magistrate judges and bankruptcy 

judges are constitutionally permissible to the extent that they are subject to the "'total control and 

jurisdiction'" of district courts. Wellness Int'l, 575 U.S. at 677, 679 (quoting Peretz v. United 

States, 501 U.S. 923, 937 (1991)). But we are not subject to any such "total control," and 

presumably the other concurrence—which emphasizes our "complete[] independen[ce]," post at 

16—ultimately agrees that we are not mere "adjuncts" of the Article III judiciary.
10

The other concurrence also argues that there is no present need to consider the Court's 

location in the constitutional structure because principal officers within VA provide enough 

oversight of Board decisions to solve any Appointments Clause issues. See post at 12-14. After 

all, the Secretary and the Board Chairman each has some degree of authority over the Board and 

each is appointed by the President and confirmed by the Senate. See id. at 12-14; 38 U.S.C. §§ 303, 

7101(b)(1). In my view, this might have been a plausible solution to the Appointments Clause 

problem before Arthrex, but it is no longer tenable because Arthrex made clear that an 

Appointments Clause violation occurs if an officer who has not been nominated by the President 

and confirmed by the Senate has "power to render a final decision on behalf of the United States" 

without proper "review" by a "principal officer in the Executive Branch." 594 U.S. at __, 141 S. Ct. 

at 1981-82, 1988. And here, it is undisputed that both the Secretary and the Board Chairman lack 

"discretion" to perform the necessary review, and they may not "countermand[]" Board decisions, 

id. at 1982, 1988; indeed, "no principal officer within VA can unilaterally reverse a Board 

decision," post at 14. Without some other executive oversight, this arrangement violates the 

Appointments Clause under Arthrex.

It is true that the Board Chairman may order reconsideration of a decision by a panel of 

three or more Board members, which may include the Chairman as a single voting member.4

38 U.S.C. § 7103; 38 C.F.R. §§ 20.1002, 20.1004 (2022); see post at 14. But the Chairman 

presumably may be outvoted by a panel majority of inferior-officer Board members even if the 

Chairman orders reconsideration of a case and chooses to sit on the reconsideration panel, leaving 

the Chairman unable to countermand the decision.5See 38 C.F.R. § 20.1004; see also Arthrex, 

594 U.S. at __, 141 S. Ct. at 1981-82, 1988. The Chairman also may assign Board members to 

proceedings, promulgate performance standards, and award performance incentives, see 38 U.S.C. 

§§ 7101A(c), 7101(e); 38 C.F.R. § 20.106 (2022); post at 13-14, but under Arthrex these methods 

of indirectly supervising Board decisions does not solve the Appointments Clauses problem, see

594 U.S. at __, 141 S. Ct. at 1980-81. 

The Secretary's oversight of individual Board decisions is even narrower and more indirect 

than the Chairman's. The Secretary's influence over the Board consists of appointing Board 

members with the approval of the President and removing Board members upon the Chairman's 

noncertification and recommendation. 38 U.S.C. § 7101A(a)(1), (d)(1); post at 13-14. But 

noncertification and removal do not give the Secretary or the Chairman a "means of 

countermanding [a] final decision already on the books"—which is "what matters" under Arthrex. 

see Arthrex, 594 U.S. at __, 141 S. Ct. at 1981-82. Although VA's internal oversight of the Board 

may present a closer call than did the Patent Trial and Appeal Board structure that the Supreme

found to violate the Appointments Clause in Arthrex, I do not think that supervision of the Board 

4 The Board may also, on its own or a party's motion, revise a decision based on clear and unmistakable error, 

38 C.F.R. §§ 20.1400, 20.1407 (2022), or vacate a decision because due process has been denied or benefits have been 

granted based on fraudulent evidence, 38 C.F.R. § 20.1000 (2022). But the regulations do not specify any role for the 

Board Chairman in these actions.

5 The Chairman can also order reconsideration of a panel decision by the Board, in which instance the case 

will be referred to "an enlarged panel, consisting of three or more Members than the original panel." 38 C.F.R. 

§ 20.1004(b). But the same potential Appointments Clause problem still exists because it might be ordinary Board 

members who make the ultimate decision and not the Chairman.
11

from inside VA solves the Appointments Clause problem raised here. Review from this Court, 

however, does. And that is the ground on which I would reject Mr. Prewitt's motion to recall 

mandate.

To be clear, acknowledging that this Court exercises executive power in issuing its 

decisions neither undermines our status as an "independent Article I court," Kisor v. Wilkie, 

139 S. Ct. 2400, 2409 (2019), nor places the Court's Judges under any executive branch restraint 

except for the President's narrow power of for-cause removal. See 38 U.S.C. § 7253(f). Congress 

has vested our Court with "exclusive jurisdiction to review decisions of the Board of Veterans' 

Appeals" and "power to affirm, modify, or reverse a decision of the Board or to remand [a] matter, 

as appropriate." 38 U.S.C. § 7252(a). Our decisions are reviewable only to the limited extent that 

Congress has authorized the U.S. Court of Appeals for the Federal Circuit and the Supreme Court 

to do so. See 28 U.S.C. § 1254; 38 U.S.C. § 7292. Acknowledging that we are constitutionally 

located within the executive branch, as the Supreme Court did in Arthrex, does not challenge any 

aspect of our independence. Nor does it alter Congress's creation of "a court of record to be known 

as the United States Court of Appeals for Veterans Claims," nor the appointment of "judges" to 

serve on the Court. 38 U.S.C. §§ 7251, 7253; see Oil States, 138 S. Ct. at 1378. Acknowledging 

that we are constitutionally located in the executive branch simply means that, in our adjudication 

of cases under authority granted by Congress, we wield executive power and not "the judicial 

power of the United States."

JAQUITH, Judge, concurring: I concur with the Court's opinion that neither issuance of a 

writ of mandamus nor recall of mandate is warranted in this case. As the Court's opinion provides, 

this petition is not the appropriate vehicle for addressing Mr. Prewitt's latest constitutional 

arguments: because his underlying appeal was remanded to the Board, he has an ongoing 

opportunity to obtain the substantive relief he seeks. The preference for that process is both 

practical and prudential. "A fundamental and longstanding principle of judicial restraint requires 

that courts avoid reaching constitutional questions in advance of the necessity of deciding them."6

Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445 (1988); see, e.g., Bucklinger v. 

Brown, 5 Vet.App. 435, 441 (1993). Such restraint recognizes that constitutional questions require 

the focused consideration of a complete record. As with the petitioner's prior constitutional 

challenges left for Board consideration, 7presenting the Board with his argument that the 

Secretary's appointment of Board members is unconstitutional could result in the Board providing 

6 The judicial obligation "to avoid deciding constitutional issues needlessly" applies to separation of powers 

concerns. See Christopher v. Harbury, 536 U.S. 403, 417 (2002). 

7 The Federal Circuit declined "to review Mr. Prewitt's constitutional challenges, which include an Equal 

Protection claim, a Due Process claim, and a Takings Clause claim," as intertwined with his claims remanded by this 

Court. Prewitt v. McDonough, 856 F. App'x 280, 282-83 (Fed. Cir. 2021). Mr. Prewitt is also pressing his 

constitutional challenges in U.S. District Court. On September 30, 2022, the U.S. District Court for the District of 

Columbia denied VA's motion to dismiss Mr. Prewitt's "facial Appointments Clause challenge to the structure of the 

VA" and his "First and Fifth Amendment challenges to the VJRA's [Veterans' Judicial Review Act's] review system—

namely, that it unconstitutionally limits the opportunities for judicial review and court access of an allegedly 

disproportionately male and nonwhite subgroup." Prewitt v. McDonough, No. 4598654, 2022 WL 4598654, at *7-8 

(D.D.C. Sept. 30, 2022). The claimant's ability to bring his constitutional challenge in U.S. District Court also 

demonstrates that he does not lack alternative means of obtaining the relief he seeks. Dacoron v. Brown, 4 Vet.App. 

115, 119 (1993); cf. Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1033-34 (9th Cir. 2012) (collecting 

cases).
12

information or analysis useful to the resolution of that argument by this Court.8See Bowling v. 

McDonough, 38 F.4th 1051, 1058-59 (Fed. Cir. 2022). So I respectfully disagree with my 

distinguished concurring colleague's determination that this petition warrants assigning this Court 

to the executive branch to cure the claimed constitutional infirmity. 

In my view, it is backward to concentrate on the cure—and conceive this Court as the 

Board's executive branch supervisor—without first considering more carefully the claimed 

constitutional defect: that the Secretary's appointment of Board members violates the 

Appointments Clause of the U.S. Constitution. The analytical order and volume of my colleague's 

concurrence seem to reflect recognition that whether there is an Appointments Clause problem is 

a close question that may be solved by the supervision of the Board within VA.9 That question is 

one that should be answered in a case where the decision depends on the answer, is preceded by 

robust briefing and oral argument, and accounts for this Court's prior precedential decision 

rejecting an Appointments Clause challenge to Board action when the Court found that the 

Secretary appoints Board members—inferior officers—in the Secretary's capacity as "Head[] of 

Department[]." See Henderson v. West, 12 Vet.App. 11, 16 (1998) (quoting U.S. CONST. art. II, § 

2, cl. 2).

The Appointments Clause

"The Appointments Clause of the Constitution lays out the permissible methods of 

appointing 'Officers of the United States,' a class of government officials distinct from mere 

employees." Lucia v. S.E.C., 138 S. Ct. 2044, 2049 (2018) (quoting U.S. CONST. art. II, § 2, cl. 2).

The Appointments Clause provides: 

[The President] shall nominate, and by and with the Advice and Consent of the 

Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of 

the supreme Court, and all other Officers of the United States, whose Appointments 

are not herein otherwise provided for, and which shall be established by Law: but 

the Congress may by Law vest the Appointment of such inferior Officers, as they 

think proper, in the President alone, in the Courts of Law, or in the Heads of 

Departments.

U.S. CONST. art. II, § 2, cl. 2."Only the President, with the advice and consent of the Senate, can 

appoint noninferior officers, called 'principal' officers as shorthand." United States v. Arthrex, Inc., 

141 S. Ct. 1970, 1979 (2021). But "Congress may vest the appointment of [inferior] officers 'in 

the President alone, in the Courts of Law, or in the Heads of Departments.'" Id. (quoting U.S. 

CONST. art. II, § 2, cl. 2). 

8 Although the Federal Circuit observed, in the wake of Carr v. Saul, 141 S. Ct. 1352 (2021), that the futility 

exception to the issue exhaustion requirement could apply to an Appointments Clause challenge, the Federal Circuit 

did not upend this Court's discretion to decline to address an appellant's arguments before they have been presented 

to the Board. Morris v. McDonough, 40 F.4th 1359, 1362-64 (Fed. Cir. 2022). As Bowling noted just 20 days before 

Morris was decided, notwithstanding the Board's inability to resolve a constitutional question, the Board can perform 

"at least record-development functions, as well as associated fact-finding functions." 38 F.4th at 1059.

9 Ante at 9-10.
13

The Supreme Court has "not set forth an exclusive criterion for distinguishing between 

principal and inferior officers for Appointments Clause purposes." Edmond v. United States, 520 

U.S. 651, 661 (1997). However, the basic point is that inferior officers exercise significant 

authority—the hallmark of an officer—but are supervised at some level by a principal officer or 

officers, appointed by the President and confirmed by the Senate. Id. at 662-63. The statutory and 

regulatory provisions governing the Board show that its members receive meaningful supervision 

by principal officers.

The Department of Veterans Affairs

The Secretary of Veterans Affairs is the head of the Department of Veterans Affairs and is 

appointed by the President, by and with the advice and consent of the Senate. 38 U.S.C. § 303. 

"The Secretary is responsible for the proper execution and administration of all laws administered 

by the Department and for the control, direction, and management of the Department." Id. By 

statute, "[t]he Secretary shall decide all questions of law and fact necessary to a decision by the 

Secretary under a law that affects the provision of benefits by the Secretary to veterans or the 

dependents or survivors of veterans." 38 U.S.C. § 511(a). The Secretary is also empowered to 

provide equitable relief. 38 U.S.C. § 503. 

The Secretary is assisted by a Deputy Secretary of Veterans Affairs, who is also appointed 

by the President, with the advice and consent of the Senate, and serves as Acting Secretary in the 

absence or disability of the Secretary.10 38 U.S.C. § 304. 

The Secretary has delegated authority to the Under Secretary for Benefits to act on matters 

assigned to the Veterans Benefits Administration. 38 C.F.R. § 2.6(b)(1) (2022). The Under 

Secretary for Benefits is appointed by the President, with the advice and consent of the Senate, 

and serves as the head of the Veterans Benefits Administration. 38 U.S.C. § 306(b). The Under 

Secretary for Benefits and supervisory or adjudicative personnel the Under Secretary designates 

are delegated the authority to make findings and decisions as to the entitlement of veterans and 

their dependents to benefits under laws administered by VA. 38 C.F.R. § 3.100(a) (2022). In 

practice, those decisions generally are made by designated personnel at VA's regional offices.11

See 38 U.S.C. § 315.

The Board of Veterans' Appeals

Appeals of initial decisions on claims go to the Board of Veterans' Appeals, which performs 

the "one review on appeal to the Secretary" provided by statute. 38 U.S.C. § 7104(a). "The Board 

is under the administrative control and supervision of a chairman directly responsible to the 

Secretary." 38 U.S.C. § 7101(a).12 The Chairman of the Board is appointed by the President, by 

10 Other VA officials appointed by the President, with the advice and consent of the Senate, include three 

Under Secretaries, up to seven Assistant Secretaries, the General Counsel, and the Inspector General. 38 U.S.C. §§ 

305-308, 311-12.

11 VA has 56 regional offices in the United States—at least one in each state and one in the District of 

Columbia—as well as regional offices in the Philippines and Puerto Rico. Regional Offices Websites, VETERANS 

BENEFITS ADMINISTRATION, https://www.benefits.va.gov/benefits/offices.asp (last visited Oct. 14, 2022. 

12 The Board was created in 1933 by President Franklin D. Roosevelt's Executive Order 6230. Only the titles 
14

and with the advice and consent of the Senate, and the Chairman may be removed by the President. 

38 U.S.C. § 7101(b). Board members are "appointed by the Secretary, with the approval of the 

President, based upon recommendations of the Chairman." 38 U.S.C. § 7101A(a)(1). The 

Chairman establishes performance standards for Board members and determines whether Board 

members are awarded performance incentives. 38 U.S.C. §§ 7101A(c), 7101(e). The Chairman 

also establishes a panel to review the performance of Board members and determine whether they 

meet performance standards, and the Chairman periodically relies on that determination to 

recertify each Board member's appointment, grant conditional recertification, or recommend that 

the Secretary noncertify them. 38 U.S.C. § 7101A(c). "If the Secretary, based upon the 

recommendation of the Chairman, determines that a member of the Board should be noncertified, 

. . . that member shall be removed from the Board." 38 U.S.C. § 7101A(d). In addition to removal 

based on job performance, a Board member "may be removed by the Secretary, upon the 

recommendation of the Chairman, for any other reason as determined by the Secretary." 38 U.S.C. 

§ 7101A(e). 

The Chairman assigns proceedings instituted before the Board to an individual Board 

member or a panel of Board members. 38 C.F.R. § 20.106 (2022). If the Chairman assigns the 

appeal to a panel, the Chairman designates one of the Board members as the presiding member. 

38 C.F.R. § 20.706 (2022). The Chairman may disqualify a Board member from acting in an appeal 

where the appeal involves a determination in which the Board member participated or for which 

the Board member had supervisory responsibility before becoming a Board member, or where

other circumstances might give the impression of bias either for or against the appellant. 38 C.F.R. 

§ 20.107 (2022). The Board has a quality review program, aimed at identifying "objective errors 

that fall outside the bounds of judicial discretion in a uniform and consistent manner," which 

operates by advising the Board member responsible for the decision and the member's supervising 

Deputy Vice Chairman so they can remedy the errors. VETERANS BENEFITS MANUAL § 13.6.2 

(Nat'l Veterans Legal Servs. Program ed., 2021-2022). The Chairman issues internal memoranda 

to ensure that Board decisions fulfill the Board's statutory responsibilities, as interpreted by this 

Court. See Austin v. Brown, 6 Vet.App. 547, 549 (1994); see also Andrews v. McDonough, 34 

Vet.App. 151, 155 (2021); Clark v. O'Rourke, 30 Vet.App. 92, 96-97 (2018). In order to grant a 

benefit, the Chairman may approve the assumption of appellate jurisdiction over an adjudicative 

determination that has not become final, and the Chairman may order VA Central Office 

investigations of matters before the Board. 38 C.F.R. § 20.108 (2022). The Chairman has the power 

to order reconsideration of each Board decision—"on the Chairman's initiative or upon motion of 

the claimant"—thereby stopping the decision from becoming final. 38 U.S.C. § 7103(a). Such 

reconsideration must be accomplished by a panel of Board members who were not involved in the 

prior decision, and the panel may include the Chairman. 38 U.S.C. § 7103(b). Before rendering a 

decision, the panel must review the entire record before the Board. Id. The Chairman reviews the 

sufficiency of motions for reconsideration and denies motions found insufficient, with notice of 

the reasons for that finding, or allows motions to be decided by a panel the Chairman assigns, 

which may include the Chairman. 38 C.F.R. §§ 20.1002, 20.1004 (2022).

An Appointments Clause Violation?

of the Agency and the Secretary have changed since that original empowering order began: "There is hereby created 

in the Veterans' Administration a Board of Veterans' Appeals under the administrative control and supervision of a 

chairman directly responsible to the Administrator of Veterans' Affairs." 
15

VA's adjudication of claims for veterans benefits is overseen by principal officers. 

Regional office personnel designated by a principal officer—the Under Secretary for Benefits—

make initial determinations. Board members, also referred to as veterans law judges,13 decide 

claimants' appeals, acting in the name of the Secretary who appointed them (with the approval of 

the President, no less). The Secretary, a principal officer, has the authority to remove Board 

members for substandard performance or any other reason—"a powerful tool for control." 

Edmond, 520 U.S. at 664. The Chairman, another principal officer, controls their work assignments 

and performance incentive awards, plays a key role in assessing their performance and deciding 

whether it warrants their certification to continue to serve on the Board or their removal, and the 

Chairman has the power to require panel reconsideration of Board members' decisions. And the 

Secretary may address errors by providing equitable relief. Though no principal officer within VA 

can unilaterally reverse a Board decision, the meaningful supervision by principal officers goes 

beyond the supervision that the Supreme Court found inadequate in other contexts in Edmonds

and Arthrex. VA's system provides significant structural safeguards that preserve political 

accountability through direction and supervision of subordinates—"in other words, through a chain 

of command." Arthrex, 141 S. Ct. at 1982; see Edmond, 520 U.S. at 659, 663. The President and 

public should know where to look if there are concerns: to the Secretary and the Chairman.

My concurring colleague deems removal power and meaningful supervisory control 

inadequate, interprets Arthrex as requiring complete control by the Chairman and/or the Secretary, 

and therefore finds that only embedding this Court in the executive branch can save VA's structure. 

I respectfully disagree with his interpretation of Arthrex and other Supreme Court precedent. 

Moreover, Arthrex prescribed a different remedy for the error my colleague finds: requiring 

decisions by administrative law judges to be reviewed (and potentially reversed) by their director. 

Arthrex, 141 S. Ct. at 1986-87. 

The U.S. Court of Appeals for Veterans Claims

My concurring colleague grounds his solution to the problem he sees on a statement by 

Chief Justice Roberts in Arthrex: "[W]hile the Board of Veterans' Appeals does make the final 

decision within the Department of Veterans Affairs . . . its decisions are reviewed by the Court of 

Appeals for Veterans Claims, an Executive Branch entity." 141 S. Ct. at 1984. That statement is 

dictum—made in a judicial opinion but "unnecessary to the decision in the case and therefore not 

precedential."14 Dictum, BLACK'S LAW DICTIONARY 569 (11th ed. 2019). The authority cited for 

that statement, Henderson v. Shinseki, 562 U.S. 428, 431-32 (2011), does not support it. Henderson

says nothing of the branch to which this Court belongs, only that this Court is "an Article I tribunal"

with a scope of review "similar to that of an Article III court." 562 U.S. at 432 n.2. As will be 

detailed, the similarities are extensive enough to denote a familial relationship. And that is the 

13 See 38 C.F.R. § 20.101(b) (2022).

14 Arthrex concerned the appointments of administrative patent judges and the Patent Trial and Appeal Board. 

141 S. Ct. at 1976. The process for VA's administrative adjudication of veterans claims and the independent judicial 

review of Board of Veterans' Appeals decisions by this Court were not at issue. The danger of dictum is that, though 

it is not binding, it "give[s] the appearance of carrying the cloak of judicial acceptance." Lasovick v. Brown, 6 Vet.App. 

141, 153 (1994) (Ivers, J., concurring in part, dissenting in part). But "[d]ictum settles nothing, even in the court that 

utters it." Jama v. Immigr. & Customs Enf't, 543 U.S. 335, 352 n. 12 (2005). 
16

answer to the Chief Justice's concern, expressed in dissent in City of Arlington v. FCC, 569 U.S. 

290, 312-15 (2013), that the pervasive accumulation of legislative, executive, and judicial powers 

in the same branch endangers the separation of powers that safeguards liberty. The City of 

Arlington majority responded: 

Agencies make rules ("Private cattle may be grazed on public lands X, Y, and Z 

subject to certain conditions") and conduct adjudications ("This rancher's grazing 

permit is revoked for violation of the conditions") and have done so since the 

beginning of the Republic. These activities take "legislative" and "judicial" forms, 

but they are exercises of—indeed, under our constitutional structure they must be 

exercises of—the "executive Power."

Id. at 305 n.4. That statement puts the Chief Justice's understandable "discomfort with the growth 

of agency power" in perspective. Id. The City of Arlington majority's description of agency power 

covers VA and the Board, but not this Court, which is not part of the agency but a completely 

independent court of record. The actual creation, structure, and function of this Court do not 

support Arthrex's sidebar characterization. 

The Court's Structure

The statute that established our Court describes it as "a court of record . . . known as the 

United States Court of Appeals for Veterans Claims." 38 U.S.C. § 7251. The statute covering the 

creation of the circuit courts of appeals provides that each circuit court shall be "a court of record, 

known as the United States Court of Appeals for the circuit." 28 U.S.C. § 43(a). The U.S. District 

Court for each district also is a court of record. 28 U.S.C. § 132(a). 

Circuit judges, district judges, and the nine Judges of this Court are "appointed by the 

President, by and with the advice and consent of the Senate." 28 U.S.C. §§ 44(a), 133(a); 38 U.S.C. 

§ 7253. Circuit judges, district judges, and Judges of this Court are subject to residence 

requirements and receive salaries set by statute, 28 U.S.C. §§ 44, 134; 38 U.S.C. § 7253.15 Each 

court has a chief judge, generally chosen based on seniority. 28 U.S.C. §§ 45, 136; 38 U.S.C. § 

7253. District judges and circuit judges "hold office during good behavior," 28 U.S.C. §§ 44, 134. 

Each of this Court's nine Judges is appointed for a term of 15 years and may be removed by the 

President for misconduct or neglect of duty, with any judicial discipline tied to the process for 

circuit and district courts that goes through the Judicial Conference, as spelled out in 28 U.S.C. §§ 

354(b)-361. 38 U.S.C. § 7253(g). Circuit judges, district judges, and the nine Judges of this Court 

may retire when they meet certain age and service requirements—which are the same for each 

court. 28 U.S.C. § 371; 38 U.S.C. § 7296(b). For all three courts, retired judges who continue to 

work the equivalent of 3 months each year continue to receive the salary of the office, and those 

who do not continue to work receive retired pay at the rate of pay applicable at the time of 

retirement. 28 U.S.C. § 371; 38 U.S.C. § 7257. At this Court, retired judges who give notice of 

their availability for further service and their willingness to be recalled may be recalled for further 

15 Judges of this Court are salaried "at the same rate as is received by judges of the United States district 

courts." 38 U.S.C. § 7253.
17

service and "exercise all of the judicial powers and duties of the office of a judge in active service." 

38 U.S.C. § 7257. 

Pursuant to 38 U.S.C. § 7264(a) and 28 U.S.C. § 2071, the Court has prescribed rules of 

practice and procedure, as well "E-Rules" regarding the Court's use of the federal judiciary's 

automated system for case management and document filing, known as CM/ECF, which stands 

for Case Management/Electronic Case Filing. See U.S. VET. APP. R. 1-49. The Court also has 

constituted a Committee on Admission and Practice, Rules Advisory Committee, and Judicial 

Advisory Committee. U.S. VET. APP. R. 2, 40; Misc. Order 04-17. 

The Court has the power to punish by fine or imprisonment contempt of its authority. 38 

U.S.C. § 7265(a). The statute specifically lists

(1) misbehavior of any person in its presence or so near thereto as to obstruct the 

administration of justice;

(2) misbehavior of any of its officers in their official transactions; or

(3) disobedience or resistance to its lawful writ, process, order, rule, decree, or 

command.

Id. And "[t]he Court shall have such assistance in the carrying out of its lawful writ, process, order, 

rule, decree, or command as is available to a court of the United States." 38 U.S.C. § 7265(b). The 

U.S. Marshals Service provides such assistance, as well as judicial security.

The Court is authorized to hold judicial conferences involving the Judges of the Court, 

persons admitted to practice before the Court, and others active in the legal profession, "for the 

purpose of considering the business of the Court and recommending means of improving the 

administration of justice within the Court's jurisdiction." 38 U.S.C. § 7286. The Court is also 

authorized to impose a reasonable registration fee for participation in its judicial conferences, as 

well as "a reasonable periodic registration fee on persons admitted to practice before the Court." 

38 U.S.C. § 7285.

In matters of ethics and financial disclosure, the Judges of this Court are listed in the 

definition of "judicial officer," and employees of this Court at a described pay rate are "judicial 

employees," 5 U.S.C App. 4 §§ 101(f)(10), 101(f)(11), 109(8), 109(10)—and not as officers or 

employees in the executive branch, 5 U.S.C App. 4 § 101(f)(3)—and the "supervising ethics 

office" for the judicial officers and judicial employees of this Court is the Judicial Conference of 

the United States, 5 U.S.C App. 4 § 109(18), which administers the provisions of the Ethics in 

Government Act for the judicial officers and judicial employees of this Court. 5 U.S.C App. 4 § 

111. With respect to taxing property sales, the tax code likewise defines Judges of this Court as 

"judicial officers," rather than as officers of the executive branch, for purposes of promoting 

compliance with conflict-of-interest requirements. 26 U.S.C. § 1043(b)(6). 

Because this Court is, well, a court and not an agency in the executive branch, it is not 

subject to the Freedom of Information Act, which defines "agency" as not including "the courts of 

the United States." 5 U.S.C. § 551(1)(B); see 5 U.S.C. § 552(f)(1); Megibow v. Clerk of U.S. Tax 

Ct., No. 04 CIV. 3321 (GEL), 2004 WL 1961591, at *4 (S.D.N.Y. Aug. 31, 2004) ("Congress has 
18

left no doubt about the Tax Court's institutional nature [as a court] . . . and any contention that 

[legislative courts16] really constitute executive agencies of the sort to which FOIA applies would 

be baseless."), aff'd, 432 F.3d 387 (2d Cir. 2005). And the Judges of this Court—like Article III 

judges—have absolute immunity from liability for damages for acts committed in their judicial 

capacity. See AV2 v. McDonough, No. CV 22-369, 2022 WL 1173180, at *8 (E.D. Pa. Apr. 20, 

2022) (military judge); Chisum v. Colvin, 276 F. Supp. 2d 1, 3 (D.D.C. 2003) (Tax Court judge).

The Court has, by statute, a Clerk of Court, deputies, law clerks, secretaries, and other 

employees, all able to be appointed "without regard to the provisions of title 5 governing 

appointments in the competitive service." 38 U.S.C. § 7281(a)-(c). The statute empowers the Court 

to fix the rates of pay for these employees without regard to executive branch limitations and 

provides that, "[t]o the maximum extent feasible, the Court shall compensate employees at rates 

consistent with those for employees holding comparable positions in the judicial branch." 38 

U.S.C. § 7281(d). Similar to the funding for Article III courts, this Court has a separate budget it 

submits "for inclusion in the budget of the President . . . without review within the executive 

branch." 38 U.S.C. § 7282(a). To ensure that the Court stands on equal footing with other federal 

courts, a statute specifically provides that the Court "may exercise, for purposes of management, 

administration, and expenditure of funds of the Court, the authorities provided for such purposes 

by any provision of law . . . applicable to a court of the United States (as that term is defined in 

section 451 of title 28)." 38 U.S.C. § 7287.

The Court's Function

This Court's function and powers are "quintessentially judicial." Freytag v. Comm'r of 

Internal Revenue, 501 U.S. 868, 891 (1991). The Court has "exclusive jurisdiction to review [final] 

decisions of the Board of Veterans' Appeals." 38 U.S.C. § 7252. Similarly, circuit courts of appeals 

"have jurisdiction of appeals from all final decisions of the district courts."17 28 U.S.C. § 1291. 

Like a district court, the Board conducts hearings and engages in factfinding—albeit from within 

the executive branch agency responsible for resolving the claims at issue. See 38 U.S.C. § 7107(c). 

Like a circuit court, this Court conducts appellate review based on the record. 38 U.S.C. § 7252(b). 

Decisions of this Court are subject to review by the Federal Circuit. 38 U.S.C. §§ 7252(c), 7292.

From its inception, this Court has reviewed the record of proceedings on claims by veterans 

and their family members before VA and the Board of Veterans' Appeals and rendered binding 

judicial opinions, decisions, and orders that 

(1) decide all relevant questions of law, interpret constitutional, statutory, and 

regulatory provisions, and determine the meaning or applicability of the terms of 

an action of the Secretary;

(2) compel action of the Secretary unlawfully withheld or unreasonably delayed;

16 Courts created by Congress pursuant to Article I are sometimes referred to as "legislative courts" to reflect 

the nature of their birth. No one contends that such courts perform legislative functions or are part of the legislative 

branch.

17 Of course, the jurisdiction of each circuit court of appeals is regional, while this Court's jurisdiction is 

nationwide. 
19

(3) hold unlawful and set aside decisions, findings . . . , conclusions, rules, and 

regulations issued or adopted by the Secretary, the Board of Veterans' Appeals, or 

the Chairman of the Board found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or in 

violation of a statutory right; or

(D) without observance of procedure required by law; and

(4) In the case of a finding of material fact adverse to the claimant made in reaching 

a decision in a case before the Department with respect to benefits under laws 

administered by the Secretary, hold unlawful and set aside or reverse such finding 

if the finding is clearly erroneous.

38 U.S.C. § 7261. 

In fiscal year 2021, the total number of dispositions by the Court as a whole—including 

decisions on appeals, petitions, applications under the Equal Access to Justice Act, and requests 

for reconsideration or decision by a three-judge panel—was 17,002. See U.S. CT. OF APPEALS FOR 

VETERANS CLAIMS, FISCAL YEAR 2021 ANN. REP., http://www.uscourts.cavc.gov/report.php. An 

early case highlighted "the binding effect of this Court's published opinions as precedent in 

pending and future cases," Harrison v. Derwinski, 1 Vet.App. 438, 438 (1991), citing Webster v. 

Reproductive Health Services, 492 U.S. 490, 518 (1989), for the proposition that "stare decisis is 

a cornerstone of our legal system." And my concurring colleague has emphasized that "[s]tare 

decisis . . . the idea that today's Court should stand by yesterday's decisions—is "'a foundation 

stone of the rule of law.'" Ravin v. Wilkie, 31 Vet.App. 104, 118 (2019) (Falvey, J., dissenting) 

(quoting Kimble v. Marvel Ent., 576 U.S. 446, 455 (2015)). In contrast, Board decisions are not 

precedential. 38 C.F.R. § 20.1304 (2022).

"Although not an Article III court, this Court has adopted the case-or-controversy 

requirement as a basis for exercising our exclusive jurisdiction in the veterans benefits arena, see

38 U.S.C. § 7252, including the requirement that a case be dismissed when it becomes moot during 

the course of the appeal." Cardona v. Shinseki, 26 Vet.App. 472, 474 (2014); see Mokal v. 

Derwinski, 1 Vet.App. 12, 15 (1990) (adopting "the jurisdictional restrictions of the Article III case 

or controversy rubric").

The statute spelling out the scope of our review specifies that this Court's mandate includes 

interpreting constitutional provisions and holding unlawful and setting aside decisions, 

regulations, and the like issued or adopted by the Secretary, the Chairman of the Board, or the 

Board found to be "contrary to constitutional right, power, privilege, or immunity." 38 U.S.C. § 

7261(a)(1), (3). In addition, "[t]he Court's authority to find a statute unconstitutional is well settled 

by precedential decisions of the Court," recognized by other federal appellate courts, reflected in 

the legislative history of the establishment of the Court, and "'inherent in the Court's status as a 

Court of law.'" Copeland v. Shinseki, 26 Vet.App. 86, 90 n.4 (2012) (collecting cases and quoting 

Dacoron, 4 Vet.App. at 119). 
20

The statute that provides for the award of attorney fees under the Equal Access to Justice 

Act has, for 30 years, specified that this Court is a court that can make such awards. 28 U.S.C. § 

2412(d)(2)(F) ("'[C]ourt' includes . . . the United States Court of Appeals for Veterans Claims"). 

As this Court has chronicled,

"'[t]he objective of EAJA is to eliminate financial deterrents to individuals 

attempting to defend themselves against unjustified government action. Veterans 

are among the types of individuals the statute was intended to help.'" Abbs v. 

Principi, 237 F.3d 1342, 1347 (Fed. Cir. 2001) (quoting H.R. Rep. No. 102-1006, 

at 25 (1992), 1992 U.S.C.C.A.N.[] 3921, 3934). "EAJA applies, and its central 

policy is of particular significance, in the 'uniquely pro-claimant' system for 

adjudicating veterans' claims for benefits" because EAJA "'helps to ensure that 

[veterans] will seek an appeal when the [Department of Veterans Affairs] has failed 

in its duty to aid them or has otherwise erroneously denied them the benefits that 

they have earned.'" Wagner v. Shinseki, 733 F.3d 1343, 1344 (Fed. Cir. 2013) 

(alterations in original) (quoting Kelly v. Nicholson, 463 F.3d 1349, 1353 (Fed. Cir.

2006)).

Froio v. McDonald, 27 Vet.App. 352, 355–56 (2015)

In 2017, the Federal Circuit held that this Court has the authority to certify and adjudicate 

class action cases "under the All Writs Act, other statutory authority, and the . . . Court's inherent 

powers." Monk v. Shulkin, 855 F.3d 1312, 1318 (Fed. Cir. 2017). The Court also has the power to 

issue a writ of mandamus and all writs appropriate in aid of our jurisdiction and our prospective 

jurisdiction where failure to act "would forever frustrate the ability of [this Court] to exercise its 

appellate jurisdiction.'" Love v. McDonough, 35 Vet.App. 336, 342 (2022) (quoting Erspamer v. 

Derwinski, 1 Vet.App. 3, 8 (1990)). "The [All Writs Act] 'permits federal courts to fill gaps in their 

judicial power where those gaps would thwart the otherwise proper exercise of their jurisdiction.'" 

Gardner-Dickson v. Wilkie, 33 Vet.App. 50, 55 (2020) (quoting Monk, 855 F.3d at 1318).

If the foregoing is not enough, the United States officially lists this Court in the judicial 

branch. The United States Government Manual, published by the Office of the Federal Register, 

National Archives and Records Administration, describes this Court as one of the "Special Courts" 

within the judicial branch.18 The official website of the U.S. Government, www.usa.gov, lists the 

Government branch of this Court as "Judicial." 19

Legislative History

18 OFF. OF THE FED. REG., NAT'L ARCHIVES & RECS. ADMIN., THE UNITED STATES GOVERNMENT MANUAL

166 (2021), https://www.govinfo.gov/content/pkg/GOVMAN-2021-12-22/pdf/GOVMAN-2021-12-22.pdf.

19 See U.S. Court of Appeals for Veterans Claims, https://www.usa.gov/federal-agencies/u-s-court-ofappeals-for-veterans-claims (last accessed Oct. 19, 2022). USA.gov is the federal internet portal established pursuant 

to the E-Government Act of 2002; it is administered by a division of the U.S. General Services Administration's 

Technology Transformation Services.
21

The other concurrence misapprehends the legislative history of the Veterans' Judicial 

Review Act (VJRA).

20 The portion of that history my concurring colleague recites—the proposal 

to establish this Court in the executive branch in place of the Board—was rejected in a sea change 

that resulted in the creation of the independent court providing judicial review from outside the 

executive branch agency. That outcome was a compromise by Representatives who favored the 

intra-executive branch proposal the other concurrence cites, and by Senators who favored sending 

veterans' cases to the district or circuit courts. In the words of a principal sponsor in the House: 

"[W]e have crafted a compromise bill which will allow an independent review by a court of the 

VA's decision on a veteran's claim." 134 CONG. REC. 31770 (1988). Another Representative noted 

that "[t]he specialty court will be an independent, impartial body." 134 CONG. REC. 31790. Yet 

another said the new Court, "as a judicial tribunal, has the authority to establish its own rules of 

practice and procedure" and "has full judicial standing, including authority to issue and enforce its 

judicial decrees and writs . . . like any other U.S. court." 134 CONG. REC. 31788.

A Senate sponsor said independent judicial review was required because 

[f]undamental principles of due process, as guaranteed by the Constitution, require 

an independent review of administrative action affecting individual's liberty or 

property interests. Although there are earlier court decisions suggesting that 

veterans' benefits are gratuities and not worthy of general due process protections, 

such a viewpoint is no longer valid, if it ever was, either philosophically—veterans' 

benefits are earned by military service—or legally. A number of decisions rendered 

by the Supreme Court in the last two decades . . . have held that various statutory 

governmental benefits are legal entitlements and, thus, protected property interests 

of the beneficiary. I do not believe that review by the Board of Veterans' Appeals 

provides the required independent action required by due process.

134 CONG. REC. 31465-66. 

The budget provision now codified at 38 U.S.C. § 7282 was an effort to ensure the 

independence of the Court by providing that the Court's budget be submitted by the Court to 

Congress "without any review within the executive branch . . . . [to] enable the court to conduct its 

business without the specter of executive branch influence over or involvement in its proceedings." 

134 CONG. REC. 31470.

Some in Congress were even more direct about their branch expectations. One 

Representative supported the compromise bill to "guarantee the veteran actual judicial review of 

all VA decisions" and guarantee accountability in that the "Constitution clearly defined the role of 

the three branches of our Government and provided for court review of actions by the other two 

branches. With this right comes the right that any individual citizen has to go to court and seek a 

review." 134 CONG. REC. 27792. And a Senator similarly said: 

To me it is unacceptable to deny veterans, their dependents and their survivors the 

basic protection of the independent judicial branch of our Government. S. 11 will 

20 Ante at 6 n.3.
22

correct the current shortcomings and ensure that veterans and other claimants 

before the VA receive all benefits to which they are entitled under the law.

134 CONG. REC. 31224.

Article I Judicial Power of the United States

My concurring colleague notes that administrative agency power is executive power.21 Just 

so, but any implication that this Court exercises administrative agency power completely misses 

the mark. Next he contends of this Court that "[b]ecause we wield neither legislative power under 

Article I nor judicial power under Article III, we must wield executive power under Article II."22

That jumbles the power structure the Supreme Court described with a rhetorical question in 1933: 

"If the power exercised by legislative courts is not judicial power, what is it? Certainly it is not 

legislative, or executive, or administrative power, or any imaginable combination thereof." 

Williams v. United States, 289 U.S. 553, 567 (1933). And Williams traced the lineage of its holding 

that "judicial power apart from [Article III] may be conferred by Congress upon legislative courts" 

to "the opinion of Chief Justice Marshall in American Insurance Company et al. v. Canter, 1 Pet. 

511, 546, 7 L. Ed. 242 [1828]." Williams, 289 U.S. at 565. Lest this principle be thought lost in 

the dustbin of history, it was fully embraced in Freytag as 

[the Supreme] Court's time-honored reading of the Constitution as giving Congress 

wide discretion to assign the task of adjudication in cases arising under federal law 

to legislative tribunals . . . [The Supreme Court's] cases involving non-Article III 

tribunals have held that these courts exercise the judicial power of the United 

States.

Freytag, 501 U.S. at 889 (emphasis added). 

 

For more than 30 years, this Court has relied on Freytag to state that we exercise "the 

judicial power of the United States." Jones v. Derwinski, 1 Vet.App. 596, 607 (1991); see, e.g.,

Dacoron, 4 Vet.App. at 119 ("[This Court's] power to review claims pertaining to the 

constitutionality of statutory and regulatory provisions. . . . is inherent in the Court's status as a 

court of law."); Copeland, 26 Vet.App. at 90 n.4 (highlighting "our duty as a Court exercising 

judicial power" to address constitutional issues); Rickett v. Shinseki, 26 Vet.App. 210, 222 (2013) 

(per curiam order) (en banc), withdrawn on other grounds, 27 Vet.App. 240 (2015). In Rickett, this 

Court noted that "a judicial appeal and its adversarial process . . . [are] decidedly not within VA," 

and explained: "Indeed, VA is an executive branch agency and the Secretary is an adverse party 

in litigation before the Court, which exercises the judicial power of the United States." 26 Vet.App. 

at 222.

There is no sound reason to disregard either these precedential decisions by our Court or 

the Supreme Court's decision in Freytag. My concurring colleague posits that Freytag "does not 

21 Ante at 6 nn.2, 7.

22 Ante at 7.
23

appear to survive later Supreme Court decisions," citing Stern v. Marshall.

23 He emphasizes the 

observation in Stern that "Article III of the Constitution provides that the judicial power of the 

United States may be vested only in courts whose judges enjoy the protections set forth in that 

Article." Stern v. Marshall, 564 U.S. 462, 503 (2011).

24 Based on that view, the Supreme Court 

concluded that Congress exceeded its constitutional authority by empowering the Bankruptcy 

Court "to enter a final judgment on a state law counterclaim that is not resolved in the process of 

ruling on a creditor's proof of claim." Id. But Stern does not even mention Freytag, much less 

overrule it. And the expansive Stern view of the exclusivity of Article III (upon which my 

colleague relies) did not prevail in the next Supreme Court case to consider the subject in the 

bankruptcy context.25

In more than three decades, no Supreme Court case has overruled Freytag or even 

expressly questioned it. Arthrex endorses Freytag as an example of a proper appointment and 

adjudication plan. 141 S. Ct. at 1984. To be sure, the other concurrence may accurately predict 

that a decision affirmatively segregating Article III judges from Article I judges is coming 

someday. None of the Supreme Court Justices that decided Freytag are on the Court now, and 

some current Justices have embraced Justice Scalia's partial concurrence in Freytag, rather than 

the majority opinion.26 See, e.g., Ortiz v. United States, 138 S. Ct. 2165, 2192 (2018) (Alito, J. 

dissenting); Oil States Energy Servs., LLC v. Greene's Energy Grp., LLC, 138 S. Ct. 1365, 1374, 

1378 (2018). Oil States provides more opacity than clarity, noting the Supreme Court's 

inconsistency in public rights cases and adding some of its own—echoing the Stern proposition 

that "Congress cannot 'confer the Government's judicial Power on entities outside Article III,'" but 

holding that agency board adjudication of a patent dispute was permissible because the board did 

not exercise Article III judicial power, citing Williams. 138 S. Ct. at 1372-73, 1378. Williams held 

that "judicial power apart from [Article III] may be conferred by Congress upon legislative courts," 

289 U.S. at 565, so it was not surprising that the Chief Justice joined a dissent contending that the 

Oil States majority had not really applied Stern. Oil States, 138 S. Ct. at 1381. The Ortiz majority 

follows Freytag (without citing it) by recognizing that military courts, like territorial courts, 

exercise judicial power, just not under Article III.27 138 S. Ct. at 2175-78. Arthrex and Stern were 

decided by the slimmest of margins. What should be determinative is not foresight but fidelity to 

standing precedent—Freytag—and to the principle of independent judicial review upon which 

both our Nation and this Court were founded. 

23 Ante at 8.

24 See id.

25 In Wellness International Network, Ltd. v. Sharif, the Supreme Court observed that "[a]n expansive reading 

of Stern . . . would be inconsistent with the opinion's own description of its holding," which the Stern court said was 

a narrow one that did not change much. 575 U.S. 665, 682 (2015). Dissenting from the Wellness holding that "Article 

III permits bankruptcy courts to decide Stern claims submitted to them by consent," id. at 685, Chief Justice Roberts 

declared that Article III's life tenure and salary protection was a structural safeguard that must be guarded even against 

consent. Id. at 688.

26 My concurring colleague also prefers and relies on Justice Scalia's Freytag concurrence. Ante at 8. 

27 See also Fin. Oversight & Mgmt. Bd. for P.R. v. Aurelius Inv., LLC, 140 S. Ct. 1649, 1659, 1664 (2020)

(first citing Am. Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511, 546 (1828); then citing Palmore v. United States, 411 

U.S. 389, 407 (1973)) (providing that "territorial courts may exercise the judicial power of the Territories,", and the 

Article I court for the District of Columbia exercises local judicial power).
24

My colleague also throws shade on Freytag by endorsing the interpretation of it in Kuretski 

v. Commissioner of Internal Revenue. Rejecting a taxpayer's erroneous assertion that Tax Court 

judges exercise Article III judicial power, Kuretski said that the Freytag Court "used the phrase 

'judicial power' in 'an enlarged sense,' not in the particular sense employed by Article III." 755 

F.3d 929, 941 (D.C. Cir. 2014). The use of the words "in 'an enlarged sense'" might be a fair 

characterization of Freytag if Kuretski—and then my colleague—did not define "'in an enlarged 

sense'" as encompassing "'all those administrative duties the performance of which involves an 

inquiry into the existence of facts and the application to them of rules of law.'" Kuretski, 755 F.3d 

at 941 (quoting Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 280 (1855)).28

That definition distorts and diminishes Freytag. The "enlarged sense" characterization comes from 

Justice Scalia's partial concurrence, not the majority opinion. Freytag, 501 U.S. at 909-10 (Scalia, 

J., concurring in part). The Freytag holding quite specifically and thoroughly sets out that Article 

I courts, such as the Tax Court, that perform exclusively judicial functions exercise the judicial 

power of the United States and are "Courts of Law" within the meaning of the Appointments 

Clause. Id. at 888-92. Freytag thus covers this Court, as we have previously held.29

Moreover, the Tax Court persuasively rebutted Kuretski in Battat v. Commissioner of 

Internal Revenue, describing in detail the Tax Court's exclusively judicial function and embracing 

the Freytag holding that the Tax Court exercises only judicial power (and not executive power).30

148 T.C. 32, 36-48, 59 (2017). The Battat Court declared: "While the Tax Court exercises a portion 

of the judicial power of the United States, . . . it has jurisdiction to adjudicate only public rights 

disputes, . . . and thus does not exercise that portion of the judicial power that is reserved for Article 

III judges." Id. at 53. So it is with this Court. And this Court has an even clearer hold on the portion 

of the judicial power of the United States under Article I because this Court did not originate as a 

board that was designated as an agency in the executive branch. Cf. id. at 34-35.

In Wellness, the Supreme Court emphasized the importance of determining whether there 

was impermissible encroachment that threatened the institutional integrity of the judicial branch 

by looking to the practical effect of the congressional exercise of its Article I powers, rather than 

"'formalistic and unbending rules.'" 575 U.S. at 678-80 (quoting Commodity Futures Trading 

Comm'n v. Schor, 478 U.S. 833, 851 (1986)). The Schor factors Wellness embraced and applied 

included the extent to which the Article I court "exercises the range of jurisdiction and powers 

normally vested only in Article III courts, the origins and importance of the right to be adjudicated, 

and the concerns that drove Congress to depart from the requirements of Article III.'" Wellness, 

575 U.S. at 678-79 (quoting Schor, 478 U.S. at 851).

28 Ante at 8.

29 Supra at 22.

30 As Battat highlighted, Kuretski also was wrong to equate the Tax Court with the Court of Appeals for the 

Armed Forces (CAAF). 148 T.C at 40-41 n.15. In Edmond, the Supreme Court noted that the Uniform Code of Military 

Justice states that Court of Appeals for the Armed Forces is "located for administrative purposes only in the 

Department of Defense" and "its judges must meet annually in committee with the Judge Advocates General and two 

members appointed by the Secretary of Defense to survey the operation of the military justice system," 520 U.S. at 

665 (quoting 10 U.S.C. §§ 941, 946). See also Ortiz, 138 S. Ct. at 2176 ("Congress located the CAAF . . . within the 

Executive Branch, rather than the judicial one."). 
25

Measured against these Wellness/Schor factors, it is clear that the creation of this Court and 

its judicial power do "not usurp the constitutional prerogatives of Article III courts." See Wellness, 

575 U.S. at 679. Our jurisdiction is narrowly limited to the independent judicial review of final 

decisions of the Board regarding veterans benefits claims. The system that Congress created for 

the adjudication of veterans claims "is strongly and uniquely pro-claimant," Hodge v. West, 155 

F.3d 1356, 1362 (Fed. Cir. 1998), and dramatically more protective of veterans rights than the 

construct for ordinary civil litigation. Henderson v. Shinseki, 562 U.S. at 440. These systemic 

choices reflect national gratitude for the "the special sacrifices made by veterans of military 

service." Johnson v. Robison, 415 U.S. 361, 381 n.15 (1974). The longstanding solicitude of 

Congress for veterans, see United States v. Oregon, 366 U.S. 643, 647 (1961), is reflected in "laws 

that 'place a thumb on the scale in the veteran's favor in the course of administrative and judicial 

review of VA decisions.'" Henderson, 562 U.S. at 440 (quoting Shinseki v. Sanders, 556 U.S. 396, 

416 (2009) (Souter, J., dissenting)).

Nothing indicates that by creating a means of independent judicial review of VA decisions, 

Congress sought to aggrandize itself, humble the judiciary, or emasculate constitutional courts. 

See Wellness, 575 U.S. at 679-80; Schor, 478 U.S. at 850. Quite the contrary. The statutory choices 

and legislative history reflect that Congress wanted to afford veterans, their dependents, and 

survivors due process through court review by the independent judicial branch and consequently 

established a specialty court to provide that review with a focus that would facilitate expeditious 

resolution, consistency, and the development of expertise and would not overburden district and 

circuit courts. 

The Judicial Branch

The foregoing demonstrates and other cases have affirmed that this Court provides judicial 

review from outside the executive branch. See George v. McDonough, 142 S. Ct. 1953, 1957 

(2022) ("If the Board . . . denies relief, the veteran may seek further review outside the agency" 

by appealing to this Court. (emphasis added)); Romero v. Tran, 33 Vet.App. 252, 259 (2021) 

(noting, in applying the presumption of regularity, that the presumption's rationale includes 

separation of powers and the judiciary's conscious effort not to intrude on the executive branch's 

operations without good cause); Ravin, 31 Vet.App. at 124 (Falvey, J., dissenting) (citing with 

approval a prior criticism of the Court for departing from "'judicial review of policies established 

by the popularly-elected and therefore publicly accountable legislative and executive branches'" 

(quoting Carpenter v. Principi, 15 Vet.App. 64, 81 (2001))); DeBeaord v. Principi, 18 Vet.App. 

357, 368 (2004) (holding that the Court could not rewrite a statute, as the appellant sought, because 

that remedy was "within the province of the legislative and executive branches, which, 

respectively, make and execute the laws"); Werden v. West, 13 Vet.App. 463, 468 (2000) ("[T]he 

Court does not have jurisdiction to review the manner in which the Secretary disburses [the special 

adaptive housing] grant. . . . [because that] is exactly the type of question of policy or resource 

management that is made by the executive branch and is not an appropriate matter for judicial 

review."). 

One justification for Article I courts that has long been recognized distinguishes private 

lawsuits at common law from those involving public rights "which arise between the Government 

and persons subject to its authority," such that Congress completely controls whether to "reserve 
26

to itself the power to decide, . . . delegate that power to executive officers, or . . . commit it to 

judicial tribunals." Crowell v. Benson, 285 U.S. 22, 50-51 (1932). Providing a familiar illustration 

of an administrative agency Congress created to determine a public right, Crowell highlighted the 

congressional power to regulate payments to veterans.31 Id. at 51 That truth covers the Board—as 

an arm of VA, an administrative agency in the executive branch—but only beginsthe consideration 

that leads to a different conclusion for this Court. Crowell recognized that such consideration 

properly looks not merely to form but to substance. 285 U.S. at 53. "The enduring lesson of 

Crowell is that practical attention to substance rather than doctrinaire reliance on formal categories 

should inform application of Article III."32 Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 

568, 587 (1985). 

My concurring colleague opts for "doctrinaire reliance on formal categories" over 

substance by contending that this Court's status as an Article I tribunal "means that the Court wields 

executive power" rather than judicial power, and therefore cannot be in the judicial branch.33 But 

the Supreme Court has made clear that the judicial branch includes more than just Article III 

judges. Neither bankruptcy judges nor magistrate judges enjoy Article III tenure and salary 

protections, but both serve in the judicial branch as adjuncts of the district court. See Wellness, 575 

U.S. at 668; N. Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 77 (1982); 28 U.S.C. 

§§ 152(a) (a "bankruptcy judge shall be appointed for a term of 14 years"), 631(e) ("The 

appointment of any individual as a full-time magistrate judge shall be for a term of eight years."). 

Moreover, in 1989, the Court held that there was "no separation-of-powers impediment to the 

placement of the Sentencing Commission within the Judicial Branch." Mistretta v. United States, 

488 U.S. 361, 390 (1989). The Court looked to constitutional framer James Madison's recognition 

"that our constitutional system imposes upon the [b]ranches a degree of overlapping responsibility, 

a duty of interdependence as well as independence" to govern effectively. Id. at 381. Though the 

Sentencing Commission is composed of judges and non-judges, the Court observed that it had 

previously recognized Congress's power to create similar entities with mixed staffs, including the 

Judicial Conference of the United States, the Rules Advisory Committees, and the Administrative 

Office of the United States Courts (whose responsibilities include the administration of the entire 

U.S. Probation Service). Id. at 388-89. Though the Sentencing Commission wields rulemaking 

power rather than adjudicatory power, the Court found that the nature of the Commission's work 

was related and "not incongruous or inappropriate" to that of the judicial branch. Id. at 396. 

The Mistretta Court also observed that the judges who served as commissioners would 

wield administrative, rather than judicial, power. Id. at 404. And the Court found that the 

31 The Chief Justice's dissent in Wellness agreed:

With narrow exceptions, Congress may not confer power to decide federal cases and controversies 

upon judges who do not comply with the structural safeguards of Article III. Those narrow 

exceptions permit Congress to establish non-Article III courts to . . . adjudicate disputes over "public 

rights" such as veterans' benefits.

575 U.S. at 689-90.

32 "After Thomas, it would not offend the Constitution if an Article I court determined private rights if such 

rights were 'closely integrated into a public regulatory scheme' over which the Article I tribunal had been assigned 

jurisdiction by Congress." Smith v. Derwinski, 1 Vet.App. 267, 273 (1991) (quoting Thomas, 473 U.S. at 586).

33 Ante at 6-7. 
27

President's power to appoint and remove commissioners, including Article III judges, posed a 

"negligible threat to judicial independence"—because judges could only be stripped of their status 

on the Commission and Congress had safeguarded the independence of the Commission from 

executive control by specifying that the President could remove commissioners only for good 

cause, thereby ensuring that they would not be subject to coercion. Id. at 410-11; see Battat, 148

T.C. at 55-56 n.35. Though Battat did not make a branch determination, it noted that Mistretta

held that the limited "for cause" interbranch removal power of the President was not a separation 

of powers problem, even for an Article I appointment within the judicial branch. Id.

It should be obvious that if the work of an administrative rulemaking entity such as the 

Sentencing Commission is sufficiently related to the work of the judicial branch to belong there, 

the exclusively judicial review by this Court is, too. It is equally clear that the Sentencing 

Commission, magistrate judges, bankruptcy judges, this Court, and the Article III courts are not 

equivalent entities. But that fact is not against or beside the point, as my concurring colleague 

seems to argue. It is the point—being an Article III judge is not a prerequisite for judiciary branch 

membership. And the comparison to the Sentencing Commission highlights emphatically that this 

Court's work is far from "incongruous or inappropriate" to the judicial branch. Mistretta, 488 U.S. 

at 396. The interdependence that Madison and the Mistretta Court saw is not an elitist, insular 

judicial branch, but one encompassing judges and some non-judges that "share the common 

purpose of providing for the fair and efficient fulfillment of [the judiciary's] responsibilities." Id.

at 389. The choice by Congress to create this Court to provide independent judicial review most 

assuredly does not diminish the likelihood of impartial decisionmaking, free from political 

influence; Congress's choice increases that likelihood exponentially, and that choice does not 

encroach on the judicial powers of Article III courts, it augments them. Congress may confer on 

an Article I court the power to decide federal cases and controversies over public rights such as 

veterans' benefits, see Wellness, 575 U.S. at 689-90, and has done so. That action does not render 

the Court an executive agency. The "scholarly support" my concurring colleague has mustered 

unwittingly solves the puzzle in a way that contradicts his (and the cited author's) premise: 

What makes applying law to facts an exercise of the judicial power is the nature 

and purpose of that application.. . . .If it is done by an executive agency to guide its 

actions, it is not an exercise of the judicial power. If, however, it is done for 

opposing parties by a neutral with the purpose of authoritatively pronouncing the 

law in officially resolving a dispute between these opponents, then it is an exercise 

of the judicial power.

Craig A. Stern, What's A Constitution Among Friends?—Unbalancing Article III, 146 U. PA. L.

REV. 1043, 1052-53 (1998). As the Supreme Court called it in Freytag, the Court exercises the 

judicial power of the United States under Article I (rather than Article III). 

Reconciliation of the Supreme Court case variations should yield a principled line that 

places this Court in the judicial branch, for it is not an agency entity using court-like procedures 

but fully a federal court exercising a portion of the judicial power of the United States by providing 

independent judicial review of agency decisions regarding claims for veterans benefits.

Conclusion
28

In sum, the petitioner has not met the standards for either extraordinary relief or recall of 

mandate, as the Court's opinion covers. Since Arthrex, the U.S. Court of Appeals for the Federal 

Circuit has declined to address the question my concurring colleague would resolve—whether the 

manner in which Board members are appointed violates the Appointments Clause—because the 

plaintiff, like Mr. Prewitt, "ha[d] not addressed the substantial degree of supervision and control 

exercised by the Board over the assignments and decisions of the Board's administrative judges." 

Rodriguez v. Dep't of Veterans Affs., 8 F.4th 1290, 1308 (Fed. Cir. 2021). However, if "our 

rejection of the veteran's construed motion to recall mandate warrants a fuller explanation" and 

"requires us to consider this Court's place in the Constitution's structure,"34 I would deny the 

petition because, though the Court is a judicial body wielding the judicial power of the United 

States pursuant to Article I and not an executive agency supervising the Board, the Board has 

meaningful supervision by the Secretary and the Chairman of the Board, who are accountable to 

the President. See Rodriguez, 8 F.4th at 1308. If yet clearer accountability is deemed necessary, 

the determination of how to address any deficiency should be made by legislative enactment or 

executive regulation that is mindful of the Supreme Court's remedy in Arthrex—declaring the 

statute at issue unconstitutional to the extent that it precluded the patent board's director from 

reversing the decisions of administrative patent judges, 141 S. Ct. at 1986-87—and the current 

requirement that impartial Board members render "just and speedy decisions" in accordance with 

applicable statutes, regulations, and precedent opinions of VA's General Counsel. See 38 C.F.R. 

§§ 20.1(b) (2022) (the Board's rules of practice "are to be construed to secure a just and speedy 

decision in every appeal"); 20.105 (2022) ("criteria governing disposition of appeals"); 20.107 

(providing for disqualification of a Board member if there are "circumstances which might give 

the impression of bias either for or against the appellant."). The answer is not to reimagine this 

Court by ignoring or discarding its creation, structure, and function. The statutes and regulations 

that reflect the establishment of this Court and govern its independent judicial review are not, as 

my colleague hints, mere trappings like a powdered wig or a black robe to make agency 

adjudication seem judicial. 

Acknowledging that the Court belongs in the judiciary is not an encroachment that 

undermines the separation of powers principle, diminishes the purity or institutional integrity of 

the judicial branch, or threatens the life tenure of Article III judges. Article III's tenure and salary 

protections exalt and protect the federal judges imbued with the broadest possible substantive 

jurisdiction. Though "Congress could choose to rest the full share of the Judiciary's labor on the 

shoulders of Article III judges," Wellness, 575 U.S. at 680, Congress has acted under Article I to 

supplement district courts with magistrate and bankruptcy judges and establish specialized federal 

courts to exercise judicial power over cases involving public rights. Our constitutional creation 

story is the same as that of the federal circuit courts and district courts—by Congress, under Article 

I—except we were created nearly 200 years later and our creation does not confer Article III's 

tenure and salary protection. Proper consideration of this Court's place in the judicial hierarchy 

recognizes that it is an inferior court that was created to provide, and actually provides,

independent judicial review35 by Article I judges with statutory tenure and salary protections that 

34 Ante at 4.

35 Moreover, the independent judicial review this Court provides is itself reviewable only by Article III's U.S. 

Court of Appeals for the Federal Circuit and the U.S. Supreme Court, and not by or with executive supervision or 
29

approach those for Article III judges. And the difference in such protections is neither corrosive 

nor branch determinative, but tolerable for a narrower class of cases that warrant special attention. 

It is the assertion that judges wield executive power, and vice versa, that is the affront to separation 

of powers. 

The complexity and supreme importance of this issue emphasize that it should not have 

been reached in the context of this petition, but my colleague's concurrence could not go 

unaddressed. His placement of the Court in the executive branch, exercising executive power—or 

"a form of administrative 'judicial power'"36—would undercut, even nullify, the congressional 

compromise that overcame two centuries of not-so-splendid isolation to provide those whose 

service and sacrifice established and have sustained our nation—veterans and their dependents and 

survivors—the basic protection of review of agency decisions in the independent judicial branch. 

And my colleague's assessment that such placement would have no practical effect fails to 

appreciate the apprehension that such internal review is not impartial. Keeping the judiciary 

judicial honors, promotes, protects, and advances our common and most critical attributes, such as 

the importance of independent judicial review. 

control.

36 Ante at 8.