                NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
                citable as precedent. It is a public record.

United States Court of Appeals for the Federal Circuit

                                           05-7182


                                  JOE A. BROWDER, JR.,

                                                   Claimant-Appellant,

                                              v.

                  R. JAMES NICHOLSON, Secretary of Veterans Affairs,

                                                   Respondent-Appellee.


                            ____________________________

                                DECIDED: May 2, 2006
                            ____________________________


Before LOURIE, RADER, and PROST, Circuit Judges.

PER CURIAM.

                                         DECISION

       Joe A. Browder, Jr. (“Browder”) appeals from the final decision of the United

States Court of Appeals for Veterans Claims (the “Veterans Court”) dismissing for lack

of jurisdiction in part and as moot in part his petition for extraordinary relief in the nature

of a writ of mandamus. Browder v. Nicholson, No. 05-1253 (Vet. App. July 19, 2005)

(“Decision”).    Because the Veterans Court lacked jurisdiction to issue a writ of

mandamus ordering the Secretary to change Browder’s fiduciary, we affirm.
                                    BACKGROUND

      Browder, a 44 year old veteran who received an honorable discharge, was

evaluated by the Veterans Administration1 (“VA”) on February 11, 2002.           The VA

examiner reported his impression that Browder had major depression with psychosis,

noting that Browder last worked in 1993 and had been arrested on 60 different

occasions. The examiner also stated that it was “quite unlikely that [Browder] would be

able to manage his benefit payments in his own best interests considering his history

and considering psychological tests.” On April 16, 2002, the VA Regional Office (“RO”)

proposed to make a determination that Browder was mentally incompetent for VA

purposes. On April 26, 2002, the VA informed Browder of this proposed action. Three

days later, Browder accepted the proposed finding of incompetency and requested that

his mother be appointed as his fiduciary. On May 10, 2002, the RO determined that

Browder was incompetent for VA purposes. On August 15, 2002, the VA appointed

Kenneth V. Anderson, Jr. (“Anderson”), Public Guardian for McCracken County,

Kentucky, to act as Browder’s fiduciary.

      On May 10, 2005, Browder filed a pleading in the Veterans Court asserting that

the RO had denied his attempt to “change [his] fiduciary from Kenneth Anderson . . . to

[his] oldest son, Jason Alexander Browder.” Decision, slip op. at 1. He also contended

that when he attempted to appeal the RO decision to the Board of Veterans’ Appeals

(the “Board”), it “declined jurisdiction based on [his] case before the [Veterans] Court.”

Id. Browder requested that the Veterans Court order the Secretary to notify him of the

status of his claims filed at the RO in February and/or March 2005. Id.

1
      The Veterans Administration was renamed the Department of Veterans Affairs in
1988. Department of Veterans Affairs Act, Pub.L. No. 100-527, 102 Stat. 2635 (1988).


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      The Veterans Court construed Browder’s pleading as a petition for extraordinary

relief in the nature of a writ of mandamus. Id. In response to Browder’s petition, the

Secretary asserted that the Secretary has the sole responsibility of choosing the most

appropriate fiduciary. Id. The Secretary also reported on the status of the claims that

Browder had filed in February and/or March 2005. Id.

      The Veterans Court dismissed Browder’s petition for lack of jurisdiction in part

and as moot in part. Id., slip op. at 2. First, the court held that Browder had failed to

demonstrate that the court had jurisdiction to issue a writ of mandamus ordering the

Secretary to allow Browder to change his fiduciary duty. Id. Second, the court held that

Browder’s request for notification regarding his February and/or March 2005 claims filed

at the RO was moot because the Secretary reported on the status of those claims in the

Secretary’s response to the petition. Id.

      Browder timely appealed the Veterans’ Court dismissal on jurisdictional grounds

to this court, and we have jurisdiction pursuant to 38 U.S.C. § 7292.

                                      DISCUSSION

      We have limited jurisdiction to review a decision of the Veterans Court. We

cannot, absent a constitutional issue, review a challenge to a factual determination or a

challenge to a law or regulation as applied to the facts of a particular case. 38 U.S.C. §

7292(d)(2) (2000). We may, however, review the validity of “a rule of law or of any

statute or regulation . . . or any interpretation thereof . . . that was relied on by the

[Veterans] Court in making the decision.” 38 U.S.C. § 7292(a) (2000). Such legal

determinations of the Veterans Court are reviewed without deference.          Prenzler v.

Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991).        Whether the Veterans Court had




05-7182                                 -3-
jurisdiction to issue a writ of mandamus to compel the Secretary to change Browder’s

fiduciary is a question of law.

       On appeal, Browder argues that the Veterans Court erred in failing to consider

information in his reply brief to that court, which was returned for being nonconforming.

The reply brief alleged that Anderson did not inform him of letters that Anderson had

received concerning Browder’s VA benefits; Browder claimed that that was for the

purpose of embezzling Browder’s money. Browder also contends that his agreement to

the incompetency rating was contingent upon the appointment of a relative as a

fiduciary, and that the RO abused its discretion in appointing Anderson as Browder’s

fiduciary.   Browder further asserts that even if the Secretary had sole discretion to

appoint Browder’s fiduciary, that discretion was abused.

       The government responds that the Veterans Court correctly held that it lacked

jurisdiction to issue a writ of mandamus in the present circumstances. According to the

government, the Veterans Court does not have authority to review decisions made by

the Secretary that are entirely discretionary, such as the Secretary’s appointment of a

fiduciary. The government also asserts that the information in Browder’s reply brief did

not provide a basis for reversing the decision of the Veterans Court because the

Secretary had complete discretionary authority in the appointment of Browder’s

fiduciary.

       We agree with the government that the Veterans Court lacked jurisdiction over

Browder’s petition for extraordinary relief in the nature of a writ of mandamus. Under

the All Writs Act, 28 U.S.C. § 1651(a), “all courts established by act of Congress may

issue all writs necessary or appropriate in aid of their respective jurisdiction.”   The




05-7182                                -4-
Veterans Court’s jurisdiction to issue a writ of mandamus pursuant to the AWA relies

not upon actual jurisdiction, but upon potential jurisdiction. Yi v. Principi, 15 Vet. App.

265, 267 (2001). “[The Veterans] Court's jurisdiction to issue the order sought by the

petitioner depends upon whether the Court would have jurisdiction to review the final

Board decision that would issue pursuant to that order.” Id. (citing In re Fee Agreement

of Cox, 10 Vet. App. 361, 371 (1997)). Here, the Veterans Court lacked appellate

jurisdiction over the Secretary’s appointment of Browder’s fiduciary because the

granting of the petition could not lead to a Board decision over which the Veterans Court

would have jurisdiction.

       The Veterans Court generally does not have authority to review decisions made

by the Secretary that are entirely discretionary and not subject to review by the Board.

See Willis v. Brown, 6 Vet. App. 433, 435-36 (1994) (dismissing for lack of jurisdiction a

challenge to the Secretary’s appointment of a veteran’s fiduciary). As the Veterans

Court stated in Darrow v. Derwinski, 2 Vet. App. 303 (1992), “[e]ven where Congress

has not affirmatively precluded review, review is not to be had if the statute is drawn so

that a court would have no meaningful standard against which to judge the agency’s

exercise of discretion.” Id. at 306.

       Here, there is no statutory grant of jurisdiction to the Board to review the

appointment of a fiduciary by the Secretary pursuant to 38 U.S.C. § 5502(a)(1), and

Congress has not established any standards by which to judge the Secretary’s

appointment of fiduciaries.     38 U.S.C. § 5502(a)(1) provides that the Secretary is

authorized to assign a fiduciary duty in the best interest of the beneficiary: “[w]here it

appears to the Secretary that the interest of the beneficiary would be served thereby,




05-7182                                 -5-
payment of benefits . . . may be made directly or to a relative or some other fiduciary for

the use and benefit of the beneficiary.” 38 C.F.R. § 13.55(a) further provides that “[t]he

Veterans Service Center Manager is authorized to select and appoint . . . the person or

legal entity best suited to receive [VA] benefits in a fiduciary capacity for a beneficiary.”

       Because the Secretary’s decision to appoint Browder’s fiduciary was entirely

discretionary, the Board would not have jurisdiction over Browder’s challenge to that

appointment. The Veterans Court therefore did not have jurisdiction to grant Browder’s

petition for extraordinary relief in the nature of a writ of mandamus.

       We    have    considered    Browder’s     remaining    arguments     and   find   them

unpersuasive.     Because the Veterans Court lacked jurisdiction to issue a writ of

mandamus ordering the Secretary to change Browder’s fiduciary, we affirm.




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