Lechliter v. McDonough

1

Gerald A. Lechliter, Petitioner, v. Denis McDonough, Secretary of Veterans Affairs, Respondent

No. 23-2587

United States Court of Appeals For Veterans Claims

May 3, 2024

Before MEREDITH, FALVEY, and LAURER, Judges.

ORDER

PER CURIAM.

On May 1, 2023, the then-pro se petitioner, Gerald A. Lechliter filed a petition in which he asked the Court to order VA to show cause, pursuant to 28 U.S.C. § 1651(b), why its policy of precluding self-represented claimants from having remote, read-only access to the Veterans Benefits Management System (VBMS)^[1] and other VA information technology (IT) systems is not invalid. Petition (Pet.) at 1-15. He requests that, if VA is unable to do so, the Court set aside that policy.^[2] Pet. at 14.^[3] After VA responded to the petition, the matter was submitted to a panel to consider in part whether the Court has jurisdiction to address the manner in which VA provides access to claims-related documents and if so, what type of relief the Court has authority to provide. ^[4] The petitioner thereafter obtained counsel, the Court ordered the parties to file supplemental memoranda of law, and the Court held oral argument.

During that argument, counsel for the petitioner clarified that the petitioner is seeking only a writ pursuant to 28 U.S.C § 1651(a) compelling VA to issue an appealable decision in response to his request for remote, read-only VBMS access. Oral Argument (OA) at 3:57-5:13, 6:59-7:24 http://www.uscourts.cavc.gov/documents/Lechliter.MP3. Thus, all issues other than the request for an appealable decision are deemed abandoned, including the petitioner's May 30, 2023, motion to construe his petition as seeking relief under 28 U.S.C. § 1651(b) rather than section 1651(a). The Court will not further address the abandoned matters and will dismiss as moot the May 30, 2023, motion. To the extent that the petitioner seeks an order directing VA to issue an appealable decision on his request for remote, read-only VBMS access, the Court holds that he has not met his burden of establishing that the Court has jurisdiction to do so, and the Court will thus dismiss the petition.

I. BACKGROUND

The petitioner, who is now 81 years old, served on active duty in the U.S. Marine Corps from October 1967 to July 1969 and in the U.S. Army from July 1974 to May 1999. Pet. at 2, 18-19. In July 2022, he requested that VA provide him with a copy of his VA claims file, and the following month, he filed a claim for disability compensation for prostate cancer. Id. at 2, 3, 30, 45-47. He is pursuing his claim at the Agency without assistance from an attorney, claims agent, or veterans service organization (VSO). Id. at 2-3, 38. In response to his request for a copy of his claims file, VA mailed him a compact disc (CD) in February 2023, which contained over 10,000 pages of documents. Id. at 30-31. To access those records, the petitioner purchased a CD reader for his computer, but he found it difficult and time consuming to locate information because the CD lacked a table of contents, the records were not in chronological order, and the search function was unreliable. Id. at 3-4, 31-32.

Although VA allows individuals in certain circumstances to review their VBMS records in person at a VA regional office (RO), it would require the petitioner to make a 4-hour round trip drive to do so. Id. at 7. Instead, he asked VA in March 2023 to afford him remote, read-only access to VMBS so he could electronically access his own records from his home. Id. at 6-7, 101-07; OA at 2:07-2:18. It is undisputed that VA has not provided a written response to that request. Pet. at 6-7; OA at 3:58-4:18. In December 2023, the Secretary provided the petitioner with a second CD containing an updated version of his claims folder. Secretary's Solze Notice at 1.

II. PARTIES' ARGUMENTS^[5]

A. Initial Pleadings

1. Petition

The petitioner, prior to retaining counsel, sought a Court order directing VA to justify its policy of denying remote, read-only VBMS access to claimants representing themselves before the Agency or, alternatively, a Court order invalidating that policy. Pet. at 1-15. As support, the petitioner noted that VA grants such access to accredited attorneys, claims agents, VSO representatives, and the staff of those representatives. Id. at 1-2, 5-6 (citing 87 Fed.Reg. at 37,745). He averred that accessing his files in VBMS would be advantageous because the entries are tabbed and organized chronologically, and the Notes section contains claims status information. Id. at 12. Because of the difficulties with using the CD and the specific advantages of remote VA systems access, he contended that VA's omission of self-represented claimants from those eligible for remote VBMS access is discriminatory, unreasonable, and inequitable, and violates veterans' due process rights. Id. at 13-14.

Regarding his standing to seek the requested relief, the petitioner maintained that he would incur costs if he were to drive to an RO to view VBMS in person and, even then, he would not have access to all of the VA systems that veterans' representatives may access. Id. at 10. He further asserted that denying remote VBMS access to self-represented veterans prevents them "from effectively and timely pursuing their claims." Id. at 12-13. Concerning the Court's jurisdiction to provide the requested relief, he argued that the Court has subject matter jurisdiction pursuant to 38 U.S.C. §§ 511, 5701(a), (b), and 7261. Id. at 8. In that regard, he noted that this Court has held that section 5701 is a law affecting the provision of benefits and that the Court has previously determined that "'decisions regarding access to claims files are rendered pursuant to a law affecting the provision [of] veterans' benefits.'" Id. at 9 (quoting Chisholm v. McDonald, 28 Vet.App. 240, 243 (2016) (per curiam order)).

2. Secretary's Response

The Secretary urged the Court either to dismiss the petition for lack of subject matter jurisdiction or to deny the petition because the petitioner has not established his right to a writ. Secretary's Response (Resp.) at 1. Regarding subject matter jurisdiction, the Secretary argued that the "[p]etitioner's right to access his VA file is premised on the Privacy Act," which mandates that the Agency provide individuals with records maintained by VA that pertain to the individual but does not specify in what format such access must be granted. Id. at 3; see id. at 3-4. The Secretary asserted that "[t]he determination by the Secretary to grant electronic access to his own internal system and network, and the manner in which such access is granted, is purely discretionary," and the Court lacks jurisdiction to review such a discretionary determination where "no manageable standards exist to evaluate that decision." Id. at 4. Additionally, the Secretary posited that allowing access to internal VA systems is governed by laws and regulations pertaining to privacy and information security and involves neither "a question of fact or law necessary to a decision over which the Court has jurisdiction" nor a "'benefit claim that is subject to appeal.'" Id. at 5 (quoting 85 Fed.Reg. 9435, 9438 (proposed Feb. 19, 2020) (to be codified at 38 C.F.R. pts. 1, 14)); see id. at 4-5.

If the Court determines that it does have jurisdiction, the Secretary argued that the Court should conclude that the petitioner does not have a right to a writ because he does not have a statutory or regulatory right to remote VBMS access. Id. at 5-9. Remote access, the Secretary explained, is governed by 38 C.F.R. §§ 1.600 through 1.603, which provide such access to specific representatives and their staff under certain circumstances. Id. at 6-8. On the other hand, a claimant's access to his own records is governed by 38 C.F.R. § 1.577, which was promulgated under the Privacy Act and provides only that an individual may review and obtain a copy of his records. Id. at 9. The Secretary stressed that the omission of individual claimants from those eligible for remote VBMS access was driven primarily by security concerns. Id. at 10-15. In that regard, the Secretary noted that a veteran's claims file potentially contains sensitive information, which must be redacted prior to being released to a claimant. Id. at 11-12. Further, providing access to more than 16 million veterans would "present[] insurmountable security concerns related to managing proper access control for claimants and screening claimants as users." Id. at 12. According to the Secretary, this Court, in Green v. McDonald, 28 Vet.App. 281, 292 (2016) (per curiam order), has already held that restricting electronic claims file access based on security concerns is reasonable. Id. at 13.

3. Petitioner's Reply

In reply, the petitioner maintained that the Court has jurisdiction under 28 U.S.C. § 1651(a) based on 38 U.S.C. §§ 511, 5701, and 7261, and the Court's jurisdictional holding in Chisholm. Reply at 1-2. Further, in response to the Secretary's contention that his discretionary decision as to the manner to provide records access is unreviewable by the Court, the petitioner argued that section 5701 and its implementing regulations contain judicially manageable standards to do so. Id. at 2. He requested that the Court either invalidate VA's policy or require VA "to issue a formal denial of [his] request for remote access which he can appeal to the Board." Id. at 10.

B. Supplemental Memoranda of Law

1. Petitioner

The petitioner, through counsel, first asserts that the Court has power to enter orders in aid of its own jurisdiction,^[6] including "removing 'obstacles to the ordinary process for review of veterans benefits decisions.'" Petitioner's Supp. Memo. at 4 (quoting Love v. McDonough, 35 Vet.App. 336, 346 (...