Belton v. McDonald ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LARRY E. BELTON, SR.,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7104
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-1799, Judge Mary J. Schoelen.
______________________
Decided: February 8, 2016
______________________
LARRY E. BELTON, SR., San Diego, CA, pro se.
ERIN MURDOCK-PARK, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also represent-
ed by SCOTT D. AUSTIN, ROBERT E. KIRSCHMAN, JR.,
BENJAMIN C. MIZER; Y. KEN LEE, BRYAN THOMPSON, Office
of General Counsel, United States Department of Veter-
ans Affairs, Washington, DC.
______________________
2 BELTON v. MCDONALD
Before REYNA, BRYSON, and CHEN, Circuit Judges.
PER CURIAM.
Larry E. Belton, Sr. appeals pro se from the decision
of the United States Court of Appeals for Veterans Claims
(the “Veterans Court”) denying his petition for a writ of
mandamus. Because Mr. Belton failed to exhaust his
administrative remedies before seeking mandamus relief,
we affirm.
BACKGROUND
Mr. Belton served in the United States Air Force and
is a veteran of the Vietnam War. J.A. 128; S.A. 28. Mr.
Belton is currently incarcerated. Mr. Belton seeks to
apportion to his wife disability compensation received
from the Department of Veterans Affairs (“VA”) during
his incarceration. J.A. 2, 128.
On April 24, 2015, Mr. Belton filed a petition for a
writ of mandamus before the Veterans Court, asserting
clear and unmistakable error. S.A. 6. Mr. Belton argues
that mandamus relief is appropriate because the Board of
Veterans’ Appeals (“Board”) failed to act on his motion
seeking retroactive apportionment benefits for his wife.
S.A. 7.
The Veterans Court denied Mr. Belton’s petition and
his motions for sanctions and to compel production be-
cause Mr. Belton failed to follow the proper administra-
tive process for relief. S.A. 2–4, 162–63. The Veterans
Court instructed Mr. Belton that he first needs to “pursue
resolution of this issue with VA, e.g., by seeking issuance
of a decision on the motions by the [regional office] or
Board.” S.A. 3.
Mr. Belton appeals. In the informal papers he filed
before this Court, he claims that the VA wrongfully
denied apportionment because the regional office lost his
BELTON v. MCDONALD 3
marriage certificate and ignored other evidence. J.A. 2.
We have jurisdiction under 38 U.S.C. § 7292. 1
DISCUSSION
The scope of our review in an appeal from a Veterans
Court decision is limited. We may review a Veterans
Court decision on a rule of law or the interpretation of any
statute or regulation that was relied on by the Veterans
Court in making the decision. 38 U.S.C. § 7292(a). Ex-
cept as to constitutional issues, we cannot review chal-
lenges to a factual determination or challenges to a law or
regulation as applied to the facts of a particular case. Id.§ 7292(d)(2).
A writ of mandamus is an extraordinary remedy that
we will not grant without a clear right to the relief
sought. Mukand Int’l, Ltd. v. United States, 502 F.3d
1366, 1369 (Fed. Cir. 2007). A writ of mandamus should
not issue if the petitioner has administrative recourse in
the proceedings below. Lamb v. Principi, 284 F.3d 1378,
1384 (Fed. Cir. 2002).
We conclude that the Veterans Court was correct to
deny Mr. Belton’s writ of mandamus. As the Veterans
Court observed, Mr. Belton cannot seek appellate relief
without first pursuing all administrative remedies.
Hargrove v. Shinseki, 629 F.3d 1377, 1379 (Fed. Cir.
2011) (“The only issue on appeal to this Court is whether
the Veterans Court properly denied a petition for writ of
mandamus when Mr. Hargrove could still avail himself of
1 Although unclear from the informal appeal, to the
extent Mr. Belton appeals from the Veterans Court’s
decisions on his motions for sanctions and to compel
production, we lack jurisdiction over those matters be-
cause those decisions rest on the Veterans Court’s appli-
cation of law to the facts.
4 BELTON v. MCDONALD
his administrative appeal rights. We conclude the Veter-
ans Court properly denied the writ of mandamus.”).
Because the Veterans Court did not err in denying
mandamus relief, we affirm.
AFFIRMED
COSTS
No costs.