Winsett v. McDonald ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHELIA WINSETT,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7045
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-2824, Judge Robert N. Davis.
---------------------------------------------------------
SHELIA WINSETT,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7046
______________________
2 WINSETT v. MCDONALD
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-2664, Judge William A. Moor-
man.
______________________
Decided: May 11, 2015
______________________
SHELIA WINSETT, Parrish, AL, pro se.
AMANDA TANTUM, Commercial Litigation Branch, Civ-
il Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
JOYCE R. BRANDA, ROBERT E. KIRSCHMAN, JR., MARTIN F.
HOCKEY, JR.; DAVID J. BARRANS, AMANDA BLACKMON,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before LOURIE, BRYSON, and CHEN, Circuit Judges.
PER CURIAM.
Shelia Winsett appeals from two decisions of the
United States Court of Appeals for Veterans Claims (the
Veterans Court). Both decisions arise out of Ms. Winsett’s
long-standing efforts through multiple litigations to
obtain benefits as the alleged surviving spouse of veteran
Gary W. Jacks.
Ms. Winsett appeals: (i) the Veterans Court decision
affirming the regional office’s conclusion that it did not
have jurisdiction to entertain her attempts to reopen a
claim that was pending appeal, Winsett v. Gibson, No. 12-
2824, 2014 WL 2766622 (Vet. App. June 19, 2014) (“June
2014 Decision”); and, (ii) the Veterans Court order deny-
ing her motion to recall the mandate and rescind its
earlier November 1, 2012 order, that order having denied
her petition for mandamus and imposed sanctions for
WINSETT v. MCDONALD 3
frivolous filings, Winsett v. McDonald, No. 12-2664, 2014
WL 6968093 (Vet. App. Dec. 9, 2014) (“December 2014
Order”).
We consolidate these two cases for purposes of appeal.
Fed. Cir. R. 3(b)(2). For the reasons that follow, we affirm
the June 2014 Decision. And because we conclude that
Ms. Winsett failed to sufficiently raise any legal issues to
invoke our jurisdiction with respect to the December 2014
Order, we dismiss for lack of jurisdiction.
I. BACKGROUND
Mr. Jacks and Ms. Winsett were married in 1969 and
divorced in 1977. After Mr. Jacks died in 1989, Ms.
Winsett filed successive surviving spouse claims before a
regional office (RO) of the Department of Veterans Affairs
(DVA). Ms. Winsett’s successive claims at the RO have
resulted in eleven prior appeals to this court. See Winsett
v. Shinseki, 549 F. App’x 998, 999 (Fed. Cir. 2013) (collect-
ing cases). Despite Ms. Winsett’s repeated attempts, to
date she has yet to succeed on the underlying merits of
her case.
The procedural history of Ms. Winsett’s cases is well
chronicled in our prior opinions. See, e.g., id. at 999–
1001; Winsett v. Shinseki, 527 F. App’x 965, 966–68 (Fed.
Cir. 2013). A concise background of this history is none-
theless necessary to provide context to the facts relevant
to the present appeals.
Ms. Winsett’s first relevant claim was denied because
the RO found that she did not qualify as Mr. Jacks’ sur-
viving spouse. According to Ms. Winsett, even though she
and Mr. Jacks divorced in 1977, they had maintained a
common law marriage until Mr. Jacks’ death. See Winsett
v. Nicholson, 25 Vet. App. 114 (2007). The RO found
otherwise, and after appeals to the Board and Veterans
Court, this court affirmed the decision in July 2008.
Winsett v. Peake, 283 F. App’x 796, 798 (Fed. Cir. 2008).
4 WINSETT v. MCDONALD
By then, Ms. Winsett had already filed a second sur-
viving spouse claim with the RO. Although the Board
recognized the first claim was still on appeal, it reopened
her case after determining she had presented new and
material evidence. The Board then denied her second
claim on the merits. The Veterans Court affirmed, and
we found no error with that decision. Winsett v. Shinseki,
397 F. App’x 627, 629 (Fed. Cir. 2010).
Ms. Winsett later filed a petition for writ of manda-
mus, alleging that a misstatement regarding the status of
her case in the Veterans Appeals Control and Locator
System (VACOLS) prevented the court from rendering a
fair and just decision regarding her second claim. The
Veterans Court found that the misstatement had no
bearing on the merits of its prior decision and denied her
petition. Winsett v. Shinseki, No. 12-2664, 2012 WL
5360974 (Vet. App. Nov. 1, 2012). Moreover, noting that a
prior order had explained to Ms. Winsett that her appel-
late rights with respect to her first claim had been ex-
hausted, the Veterans Court imposed sanctions “in light
of the voluminous, repetitive, and frivolous filings . . .
both in this case and in the past.” Id. at *7. Those sanc-
tions prohibited Ms. Winsett from making additional
filings without first filing a motion to seek permission and
paying a $50 filing fee. Id. at *8. The order denying her
petition and imposing sanctions (the November 2012
Order) was subsequently appealed to this court, and we
affirmed. Winsett v. Shinseki, 549 F. App’x 998, 999 (Fed.
Cir. 2013).
The presently appealed December 2014 Order stems
from this November 2012 Order. Specifically, after this
court’s affirmance, Ms. Winsett moved for leave to file a
motion to recall the Veterans Court’s mandate and re-
scind the November 2012 Order. The Veterans Court
reiterated that the misstatement in VACOLS was irrele-
vant to the merits of her underlying claim and denied the
motion. See December 2014 Order, 2014 WL 6968093, at
WINSETT v. MCDONALD 5
*3. In addition, the Veterans Court found no basis to
rescind the sanctions order, finding that Ms. Winsett’s
repeated filings in multiple cases on the same issue
warranted sanctions. Id.
While the second claim was on appeal, Ms. Winsett
filed a third claim with the RO in 2009 (March 2009
claim). That claim was initially denied, and then later
closed after the RO determined it lacked jurisdiction. See
Winsett v. Shinseki, No. 12-1572, 2012 WL 3554585, at *1
(Vet. App. Aug. 20, 2012). Specifically, the RO deter-
mined it did not have jurisdiction because the third claim
was identical to the second claim, which was then-
pending appeal. Id. Ms. Winsett then filed a petition for
writ of mandamus in the Veterans Court, alleging that
the RO violated her constitutional rights when it closed
the March 2009 claim. The Veterans Court denied her
petition and we affirmed her appeal of that denial. Win-
sett, 527 F. App’x at 968–69.
The current appeal of the June 2014 Decision is an
off-shoot of the third claim. In addition to her mandamus
petition challenging the closure of the March 2009 claim,
Ms. Winsett also filed a claim to reopen that same claim.
The RO denied her claim to reopen and she subsequently
appealed to the Board, and then the Veterans Court,
which both affirmed that denial. See June 2014 Decision,
2014 WL 2766622, at *2–4. Ms. Winsett now argues the
Veterans Court erred in the June 2014 Decision because
it failed to recognize that she was raising a new claim—
which she calls an “abused widow” claim—distinct from
the then-pending surviving spouse claims.
II. DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Guillory v. Shinseki, 603 F.3d
981, 986 (Fed. Cir. 2010). We have jurisdiction over “all
relevant questions of law, including interpreting constitu-
tional and statutory provisions.” 38 U.S.C. § 7292(d)(1).
6 WINSETT v. MCDONALD
We lack jurisdiction over any “challenge to a factual
determination” or “challenge to a law or regulation as
applied to the facts of a particular case” absent a constitu-
tional issue. 38 U.S.C. § 7292(d)(2). We set aside a
Veterans Court decision only if it is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance
with law. . . .” 38 U.S.C. § 7292(d)(1)(A).
A
With respect to the June 2014 Decision, Ms. Winsett
argues that the Veterans Court erred in determining that
the Board properly dismissed her “abused widow” claim. 1
The Board, as affirmed by the Veterans Court, found that
Ms. Winsett’s “abused widow” claim was duplicative of
her previously filed surviving spouse claim. Accordingly,
the Veterans Court determined that the RO lacked juris-
diction to render a decision regarding the “abused widow”
claim.
Ms. Winsett’s chief argument on appeal is that her
“abused widow” claim is legally distinct from her claim for
surviving spouse status. Because, in her view, the claims
are different, the RO had jurisdiction to decide the merits,
and the Board decision to dismiss her latest claim was in
error. In essence, Ms. Winsett complains that she has not
yet had the opportunity to litigate her “abused widow”
claim.
The government responds that Ms. Winsett misun-
derstands the law in this area. According to the govern-
ment, the fact of abuse does not give rise to a claim itself,
but rather may be a factual consideration when determin-
ing whether a claimant qualifies for surviving spouse
1 To the extent that Ms. Winsett actually seeks to
challenge the closure of her March 2009 claim, this court
has already decided the merits of that claim. See Winsett,
527 F. App’x 965.
WINSETT v. MCDONALD 7
benefits. Specifically, the statute governing entitlement
to surviving spouse benefits requires that a claimant
must (1) be the spouse of the veteran at the time of death
and (2) have lived continuously with the veteran until the
time of death. 38 U.S.C. § 101(3). The government con-
tends that the fact of abuse merely provides an exception
to the requirement that a widow satisfy the second re-
quirement. Id. The government concludes that Ms.
Winsett’s so-called “abused widow” claim is thus not a
separate cognizable legal claim. Moreover, the govern-
ment explains that this abuse allegation was raised and
considered by the Board in a prior decision. The Board
nonetheless found no valid marriage because Ms. Winsett
failed to prove that she was Mr. Jacks’ spouse at the time
of his death as required under the statute.
We agree with the government. As an initial matter,
we have jurisdiction over the purely legal question of
whether there exists a stand-alone legal claim relating to
Ms. Winsett’s claim of abuse. 38 U.S.C. § 7292(d)(1). We
find that it does not. As the government properly notes,
any “misconduct” by the veteran may be taken into ac-
count when considering whether the spouse lived continu-
ously with the veteran from marriage until death:
The term “surviving spouse” means (except for
purposes of chapter 19 of this title) a person of the
opposite sex who was the spouse of a veteran at
the time of the veteran’s death, and who lived
with the veteran continuously from the date of
marriage to the date of the veteran’s death (except
where there was a separation which was due to
the misconduct of, or procured by, the veteran
without the fault of the spouse) . . . .
38 U.S.C. § 101(3). Her current claim is no different in
character from her surviving spouse claim. Accordingly,
the Veterans Court’s June 2014 Decision correctly deter-
mined that her claim was properly dismissed.
8 WINSETT v. MCDONALD
Ms. Winsett also makes the constitutional claim that
her Fifth Amendment right to due process has been
violated because: (i) no statement of the case was issued
with respect to her dismissed “abused widow” claim; and
(ii) the RO is not allowing her claim to proceed on the
merits. Ms. Winsett contends that the latter also consti-
tutes a violation of her First Amendment right to an
appeal.
We find these claims likewise without merit. As the
Veterans Court pointed out, because the RO lacked juris-
diction to consider Ms. Winsett’s “abused widow” claim to
begin with, it did not need to issue a statement of the
case. See June 2014 Decision, 2014 WL 2766622, at *2.
Ms. Winsett’s other argument fails for the reason that her
claims have been heard and considered as part of her
surviving spouse claims. Id. And to the extent her First
Amendment claim is separate from her Fifth Amendment
claim, it is constitutional in name only and does not
invoke this court’s jurisdiction. See Helfer v. West, 174
F.3d 1332, 1335 (Fed. Cir. 1999).
We have considered Ms. Winsett’s remaining argu-
ments and conclude that they are without merit. For the
foregoing reasons, we affirm the Veterans Court’s June
2014 Decision.
B
With respect to the December 2014 Order, Ms. Win-
sett argues that the Veterans Court improperly denied
her motion to recall the Veterans Court’s mandate and
rescind its November 1, 2012 order denying her petition
for mandamus and imposing sanctions. While the Veter-
ans Court has the authority to recall a prior mandate, it
does so only in “extraordinary circumstances.” McNaron
v. W., 12 Vet. App. 334, 336 (1999) (quoting Calderon v.
Thompson, 523 U.S. 538, 550 (1998)). Such discretion
“should be exercised sparingly, and only upon a showing
of exceptional circumstances.” Serra v. Nicholson, 19 Vet.
WINSETT v. MCDONALD 9
Ohio App. 268, 271 (2005) (quoting Boston and Me. Corp. v.
Town of Hampton, 7 F.3d 281, 283 (1st Cir. 1993)). Here,
Ms. Winsett challenges the Veterans Court’s determina-
tion that the misstatement in VACOLS was not relevant
to the underlying merits of Ms. Winsett’s claims and thus
did not warrant recall of the mandate. This court has
already considered this issue. Winsett, 549 F. App’x at
1000–01. And to the extent that Ms. Winsett raises new
factual bases for challenging the Veterans Court’s deter-
mination, we do not have jurisdiction to review such
questions. See 38 U.S.C. § 7292(d)(2).
We have considered Ms. Winsett’s remaining argu-
ments and conclude they are without merit. Accordingly,
we dismiss Ms. Winsett’s challenge to the December 2014
Order for lack of jurisdiction.
C
Having access to the courts to vindicate one’s legal
rights is a hallmark of our judicial system. Yet given Ms.
Winsett’s litigation history, we caution that any further
appeals re-challenging issues decided here, or in any of
this court’s prior eleven decisions, may subject her to
sanctions. Rule 38 of the Federal Rules of Appellate
Procedure provides that “[i]f a court of appeals shall
determine that an appeal is frivolous, it may award just
damages and single or double costs to the appellee.” This
is because “[a] frivolous appeal imposes costs not only
upon the party forced to defend it, but also upon the
public whose taxes supporting this court and its staff are
wasted on frivolous appeals.” Finch v. Hughes Aircraft
Co., 926 F.2d 1574, 1578 (Fed. Cir. 1991).
We also note that this court’s authority to allow peti-
tioners to proceed in forma pauperis is discretionary in
nature. 28 U.S.C. § 1915(a)(1). While we recognize the
importance of making such petitions available to pro se
litigants, “[i]t is vital that the right to file in forma pau-
peris not be incumbered by those who would abuse the
10 WINSETT v. MCDONALD
integrity of our process by frivolous filings.” Zatko v.
California, 502 U.S. 16 (1991) (per curiam) (quoting In re
Amendment to Rule 39, 500 U.S. 13, 13 (1991)) (quotation
marks omitted). Given Ms. Winsett’s repetitive filings at
this court and the below tribunals, we advise that any
additional applications to proceed in forma pauperis
should be subject to additional scrutiny or, in the alterna-
tive, subject to an order to show cause why the petition for
review should not be dismissed as frivolous. See 28
U.S.C. § 1915(e)(2).
III. CONCLUSION
For the foregoing reasons, we affirm the Veterans
Court’s June 2014 Decision, 2014 WL 2766622, and
dismiss Ms. Winsett’s appeal with respect to the Decem-
ber 2014 Order, 2014 WL 6968093, for lack of jurisdiction.
Appeal no. 2015-7045 is AFFIRMED
Appeal no. 2015-7046 is DISMISSED