Yu v. West

Yu v. West, 11 Vet. App. 176, decided 1998-04-28.

ORDER

PER CURIAM: This case is before the Court on appeal of a September 23, 1992, Board of Veterans’ Appeals (Board or BVA) decision concluding that the veteran had not presented new and material evidence to reopen his disallowed claims for service connection for a psychiatric disorder and for residuals of scarlet fever. The appellant has repeatedly and unsuccessfully sought to have the Court’s review of the September 1992 BVA decision made on the basis of a redacted record on appeal (ROA). See YU v. Brown, 8 Vet.App. 184, 184-85 (1995) (per curiam order) (holding un1er 38 U.S.C. § 7252(b) that “a record that was before the Secretary or the Board should be before the Court as part of the ROA in the same form as it was before the [Department of Veterans Affairs (VA) ]”). On February 18, 1998, the Court issued an order denying the appellant’s motion to include in the ROA a January 12, 1998, letter from the Department of the Army Board for Correction of Military Records (BCMR); the Court de-*177dined to revisit the redaction issue. The panel then ordered the Secretary to file his brief on the merits and returned the case to the single judge for further consideration and disposition when filings were complete.

On February 25,1998, the appellant filed a motion for reconsideration by the panel of its February 18, 1998, order. The appellant refers to United States v. Anderson, 481 F.2d 685, 702 n. 19 (4th Cir.1973), aff'd, 417 U.S. 211, 94 S.Ct. 2258, 41 L.Ed.2d 20 (1974). The appellant also seeks a stay of proceedings in this Court, noting that he has pending before the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) a motion for that court’s reconsideration of a December 22, 1997, decision by that court dismissing his appeal of a September 23,1997, order by this Court declining further reconsideration of the redaction issue; he adds that he intends to seek review in the Supreme Court if the Federal Circuit denies his motion for reconsideration.

On March 9, 1998, the appellant filed a motion in which he asserts that he has suffered sexual harassment by the VA Office of the General Counsel regarding the redaction issue, requests an award of back-benefits and damages, and reiterates his motion for a stay. On March 20,1998, the Secretary filed a motion for a stay of proceedings. On March 23,1998, the appellant filed a pleading in which he informs the Court that the Federal Circuit had denied his motion for reconsideration of its December 22, 1997, decision, and he notes that he will not seek review by the Supreme Court. However, he states that he “anticipates” appeal to the Federal'Circuit if the Court does not rule in his favor concerning the BCMR issue, and he seeks a decision on the sexual harassment issue. As to the BCMR issue, he states that he had never intended that the BCMR letter be included in the ROA; he argues that that letter bears upon the correctness of the Court’s refusal to review the instant appeal upon a redacted ROA because that letter states that “the word ‘homosexual’ is not mentioned in [his] Report of Separation” and that “there is no indication that [he was] diagnosed as a homosexual”. The appellant apparently also contends, relying upon Anderson, supra, that because the Secretary agreed to a redacted ROA in 1993 he was estopped from reneging on that agreement and filing a revised, unredacted ROA with the Court in 1995. See YU, supra.

The Court notes that the material the appellant cites in Anderson — “[a]ny reference to material not in the agreed record for appeal, much less its inclusion in a brief filed with the Court, is both improper and censurable”, Anderson, 481 F.2d at 702 n. 19— refers to a situation where defendants attached to their brief certain affidavits that were not part of the record on appeal. Thus, Anderson does not bear at all upon the proper composition of the ROA, which, in this case, is controlled by statute, 38 U.S.C. § 7252(b), and by the Court’s decision in YU, supra, and thus the appellant’s argument does not supply grounds for reconsideration of the Court’s February 18, 1998, order. Indeed, Anderson provides support for the Court’s February 18, 1998, order regarding the BCMR letter.

As to the appellant’s new claim relating to alleged sexual harassment, the Court possesses no jurisdiction over such a claim. See 38 U.S.C. §§ 7266(a), 7252(a); In the Matter of Fee Agreement of Cox, 10 Vet.App. 361, 366 (1997) (this Court “has jurisdiction to review VA adjudicative actions only under 38 U.S.C. § 7252(a) and pursuant to a final Board decision”); see also Horowitz v. Brown, 5 Vet.App. 217, 225 (1993) (“claimant seeking to appeal an issue to the Court must first obtain a final BVA decision on that issue”). To the extent that the appellant seeks an award of benefits on the merits of his appeal of the Board decision on appeal, the Court has no occasion to reach the merits of the appeal until all pleadings are complete; at this point, the Secretary’s brief on the merits has not been filed, and the time for any reply by the appellant has thus not expired. This case is thus not ripe for consideration on the merits.

On consideration of the foregoing, it is

ORDERED that the appellant’s motion for reconsideration of the Court’s February 18, 1998, order is DENIED. It is further

*178ORDERED that the appellant’s motion for a stay pending action by the Federal Circuit on the appellant’s motion for that Court’s reconsideration of its December 22, 1997, order is denied as moot. It is further

ORDERED that, insofar as the appellant has expressed an intent to appeal the Court’s February 18,1998, order and any decision on the sexual harassment issue, the Secretary’s motion for a stay will be granted. It is further

ORDERED that, insofar as the Court has declined to reconsider the redaction issue and insofar as the appellant appears unwilling to proceed to the merits until he has exhausted all appeals on that issue, the stay granted by this order will continue until such time as the appellant notifies the Court of his willingness to proceed to the merits or until further order of the Court, and the Clerk of the Court will return to the appellant any pleading other than such a notification. The Court notes that the case now reverts to the single judge for further consideration at the appropriate time.

ORDER

On May 4, 1998, the appellant filed a 13-page motion for reconsideration of the Court’s April 28, 1998, order to the extent that it had ruled that the Court had no jurisdiction over a March 9, 1998, motion by the appellant relating to sexual harassment and seeking damages and back benefits. The Court has reviewed the appellant’s motion.

On May 7, 1998, the Court received a 12-page pleading, which the appellant characterized as requesting an “Appeal to the Circuit”. The text of the pleading indicates that the appellant seeks to appeal the Court’s April 28, 1998, order to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit).

On consideration of the foregoing, it is

ORDERED that the appellant’s May 4, 1998, motion for reconsideration is denied. It is further

ORDERED that the pleading received on May 7, 1998, will be considered by the Court as a Notice of Appeal to the Federal Circuit from the Court’s April 28, 1998, denial of his March 9, 1998, motion and as such will be forwarded to the Federal Circuit for consideration. It is further

ORDERED that the stay of proceedings in this Court imposed by the April 28, 1998, order will continue.

Yu v. West, 11 Vet. App. 453, decided 1998-08-25.

ORDER

PER CURIAM: This case is before the Court on appeal of a September 23, 1992, Board of Veterans’ Appeals (Board or BVA) decision concluding that the veteran had not presented new and material evidence to reopen certain claims. The appellant has consistently sought to have the record on appeal (ROA) redacted to omit certain references to homosexuality that he finds objectionable, and the Court has concluded that it is without authority to so redact the ROA because its review of BVA decisions on appeal must be based on the same record that was before the Board. See YU v. Brown, 8 Vet.App. 184, 184-85 (1995) (per curiam order).

On April 28, 1998, the Court denied yet another motion by the appellant that sought to achieve redaction through another theory; the Court also concluded that it lacked jurisdiction over a sexual harassment claim that the appellant first articulated in a March 9, 1998, motion before this Court because the appellant had not received a final decision by the BVA on that matter. The Court, noting the appellant’s apparent unwillingness to proceed to the merits, stayed the appeal pending further order of the Court or an expression on the part of the appellant of a willingness to proceed on the merits. On June 1, 1998, the appellant filed a motion seeking (1) the disqualification and recusal of the judges on this panel and (2) apparently if such recusal were not granted, then full Court review of the Court’s April 28, 1998, order. However, the appellant had simultaneously filed an appeal of the April 28, 1998, order to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), thereby depriving this Court of jurisdiction, so that *454on June 10, 1998, the Court held in abeyance the appellant’s motions pending the resolution of his appeal to the Federal Circuit. On June 23, 1998, the Federal Circuit dismissed the veteran’s appeal for lack of jurisdiction, because he had not obtained a final appeal-able decision in accordance with 38 U.S.C. § 7292(a), and noted its agreement with this Court’s observation in its April 28, 1998, order that the appellant appears unwilling to proceed to the merits of the case. The Federal Circuit’s mandate as to that dismissal order was issued on August 14, 1998; hence, the appellant’s June 1, 1998, motion for disqualification and recusal is now ready for disposition.

In his motion for disqualification and recu-sal, the appellant—apparently misunderstanding the nature of the Court’s decision in YU, supra, and the Court’s April 28, 1998, order—argues the following: (1) He had an agreement with the Secretary concerning the content of the ROA; (2) the long litigation concerning the redaction of the ROA confers jurisdiction upon the Court of his sexual harassment claim; and (3) he has presented evidence to the Court that any documents in the ROA referring to homosexuality on his part are erroneous. He suggests that this panel’s “continually on all legitimate arguments ... refusing] to remove the word ‘Homo’ from the ROA after a legitimate agreement with General Counsel” constitutes evidence of antagonism toward him by the panel; that the Court’s reliance upon the Department of Veterans Affairs (VA) Office of the General Counsel (OGC) for the filing of pleadings and documents in this case and in other cases before this Court reflects favoritism toward OGC; and that the Court is biased toward him because of the references to homosexuality in the ROA.

Section 455 of title 28, U.S.Code, made applicable to this Court by operation of 38 U.S.C. § 7264(c), provides in pertinent part:

(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any preceding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) When he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

28 U.S.C. § 455(a), (b)(1). -The Court has concluded that “subsection (a) covers circumstances that appear to create partiality, whether or not there is actual bias or prejudice, and that subsection (b)(1) covers circumstances in which actual bias or prejudice exists”. Higgins v. Brown, 7 Vet.App. 389, 391 (1995). Disqualification under section 455(a) is warranted “when a reasonable person, knowing all the facts, would question the judge’s impartiality”. Id. at 392. However, when disqualification is not suggested on the basis of an “extrajudicial source” but upon judicial rulings themselves, as the appellant here so alleges, disqualification is warranted under sections 455(a) or (b)(1) only if the ruling or rulings show “a deep-seated favoritism or antagonism that would make fair judgment impossible”. Id. at 392-93 (quoting Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994)). As the Supreme Court ruled in Liteky, an objection to judicial rulings provides “[a]l-most invariably ... proper grounds for appeal, not for recusal”. Liteky, 510 U.S. at 555, 114 S.Ct. 1147.

As to the appellant’s instant motion, the Court concludes that a “reasonable person, knowing all the facts” could not question the impartiality of the panel members and that its April 28, 1998, decision does not reveal “a deep-seated favoritism or antagonism”. The appellant’s arguments notwithstanding, it is well-settled law that the Court must review a Board decision on the basis of the record before the Secretary and the Board, see, e.g., 38 U.S.C. § 7252(b); Bell v. Derwinski, 2 Vet.App. 611, 612-13 (1992) (per curiam order); Rogozinski v. Derwinski, 1 Vet.App. 19 (1990), and does not possess jurisdiction over an appellant’s claim absent a final Board decision, see, e.g., 38 U.S.C. § 7266(a), In the Matter of Fee Agreement of Cox, 10 Vet.App. 361, 366 (1997) (Court “has jurisdiction to review VA adjudicative actions only under 38 U.S.C. § 7252(a) and pursuant to a final Board decision”), vacated on other grounds, 149 F.3d. 1360 *455(Fed.Cir.1998). The appellant’s repeated failures to win the remedy of redaction that he seeks arise not from partiality on the part of the panelists but from the fact that the Court is precluded under law from supplying the remedy he seeks.

On consideration of the foregoing, it is

ORDERED that the appellant’s motion for disqualification and recusal of the panel is denied. The appellant’s motion for en banc review of the Court’s April 28, 1998, order will be presented to the full Court. The stay of proceedings imposed by the Court’s April 28, 1998, order will continue until such time as the appellant notifies the Court of his willingness to proceed to the merits or until further order of the Court.

Yu v. West, 12 Vet. App. 51, decided 1998-11-20.

ORDER

PER CURIAM: On September 24,1998, the Court received from the pro se appellant an untitled 37-page motion with a three-page attachment. On October 1, 1998, the Clerk of the Court (Clerk) notified the appellant that his motion was not accepted for filing because it exceeded the page limit for motions set forth in Rule 27(c) of the Court’s Rules of Practice and Procedure (Rules). On October 7, 1998, the appellant filed a motion for reconsideration of the Clerk’s action.

Rule 27(c) declares that the requirements in Rule 32 as to “length ... for principal *52briefs apply to motions and responses”. Rule 32(g) limits principal briefs to 25 pages. The Clerk correctly construed that Rule as applicable to the appellant’s September 24, 1998, motion and hence did not file that motion and returned it to the appellant. The Court construes the appellant’s October 7, 1998, motion as also a motion for permission to exceed the page limit and will deny the motion as so construed.

Finally, the Court has determined that this case, in which the Notice of Appeal (NOA) was filed on December 18,1992, and in which the appellant has filed with the Court more than 60 motions, other pleadings, or communications to date, and in which the appellant filed a brief on July 29, 1993, and a supplemental brief on March 21, 1996, has consumed a disproportionate and inordinate amount of judicial and Court resources. Hence, the Court expressly finds good cause to suspend its usual Rules and will direct the Clerk to return to the appellant, without filing, any motion, other pleading, or communication, submitted by him, that mentions or discusses to any extent the redaction issue relating to the record on appeal in this case; or any motion, other pleading, or communication submitted by him while another motion, other pleading, or communication is pending in the Court; or any motion, other pleading, or communication submitted by him that exceeds five pages in length (except for a reply brief under Rules 28(c), 31(a), and 32, which may be no more than 15 pages in length and may address only matters raised in the Secretary’s brief). See U.S. Vet.App. R. 2 (“[t]o expedite a decision, or for other good cause shown, this Court may suspend the application of any of these rules in a particular case and may order proceedings in accordance with its direction”), 28(c), 31(a), 32. Moreover, the Court will order that the Secretary proceed to file his brief within 30 days.

On consideration of the foregoing, it is

ORDERED that the appellant’s motion for reconsideration of the Clerk’s October 1, 1998, action is denied. It is further

ORDERED that the appellant’s construed motion for permission to exceed the page limit in Rules 27(c) and 32(g) with respect to the motion he submitted on September 24, 1998, is denied. It is further

ORDERED that the Clerk will return to the appellant (1) any motion, other pleading, or communication, that he submits, that mentions or discusses to any extent the redaction issue relating to the record on appeal in this case, or (2) any motion, other pleading, or communication that he submits in this case while another motion, other pleading, or communication is pending in this Court, or (3) any motion, other pleading, or communication that he submits in this case that exceeds five pages in length (except for a reply brief as described above). See U.S. Vet.App. R. 2, 28(c), 31(a), 32. It is further

ORDERED that, not later than 30 days after the date of this order, the Secretary file, and serve on the appellant, the Secretary’s brief. The Court notes that the case reverts to the single judge for further consideration.