UNITED STATES COURT OF APPEALS FOR VETER ANS CLAIM S

N O

. 20

- 5697

J AMES E. L AWRENCE

, P ETITIONER

,

V

.

R OBERT L. W ILKIE

, S ECRETARY OF V ETERANS A FFAIRS

, R ESPONDENT

.

Before MEREDITH

, TOTH , and LAURER

, Judges

.

O R D E R

MEREDITH, Judge , filed the opinion of the Court. TOTH, Judge , filed a dissenting opinion.

On August 13, 2020, the petitioner, James E. Lawrence, through counsel filed a petition for extraordinary relief in the form of a writ of mandamus seeking to compel VA to forward a copy of his claims file to his counsel. Petition (Pet.) at 1

, 5. The petitioner asserted the following : (1) a VA regional office (RO) issued a rating decision in August 2019 denying entitlement to disability compensation for psychiatric disorders; (2) his appointed counsel requested a copy of his claims
file in November 2019 utilizing VA Form 10

- 5345

, Request fo r and Authorization to Release Health Information; (3) the RO acknowledged his " Privacy Act request " in November 2019; (4) his counsel made additional requests for the claims file in January and March 2020 ; (5) in August 2020, he appealed the RO's decision to the Board of Veterans ' Appeals (Board); and (6) to date,
his counsel ha d not yet received a copy of his claims file. Pet. at 2

- 3 ; Exhibits 1

- 7

. VA Form
10

- 5345 reflects that " [t]he information requested on this form is solicited under Title 38 U.S.C. "
and that " [t]he form authorizes release of information " pursuant to the Health Insurance Portability and Accountability Act, the Administrative Procedure Act (APA), the Freedom of Information Act ( FOIA ), 38 U.S.C. §§ 5701 and 7332, and the Privacy Act. Pet . at Exhibit 4. The petitioner
maintain ed that VA has unreasonably delayed in forwarding his claims file to his counsel and that the factors considered when assessing claims of unreasonable delay weigh in his favor. Pet. at 3

- 5.

The Court, on September 1, 2020, ordered the petitioner to file a supplemental
memorand um of law addressing the Court's jurisdiction to provide the requested relief and ordered the Secretary to file a response to the petition that also addressed the Court's jurisdict ion

. T he petitioner responded that the Court's authority to order VA to provide a copy of his claims file derives from the All Writs Act (AWA). Petitioner's Supplemental Memoran dum of Law ( Petitioner's Memo ra n dum ) at 2. In that regard, h e aver r ed that the Court's potential jurisdiction
under the AWA " turns upon whether the relief sought in the mandamus petition could ultimately lead to the [C]ourt's review of a Board decision

, " a nd he indicated that granting mandamus relief
where " a mandatory procedure has been unreasonably delayed at the Agency level " would

" potentially result[] in a Board decision over which the [C]ourt would have appellate jurisdiction. "
Id. The petitioner further maintained that a writ of mandamus was warranted in these2

circumstances because VA is the sole custodian of his records , h e has an i ndisputable right to his
records pursuant to 38 C.F.R. § 1.577 , and he cannot properly pursue his disability claims at the Agency without his claims file

. Id. at 3

- 5

.

The Secretary counter ed that the petitioner has not shown that the Court has jurisdiction to provide the requested relief. Secretary 's Response to the Court's September 1, 2020, Order (Secretary's Response ) at 1

- 6. The Secretary first argued that the petitioner failed t o " explain how the petition will lead to a final Board decision over which the Court will have jurisdiction. " Id. at
2. In that regard, the Secretary noted that the petitioner has not argued that he sought his claims file beyond a Privacy Act and FOIA request, the matter before the Court pertains to a FOIA request for the claims file, and the petitioner's contention is cont rary to the Court's precedent rejecting jurisdiction over matters of the Secretary's compliance with FOIA requests

. Id. at 3

- 5 ( c iting Struck v. Principi , 15 Vet.App. 213, 215 (2001) (per curiam order)

, and Mangham v. Shinseki

, 23 Vet.App. 284 , 289 (2009))

. The Secretary further maintained that, although the petitioner argues that the claims file contains evidence related to his disability claims, he has not explained how a delay in providing the claims file impedes the appellate process. Id. at 5. Last, th e Secretary respond ed that, even assuming the Court has jurisdiction over the petition, the petitioner has not demonstrate d a clear and indisputable right to the writ. Id. at 6

- 8. Specifically, t he Secretary argue d that there has not been complete inaction by VA because the Agency has acknowledged the petitioner's request 1 and the petitioner has not shown that he lacks alternative means to obtain
relief ; he filed a Notice of Disagreement opting to attend a Board hea ring and therefore any allegation regarding the duty to assist may be addressed by the Board in the normal cour se of the appeal. Id.

On October 1, 2020

, the matter was referred to a panel of the Court to determine whether the Court has jurisdiction to pro vide the relief sought by the petitioner

, and on October 26, 2020, the Court granted the petitioner 's motion for leave to file a reply to the Secretary's Response

. Regarding the Court's jurisdiction, the petitioner maintained that the Secretary's interpretation of
the AWA " leaves claimants in a proverbial catch

- 22 situation, depriving them " of access to records

ne cessary to pursue their claims

. Petitioner's Reply at 4. He fur ther challenge d the Secretary's
reliance on Struck and Mangham and argu ed that " the [C]ourt ' s terse dicta [in Struck ] in response

to a pro se [appellant] ' s inartful pleading hardly constitutes a considered holding. " I d. at 4

- 5.

A. All Writs Act Authority

Pursuant to the AWA, the Court has the authority to issue extraordinary writs in aid of its prospective jurisdiction. 28 U.S.C. § 1651(a). " [J]urisdiction to issue a writ of mandamus pursuant

1 The Court notes that the Secretary relied on Stratford v. Peake

, 22 Vet.App. 313, 314 (2008) (per curiam order), in which the Court found that the petitioner had not shown that VA was r efusing to comply with his FOIA and Privacy Act request because the Board , 3 months later, notified him that his request was forwarded t o the RO for reply and/or processing. Because the Court seems to have assumed jurisdiction in Stratford and offered no explanation for that action, we do not consider ourselves bound by that assumption. See Harms v. Nicholson , 20 Vet.App. 238, 245 (2006) (en banc) (citing United States v. L.A. Tucker Truck Lines, Inc. , 344 U.S. 33, 38 (1952) ( concluding that an issue not " raised in brief s or argument nor discussed in the opinion of the Court " would not be taken as " binding precedent on th [e] point " ))

, aff'd , 489 F.3d 1377 (Fed. Cir. 2007); see also L.A. Tucker Truck Lines, Inc. , 344 U.S. at 38 ( noting that " th [e] Court is not bound by a p rior exercise of jurisdiction in a case where it was not questioned and it was passed sub silentio " )

.3

to the AWA relies upon not actual jurisdiction but po tential jurisdiction

. " In re Fee Agreement of

Cox ( Cox I

) , 10 Vet.App. 361, 370 (1997), vacated on other grounds sub nom

. , Cox v. West ( Cox II ) , 149 F.3d 1360 (Fed. Cir. 1998).

This Court's appellate jurisdiction derives exclusively from statutory grants of authority provided by Congress and may not be extended beyond that permitted by law. See Christianson

v. Colt Indus. Operating Corp. , 486 U.S. 800, 818 (1988). Hence, it is well established that the

AWA does not extend this Court's juri sdiction. See Cox II , 149 F.3d at 1363; see also Heath

v. West

, 11 Vet.App. 400, 402

- 03 (1998). B ecause the AWA " is not an independent basis of jurisdiction, . . . the petitioner must initially show that the action sought to be corrected by
mandamus is wit hin [the] court's statutorily defined subject matter jurisdiction. " Baker Perkins, Inc. v. Werner & Pfleiderer Corp ., 710 F.2d 1561, 1565 (Fed. Cir. 1983); see Pennsylvania Bureau of Corr. v. U.S. Marshals Serv. , 474 U.S. 34, 43 (1985) (noting that the AWA " is a residual source of authority " ).

The Court's appellate jurisdiction is governed by section 7252 of title 38, U.S.C., which provides that the Court " shall have exclusive jurisdiction to review decisions of the Board. "
38 U.S.C. § 7252(a). The Board, in turn, has jurisdiction to consider " [ a ] ll questions in a ma tt er which under section 511(a) of

. . . title [38] is subject to decision by the Secretary. " 38 U.S.C. § 7104(a). And, pursuant to s ection 511(a)

, " [ t ] he Secretary shall decide all q uestions 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). Therefore, the Court's jurisdiction to issue the order sought by the petitioner pursuant to the AWA depends on whether the grant of the petition c ould lead to a Board decision over which the Court would have jurisdiction. See Cox I , 10 Vet.App. at 371.

A s an initial matter, a nswering that question requires the Court to consider

, and the petitioner to show

, that the case " arises ' under a law that affects the provision of benefits. '" Bates
v. Nicholson , 398 F.3d 1355, 1359 (Fed. Cir. 2005) (quoting 38 U.S.C. § 511(a)) ; see McNutt

v. Gen. Motors Acceptance Corp. of Ind. , 298 U.S. 178, 188

- 89 (1936) (The ultimate burden of establishing jurisdiction rests with the party seeking the exercise of jurisdiction in his favor .);
Bethea v. Derwinski , 2 Vet.App. 252, 255 (1992)

. The petitioner also must show that VA's action s in question could be the subject of a Board decision, Yi v. Principi , 15 Vet.App. 265, 267 (2001) (per curiam order) (holding that the Court " lacks appellate jurisdiction over any issue that cannot be the subject of a Board decision " )

, and that this Court would have subject matter jurisdiction to
consider a Board decision on that matter

, s ee , e.g. , Wanner v. Principi

, 370 F.3d 1124, 1129

- 3 1 (Fed. Cir. 2004) (discussing a matter that ha d been removed by statute from th e Court' s jurisdiction).

B. Privacy Act and FOIA

A s indicated above, t he petitioner submitted VA Form 10

- 5345 and asks the Court to compel the Secretary to fulfill his request by provid ing not only his claims file

, but also medical records including health summaries, inpatient discharge summaries, progress notes, operative and clinical procedures , lab results, radiology reports, and lists of active medications

. See Pet. at
Exhibit 4. Although that form also references other a uthorities, the RO construed the petitioner's4

Form 10

- 5 3 45 request as a Privacy Act request

— a characterization that his counsel acknowledged
in follow

- up correspondence with the RO. See Pet. at 2, Exhibits 4

- 7. Before the Court

, h e does not allege that he sought to obtain his claims file and related documents other than pursuant to the FOIA or the Privacy Act, nor does he contest the Secretary's assertion to that effect. See Secretary's Response at 5; Petitioner's Reply at 2

- 5. Indeed, the petitioner avers that his right to obtain the requested documents derives from 38 C.F.R. § 1.577, part of VA's series of regulations implementing the Privacy Act. Petitioner's Memorandum at 3

- 5; see 38 C.F.R. § § 1.550(b) , 1.5 62

n ote (2020 ) ( each noting that §§ 1.575

- 1.584 pertain to Privacy Act records). Consequently, even though the petitioner seeks his records in pursuit of a VA disability benefits claim, 2 we will address only whether we may issue a writ compelling VA to fulfill his request under the Privacy Act and
the FOIA.

The Privacy Act " regulate[s] the collection, maintenance, use

, and dissemination of information by [federal] agencies " and provides a private cause of action agai nst federal agencies for violating its provisions. Doe v. Chao , 540 U.S. 614, 618 (2004) ( quotation marks omitted); see 5 U.S.C. § 552a(g)(1). The Privacy Act allows an individual or his authorized representative to

2 Although 38 U.S.C. § 5701 provides that the Secretary must make certain disclosures to a claimant or duly authorized agent or representative of a claima nt and the Court has held that it is a law affecting the provision of benefits, Rosinski v. Shulkin ( Rosinski I ), 29 Vet.App. 183, 189 (2018) (per curiam order), the Court will not today address the import of section 5701 because the represented petitioner does not acknowledge that provision or make
any arguments pertaining to it, despite multiple opportunities to meet his burden to establish the Court's jurisdiction
over the matter

. See United States v. Sineneng

- Smith , 140 S. Ct. 1575, 1579 (2020) ( " [A]s a general rule, our system

' is designed around the premise that [parties represented by competent counsel] know what is best for them, and are responsible for advancing the facts and argument entitling them to relief. '" ) (second alteration in original ) (quoting
Castro v. United States , 540 U.S. 375, 386 (2003) (Scalia, J., concurring in part and concurring in judgment ) ) ; see also Robinson v. Peake , 21 Vet.App. 545, 554 (2008) (presuming that " an experienced attorney in veteran's law, says what he means and means what he says " ), aff'd sub nom. Robinson v. Shinseki , 557 F.3d 1355 (Fed. Cir. 2009)

. The majority will not raise and answer a question not briefed by the parties, as the dissent would do. See Sineneng

- Smith

, 140 S. Ct. at 1579 ( " Courts are essentially passive instruments of government

. They do not, or should not, sally forth each day looking for wrongs to right. [ They ] wait for cases to come to [ them ] , and when [ cases arise, courts ] normally decide only questions presented by the parties

. " ) (internal quotation marks and citation omitted).

To provide some context , however, with one exception not relevant here, Congress expressly provided that

" any disclosure made pursuant to . . . section [5701] shall be made in acc ordance with the provisions of section 552a
of title 5[, the Privacy Act]. " 38 U.S.C. § 5701(j). And as we explain in more detail below, Congress in turn gave district courts of the United States jurisdiction over enforcing section 552 a

. See 5 U.S.C. § 552 a(g)(1). What ' s more, VA regulations provide that " [r]equests for records relating to a claim administered by VA pursuant to 38 U.S.C. [§] 5701 will be processed under the FOIA and 38 U.S.C. [§] 5701. " 38 C.F.R. § 1.550(c); see id. (providing that,

" [i]n a ddition to the following FOIA regulations, [§§ 1.551 through 1.562,] see §§ 1.500 through 1.527 for regulations implementing 38 U.S.C. § 5701 " ). In turn, regulations pertaining to the release of claimants ' records, like the regulations implementing the Privacy Act and the FOIA, provide that " [t]he final agency decision in such appeals will be made by the General Counsel or the Deputy General Counsel. " 38 C.F.R. § 1.527(c) (2020). Moreover, a lthough
this Cou rt in Rosinski I concluded that it had jurisdiction to consider whether the petitioner was entitled to a writ compelling VA to provide him with draft rating decisions under section 5701(d), the Court there did not discuss the Privacy Act or whether jurisdi ction over such matters had been conferred on other tribunals. Rosinski I , 29 Vet.App. at 189; s ee Bates , 398 F.3d at 1365

- 66 (explaining that 38 U.S.C. § 511(a) " [d]oes not apply to every challenge to an action by . . . VA " and, therefore, the court does not " suggest[] that the Board has jurisdiction to review controversies that are committed by statute to other tribunals " ). And, the Court in Rosinski v. Wilkie , which addressed the same substantive challenge as in Rosinski I

, subsequently acknowledged that jurisdiction might not lie in this Court if the case involved a request for " a specific record " rather than a challenge to VA's underlying policy. 31 Vet.App. 1, 8 n.4 (2019) (per curiam order).5

access records pertaining to the individ ual. See 5 U.S.C. § 552a(d)(1). " The FOIA represents a carefully balanced scheme of public rights and agency obligations designed to foster greater access to agency records than existed prior to its enactment. " Kissinger v. Reps. Comm. f or Freedom of
the P ress , 445 U.S. 136, 150 (1980). The FOIA thus obligates agencies of the United States government to make their records " promptly available to any person, " except those records specifically exempt from disclosure

, 5 U.S.C. § 552(a)(3) (A) , and the " statutory scheme authorizes federal courts to ensure private access to requested materials

. . . . upon a showing that an agency has (1) ' improperly ' ; (2) ' withheld ' ; (3) ' agency records

, '" Kissinger , 445 U.S. at 150 (quoting
5 U.S.C. § 552(a)(4)(B) )

. In b oth instances, Congress expressly vested jurisdiction over civil actions arising from t he Privacy Act and the FOIA in th e United States d istrict c ourts. See 5 U.S.C. § 552(a)(4)(B) (providing that " the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any ag ency records improperly withheld from the complainant ") (emphasis added); 5 U.S.C. § 552a(g)(1) (providing that an " individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction
in the matte rs under the provisions of this subsection ") (emphasis added).

VA processes " [r]equests for records about an individual [] protected under the Privacy Act

. . . including one's own records . . . under the FOIA and the Privacy Act. " 38 C.F.R. § 1.550(b).
Further , VA's regulations implementing the Privacy Act instruct that , if the Agency fails to respond to a request for access to records, " the individual must pursue the request with the Privacy Officer
of the administration office . . . or staff office . . . that has custody over the records, " and that denials of records requests may be appealed to the Office of General Counsel, who will render the final agency decision in such appeals. 38 C.F.R. § 1.580 (b), (c) (2020) ; see 38 C.F.R. § § 1.550(b),
1.577. T he regulations pertaining to FOIA requests similarly require that an individual appeal FOIA request denials to the Office of General Counsel and further provide that, " [ u ] nless the requester has been deemed to have exhausted all administrative remedies, he or she must first appeal the adverse determination in accordance with this section before seeking review by a court

. "
38 C.F.R. § 1.559 (b), (f) (2020)

.

C. Jurisdiction

It is undisputed that t he petitioner bears the burden of establishing that the Court has jurisdiction to act. In that regard, the petitioner solely contends that the Court has jurisdiction to provide the requested relief pursuant to the AWA. Petitioner's Memora ndum at 2 . He fails, however, to acknowledg e that the AWA is not an independent source of, and may not extend, the
Court's statutorily defined jurisdiction

. Baker Perkins, Inc. , 710 F.2d at 1565; see Pennsylvania Bureau of Corr. , 474 U.S. at 43. As explain ed above, t o demonstrate that the Agency action sought

to be corrected

— compliance with the Privacy Act and the FOIA

— falls within the Court's jurisdiction would require a showing that the petitioner's request for records was made pursuant to a law affecting the provision of VA benefits, that VA's decision on the matter could be the subject of a Board decision, and that the Court would have subject matter jurisdiction to review the Board's
decision.6

Here, t he Court concludes that the petitio ner has not carried his burden of demonstrating that the Court has jurisdiction to issue the requested writ . To begin, he does not contend that

, or explain how

, the Privacy Act or FOIA constitute s " a law that affect s the provision of benefits by
the Secret ary, " such that it would fall within the Board's jurisdiction. 38 U.S.C. § 511(a); s ee 38 U.S.C. § 7104(a); Bates

, 398 F.3d at 1359. Further, although the dissent would order that the
Board issue a decision regarding the requested documents

— documents that go beyond the petitioner's claims file, see Pet. at Exhibit 4

— a s noted above, VA regulations unambiguously delegate the authority to make final determinations regarding Privacy Act and FOIA requests to the VA Office of General Counsel, not the Board. 38 C.F.R. §§ 1.527, 1.559, 1. 580. 3 The petitioner neither acknowledges these regulations, no r challenges the validity of the Secretary's delegation of authority therein

. Accordingly, he has not demonstrated how the grant of a writ, in these
circumstances , would lead to a final Board decision, a necessary predicate for this Court's jurisdiction. Yi

, 15 Vet.App. at 267

.

Moreover, as previously discussed, Congress explicitly provided that U.S. district courts shall have jurisdiction over civil actions arising from an agency's refusal to comply with Privacy Act and FOIA requests. 5 U.S.C. §§ 552(a)(4)(B), 552a(g)(1); s ee Cofield v. United States

, 64 F. Supp. 3d 206, 214 ( D.D.C. 2014) ("The federal courts

. . . h ave exclusive jurisdiction over any claim

. . . under the FOIA and the Privacy Act.") ; Kuffel v. U

. S

. Bureau of Prisons , 882 F. Supp. 1116, 1120 ( D.D.C. 1995) ( " Section 552(a)(4)(B) of FOIA grants U.S. district courts exclusive jurisdiction over FOIA cases

. " ); Treece v. United States , 96 Fed. Cl. 226, 232 (2010) (dismissing the "plaintiff's claims under the Privacy Act . . . and the [FOIA] . . . because the federal district courts have exclusive jurisdiction over such matters")

. Indeed, district courts have regularly
addressed s uch matters, including cases seeking enforcement of VA's obligation to provide
records

. See, e.g.

, Conyers v. U.S. Dep't of Veterans Affairs

, No. 16

- CV

- 00013, 2017 WL 722107

, at *8

- 11 (E.D.N.Y. Jan. 10, 2017) ; Demoruelle v. Dep't of Veterans Affairs

, No. 16

- 00562, 2017
WL 2836989

, at *2

- 4 (D. Haw. June 30, 2017) ; Wadhwa v. Dep't of Veterans Affairs , 342 F. App'x.

3 While our dissenting colleague would " order the Board

— in t he event the Secretary fails to provide such
records

— to provide a decision outlining the basis for such ruling

, " post at 7, any such order seems premature given that there is no indication in this case that a VA agency of original jurisdiction has made a decision on the petitioner's request or that any denial of his request has been placed into appellate status at VA. Fu rther, our dissenting colleague simply assumes that acting on any such appeal would be the province of the Board. It is unclear how that conclusion
meshes not only with §§ 1.527, 1.559, and 1. 580 but also with § 20.1200, which provides that, where "an indi vidual [is] seeking records pertaining to him or her," the Board will not act "on that individual's appeal" until the request is

" reviewed and processed. " 38 C.F.R. § 20.1200. Would the Board be required to fulfill the records request prior to acting on an appeal as to those records? Moreover, nothing in the materials now before the Court suggests that either Congress or VA created a separate system for benefit s claimants to obtain their records

. Rather, under 5 U.S.C. § 552a (d)(1)

, " a ny individual [may] ga in access to his [own] record or to any information pertaining to him which is
contained in the [agency] system

. " 5 U.S.C. § 552a (d)(1). And if the agency " r efuses to comply with an individual
request . . . the individual may bring a civil action against t he agency, and the district courts of the United States

. . . have jurisdiction. " 5 U.S.C. § 552a (g)(1)(B) ; see 38 U.S.C. § 5701(j) (with the exception of certain contracting
information

, " any [records] disclosure made pursuant to this section shall be made in accordance with the provisions of section 552a of title 5") (emphasis added). In other words, the statutory scheme suggests that the petitioner has
recourse to obtain his records and t he means of appealing any denial of a request does not pass through the Board. See
Melvin v. U.S. Dep't of Veterans Affairs , 70 F. Supp. 3d 350, 359 (D.D.C. 2014) (explaining the difference between Privacy Act claims against VA that are collateral to benef it determinations and finding that 38 U.S.C. § 511(a) did not deprive the district court of jurisdiction to hear the claim for " a Privacy Act violation for the VA's failure to provide

to [ the veteran] the audio tape of [the veteran's] Board of Veterans ' Ap peals hearing " ), aff'd , No. 14

- 5263, 2015 WL 3372292 (D.C. Cir. May 6, 2015)

.7

860, 862

- 63 (3d Cir. 2009) (per curiam) ; Kinman v. United States

, No. 16

- cv

- 00329, 2016 WL
7165986

, at *5 (S.D. Ohio De c . 7, 2016)

. The petitioner has not argued or demonstrated that this
Court would nevertheless have subject matter jurisdiction over a VA decision concerning his Privacy Act and FOIA request. See McNutt , 298 U.S. at 188

- 89; Bethea , 2 Vet.App. at 255

.

The Court therefore concludes that, because the petitioner has not shown that " the action sought to be corrected by mandamus is within this [ C ] ourt's statutorily defined subject matter jurisdiction, " Baker Perkins, Inc. , 710 F.2d at 1565, he has not demonstrated that the petition is

" in aid of [our] . . . jurisdiction[] " or " agreeable to the usages and principles of law. " 28 U.S.C. § 1651(a). Simply put, the Court cannot compel VA to act on a matter over which the petitioner
has not demonstrated we would have subject matter jurisdiction to review.

However, a s a final matter, the Court express es c oncern that there has been a 1

- year del ay so far in processing the petitioner's Privacy Act and FOIA request

. B ecause the Board would likely

not adjudicate his appeal until that request is processed

, see 38 C.F.R. § 20.1200, further delay in processing his request could not only delay a decision on his claims but also potentially frustrate
the Court's review of a final Board decision

. These are serious matter s that t he Agency should be
mindful o f regardless of what tribunal may ultimately have jurisdiction to address them.

Upon c onsideration of the foregoing , it is

ORDERED that the petition for extraordinary relief in the form of a writ of mandamus is
DISMISSED

.

DATED: December 22, 2020

TOTH, Judge

, dissenting : I agree with the panel that neither the Board nor this Court has jurisdiction to hea r civil actions concerning VA's compliance with the Freedom of Information Act (FOIA) or Privacy Act. 5 U.S.C. § 552(a). However, by requesting (through counsel) his own
records to pursue his pending claim for veterans benefits, Mr. Lawrence is not raising a FOIA or Privacy Act issue in any meaningful sense; he doesn't seek monetary damages, for example, or the publication of documents related to VA's internal operations. Instead, he claims that VA's own regulations req uire it to provide him evidence relevant to his ongoing benefits case. I respectfully
dissent and would order the Board

— in the event the Secretary fails to provide such records

— to provide a decision outlining the basis for such ruling, per 38 U.S.C. §§ 511 and 7104.

A defining feature of the veterans benefits system is that Congress expressly stripped federal courts of any jurisdiction to review decisions of the Secretary under laws affecting such benefits. 38 U.S.C. § 511(a). This Court has held that 38 U.S.C. § 5701, which addresses VA disclosure obligations for records related to pending benefits claims, affects the provision of
veterans benefits. See Rosinski v. Wilkie , 31 Vet.App. 1, 6 (2019). Therefore , a federal district court has no jurisdiction t o consider t he Secretary's compliance with section 5701's disclosure provisions, unless the veteran seeks monetary damages or relief unrelated to the pursuit of benefits. Only the Secretary, via the Board, can adjudicate matters related to a benefit s claim , 38 U.S.C. §§ 511, 7104. And only this Court has jurisdiction to review that decision. Id. §§ 511(b)(4), 7252; Veterans for Common Sense v. Shinseki , 678 F.3d 1013, 1031 (9th Cir. 2012) (en banc) ("Congress8

subsequently established the Veterans Court, eff ectively stripping district courts of any such jurisdiction ." (cleaned up) )

.

The nature and extent of a claimant's right to obtain records in the context of an active benefits claim is simply a question about the scope of discovery available within the ve terans benefits system. The answer to that question is found in the statutes and rules of t itle 38 and not in

t itle 5 provisions that govern all f ederal agencies. Although both section 5701 and FOIA, for example, involve requests for information from f eder al agencies

— that's a bout all they have in
common. Section 5701 relates to specific claims for benefits, while FOIA and the Privacy Act address government transparency and individual privacy rights

, respectively . In short, a veteran seeking monetary damages under the Privacy Act for wrongful disclosure of information or seeking public disclosure of VA internal matters must seek relief in a federal district court; however, only the Board has jurisdiction to adjudicate matters related to specific claims for
be nefits. See Perry v. United States , 524 F. App'x 680 (Fed. Cir. 2013) (holding that the Court of Appeals for Ve teran s Claims and not the Court of Federal Claims had jurisdiction to determine
whether VA violated the Privacy Act in relation to a benefits cla im).

Our ruling here effectively casts Mr. Lawrence into a jurisdictional no

- man's land. Because a federal district court lacks jurisdiction to review any rulings related to a benefits decision of the Secretary, it must treat Mr. Lawrence's discovery requ est as the equivalent of a FOIA request from a citizen seeking disclosure of agency hiring practices or budg et outlays or the like. This re branding of routine discovery matters as FOIA or Privacy Act matters effectively removes statutes such as
section 570 1 or regulations such as 38 C.F.R. § 1.577 from the books, by placing them beyond review in any benefits adjudication. Here, our ruling redirects a discovery dispute from the Board to federal courts that lack jurisdiction to hear it.

Three final things. In dissenting, I take no position as to whether any other statute or regulation requires VA to provide Mr. Lawrence with the records he seeks. That's for the Secretary to decide first. I merely note that M r. Lawrence is entitled under sections 511 and 7104 to a timely decision from the Secretary on this question. If the Secretary construes the request as covered by FOIA or the Privacy Act, as he contends in his briefing , he can, via the Board, rule accordingly. Mr. Lawrence can appeal such a decision to this Court.

Second, how VA characterizes the form that it requires veterans to fill out requesting materials has little bearing on whether a request is construed properly as a FOIA or Privacy Act request or as a discovery request in a benefit s claim. For jurisdictional purposes, what matters
under sections 511 and 5701 is whether a claimant has filed a particular claim for benefits and cited the law as supporting such claim for benefits.

Finally, that section 5701(j) cites expressly to 5 U.S.C. § 552(a) has no effect on the Board's jurisdiction to decide all matters relevant to benefits claims; it merely signifies that the two statutes are capable of coexisting and are meant to be read as supporting each other . In short, it means that Congress did not wish courts to read section 5701 as wholly displacing VA's obligations under the Privacy Act.