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2 Vet. App. 231

Jones v. Derwinski

United States Court of Appeals for Veterans Claims · decided 1992-03-13

Cited by 14 later decisions — most recently January 2001

1 federal appellate ·

Applies 28 U.S.C. § 2412 · 28 U.S.C. § 451 · 38 U.S.C. § 7251 · 38 U.S.C. § 7252

Relies on Freytag v. Commissioner · The American Insurance Company v. 356 Bales of Cotton David Canter · Essex Electro Engineers, Inc. v. United States

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Decided 1992-03-13

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MANKIN, Associate Judge,

¶1dissenting:

¶2In spite of the majority’s attempt to explain it away, the law of this Circuit, as expressed in Essex Electro Eng’rs Inc. v. United States, 757 F.2d 247 (Fed.Cir.1985) prevails.

¶3While 28 U.S.C. § 2412(d)(2)(F) (1991) states that “ ‘court’ includes the United States Claims Court,” it is not meant to be an exclusion of all other Article I courts not specifically enumerated. The amendment to include the United States Claims Court within the purview of the EAJA was enacted before the creation of the United States Court of Veterans Appeals. Pub.L. 99-80, § 2, 99 Stat. 185 (1985). The United States Court of Veterans Appeals was established by an act of Congress “under Article I of the Constitution of the United States”. Veterans Judicial Review Act of 1988 (VJRA), Pub.L. 100-687, Title III, Sec. 301, 102 Stat. 4113 (codified as amended at 38 U.S.C. § 7251 (formerly § 4051)). “The Court of Veterans Appeals shall have exclusive jurisdiction to review decisions of the Board of Veterans’ Appeals.” 38 U.S.C. § 7252 (formerly § 4052). Under this authority, this Court has exclusive jurisdiction over such actions appealed from the Board of Veterans’ Appeals to fulfill the jurisdictional requirement of 28 U.S.C. § 2412(a) (1991). While the majority relies on the authority of 28 U.S.C. § 451 (1991), which does not specifically enumerate the United States Court of Veterans Appeals as a “court of the United States,” it is noteworthy that this statute has not been amended since 1982, prior to the enactment of the Veterans’ Judicial Review Act of 1988. The United States Supreme Court has held since 1828 that the judicial power of the United States is not limited to the judicial power as defined under Article III of the United States Constitution and may be exercised by legislative courts. American Ins. Co. v. Canter, 1 Pet. 511, 546, 7 L.Ed. 242 (1828). The Supreme Court has recently held that an Article I court, which exercises judicial power, can be a “Court of Law,” within the meaning of the Appointments Clause of the United States Constitution. Freytag v. C.I.R., — U.S. —, *236111 S.Ct. 2631, 2644-45, 115 L.Ed.2d 764 (1991). In that light, the United States Court of Veterans Appeals, being an Article I court, can be a “court of the United States” within the meaning of 28 U.S.C. §§ 451 and 2412. Thus, the EAJA is applicable to this Court, and Essex binds us to the law of the Federal Circuit.

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