UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 15-1594

ROBERT V. CHISHOLM, PETITIONER,

V.

ROBERT A. MCDONALD,

SECRETARY OF VETERANS AFFAIRS, RESPONDENT.

Before HAGEL, Chief Judge, and KASOLD and DAVIS, Judges.

O R D E R

On April 27, 2015, attorney Robert V. Chisholm filed a petition for extraordinary relief in

the nature of a writ of mandamus. He asks the Court to compel the Secretary "to grant access for

paralegals under [his] supervision to the Veterans Benefits Administration's automated claims

records system pursuant to 38 C.F.R. § 14.629 (2014) ('Requirements for accreditation of service

organization representatives; agents; and attorneys')." Petition at 2; see 38 C.F.R. § 14.629, Note 1

(2016) ("A legal intern, law student, paralegal, or veterans service organization support-staff person,

working under the supervision of an individual designated under § 14.631(a) as the claimant's

representative, attorney, or agent, may qualify for read-only access to pertinent Veterans Benefits

Administration automated claims records as described in §§ 1.600 through 1.603 in part 1 of this

chapter."). The Secretary has not provided such access, citing privacy concerns and technological

infeasibility. In the alternative, Mr. Chisholm asks the Court to compel the Secretary "to issue a

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VA regulations permit access to accredited attorneys or organizations, but state that a person or person

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representing an organization "will use only his or her assigned password to obtain access," cannot "reveal his or her

password to anyone else, or allow anyone else to use his or her password," and "will access only the [Veterans Benefits

Administration's] automated claims record of VA claimants who are represented by the person obtaining access."

38 C.F.R. § 1.602(a)(2)-(4) (2016).

VA's Deputy General Counsel explained that "'use of an attorney's code would allow an employee to access

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the records of all claimants whom the attorney represents, which would violate the Privacy Act if all clients did not assent

to disclosure of their records to the employee.'" Secretary's Sept. 25, 2015, Response at 3 (quoting Sept. 18, 2015, letter

from VA Deputy General Counsel to petitioner). The VA Deputy General Counsel explained further that under

38 C.F.R. § 14.629(c)(3), for a paralegal to assist in the preparation, presentation, or prosecution of a claim, "the

claimant's written consent" must be provided to VA, and "[s]uch consent must specifically state that participation in all

aspects of that claim by a . . . paralegal furnishing written authorization from the attorney of record is authorized." Id.

Incongruously, the Secretary stated at oral argument that an accredited attorney could conceivably obtain records from

the Veterans Benefits Administration's automated claims records systems, and then provide those records to his or her

support staff. See Oral Argument at 52:40-53:40, Chisholm v. McDonald, U.S. Vet. App. No. 15-1594 (oral argument

held Mar. 2, 2016), http://www.uscourts.cavc.gov/oral_arguments_audio.php.
decision on [Mr. Chisholm's] request for access by his paralegals, such that he may pursue an

appeal," if his request is denied; but he admits that he does not know who within VA would issue

such a decision. Id.

Before addressing the relief requested in the petition, the Court must satisfy itself that it

possesses jurisdiction to act in this case. As an initial matter, the Court notes that, "unless Congress

explicitly prohibits it, there is a strong presumption in favor of judicial review." Freeman v.

Shinseki, 24 Vet.App. 404, 415 (2011). The rationale is clear, particularly in the context of veterans

benefits cases: 

"No matter how dedicated and how competent administrators may be, the possibility

of error is always present, especially in nonadversary proceedings. For that reason

the Court normally assumes that Congress intended agency action to be subject to

judicial review unless the contrary intent is expressed in clear and unambiguous

language." 

Id. at 414-15 (quoting Park 'N Fly, v. Dollar Park and Fly, Inc., 469 U.S. 189, 212-13 (1985)

(Stephens, J., dissenting)). 

Here, Congress has not limited the Court's jurisdiction. Rather, the Court has jurisdiction

over decisions of the Board of Veterans' Appeals (Board), 38 U.S.C. § 7252, and the Board has

jurisdiction to review "decisions by the Secretary under a law that affects the provision of benefits,"

see 38 U.S.C. §§ 511, 7104(a). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit)

has determined that section 5904 is a law that affects the provision of benefits. See Bates v.

Nicholson, 398 F.3d 1355, 1362 (Fed. Cir. 2005). The action of authorizing or denying access to

electronic records for counsel seeking benefits on behalf of clients, and for staff assisting such

counsel, is taken pursuant to regulation 38 C.F.R. § 14.629 that was promulgated pursuant to 38

U.S.C. §§ 501(a) and 5904. Thus, the denial of access by the Secretary would be subject to review

by the Board, and, consequently, the refusal to issue a Statement of the Case (SOC) would be

grounds for issuing a writ in aid of our jurisdiction. See 28 U.S.C. § 1651(a); 38 U.S.C. §§ 7252,

7261(a); Cox v. West, 149 F.3d 1360, 1363-64 (Fed. Cir. 1998); see also 38 U.S.C. § 7105(d)(1)

(requiring the Secretary to prepare an SOC in response to a Notice of Disagreement (NOD) filed by

the claimant that is unresolved); Woznick v. Nicholson, 19 Vet.App. 198, 201-02 (2005) (directing

the Secretary to issue an SOC in response to the claimant's NOD). Consequently, the Court is

satisfied that it has jurisdiction in the matter and may address the merits of the petition.

The same is not true for a veterans service organization. When a claimant signs a VA Form 21-22, he or she

authorizes the Secretary to release the claimant's records to the appointed veterans service organization. Thus, there is

no requirement to name individual support staff within the veterans service organization because the claimant's consent

releases information to the organization as a whole. At oral argument, the Secretary stated that, under the current

regulatory framework, every employee of a veteran service organization, to include a hypothetical bar tender at a

Veterans of Foreign Wars' post, could have access to the Veterans Benefits Administration's automated claims records

system. See id. at 1:11:46-1:15:40.

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The Court has the authority to issue extraordinary writs in aid of its prospective jurisdiction

pursuant to the All Writs Act, 28 U.S.C. § 1651(a). However, "[t]he remedy of mandamus is a

drastic one, to be invoked only in extraordinary situations." Kerr v. U.S. Dist. Court for N. Dist. of

Cal., 426 U.S. 394, 402 (1976); see also Youngman v. Peake, 22 Vet.App. 152, 154 (2008);

Constanza v. West, 12 Vet.App. 133, 134 (1999) (holding that a petitioner seeking a writ of

mandamus based on delay must demonstrate an extraordinary delay equivalent to a refusal to act).

Three conditions must be satisfied before the Court issues a writ of mandamus: (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 the issuance of the

writ is warranted. See Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380-81 (2004) (citing

Kerr, 426 U.S. at 403); see also Youngman, 22 Vet.App. at 154. 

Although the VA Deputy General Counsel for legal policy has issued a statement outlining

the basis for withholding access, the parties have informed the Court that the Secretary has yet to

issue an official decision on the matter, and has apparently refused to do so. The denial of a

"decision[] by the Secretary under a law that affects the provision of benefits," see 38 U.S.C. § 511,

frustrates judicial review. See Cheney, supra. Accordingly, because decisions regarding access to

claims files are rendered pursuant to a law affecting the provision veterans' benefits, Mr. Chisholm

is entitled to a writ and the Secretary will be directed to issue the requested decision, which may be

appealed to the Board and ultimately the Court. See 38 U.S.C. §§ 511, 7104(a), 7252, 7261(a).

Because Mr. Chisholm is entitled to a writ as noted above, he fails at this time to demonstrate

that he lacks alternative means to attain the relief desired and, therefore, Mr. Chisholm is not entitled

to a writ directing the Secretary to grant his paralegal staff remote access to electronic records. See

Cheney, supra.

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On consideration of the foregoing, it is

ORDERED that the April 27, 2015, petition is GRANTED IN PART, and the Secretary is

directed to issue a decision on Mr. Chisholm's request to permit his support paralegal staff remote

access to claims records.

DATED: September 30, 2016 PER CURIAM. 

The Court understands that the Secretary's decision may be affected by potential changes to 38 C.F.R.

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§ 14.629, as reflected in a May 9, 2016, notification from the VA Office of the General Counsel to the Court that VA

had accepted Mr. Chisholm's October 28, 2015, letter "'as a petition for rulemaking under 5 U.S.C. § 553(e), to revise

38 C.F.R. § 14.629 in a manner that would allow the Secretary to provide electronic access to law firm support staff and

would remove the requirements for specific named consent to allow such disclosures.'" Secretary's May 9, 2016, Notice

(quoting May 9, 2016, letter to the petitioner from VA Deputy General Counsel for Legal Policy). Those changes,

however, will not relieve the Secretary of his obligation to provide a decision on Mr. Chisholm's request, whether under

the current rules or subsequently amended rules.

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