Case: 20-1957 Document: 28 Page: 1 Filed: 02/02/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CURTIS R. GAYLORD,
Claimant-Appellant
v.
DAT TRAN, ACTING SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2020-1957
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-2184, Judge Amanda L. Mere-
dith.
______________________
Decided: February 2, 2021
______________________
CURTIS R. GAYLORD, Joliet, IL, pro se.
IN KYU CHO, Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by JEFFREY
B. CLARK, ROBERT EDWARD KIRSCHMAN, JR., LOREN MISHA
PREHEIM; AMANDA BLACKMON, Y. KEN LEE, Office of Gen-
eral Counsel, United States Department of Veterans Af-
fairs.
Case: 20-1957 Document: 28 Page: 2 Filed: 02/02/2021
2 GAYLORD v. TRAN
______________________
Before LOURIE, WALLACH, and CHEN, Circuit Judges.
PER CURIAM.
Curtis R. Gaylord appeals from a decision of the United
States Court of Appeals for Veterans Claims (the “Veterans
Court”) denying his petition for a writ of mandamus to com-
pel the Department of Veterans Affairs (“VA”) to recognize
an earlier claim for benefits and amend the effective date
of disability compensation for his service connection for flat
feet. See Gaylord v. Wilkie, No. 20-2184,
2020 WL 1685834
(Vet. App. Apr. 7, 2020) (“Decision”). Because Gaylord only
challenges the application of law to fact, over which we lack
jurisdiction, we dismiss the appeal.
BACKGROUND
Gaylord served in the United States Army from Octo-
ber 1974 to March 1976. Gaylord filed a claim for entitle-
ment to service connection for flat feet on July 29, 2002.
On October 5, 2012, the VA granted his claim for entitle-
ment and assigned a 10 percent disability rating with an
effective date of July 29, 2002. On January 8, 2016, Gay-
lord requested that the VA change the effective date to
March 16, 1976, the date of his separation from service.
Gaylord asserted that he had filed an earlier claim for en-
titlement to service connection for flat feet on March 22,
1976.
On August 22, 2016, the VA’s Chicago Regional Office
(“RO”) denied Gaylord’s request to revise the effective date
in the RO’s Statement of the Case (“SOC”). The RO stated
that the VA had no evidence that a claim for service con-
nection for flat feet was received by the VA prior to July 29,
2002. The VA mailed Gaylord a letter dated July 23, 2019
regarding a hearing scheduled for September 30, 2019.
The record does not indicate that Gaylord attended that
hearing. The VA mailed Gaylord a letter dated February
Case: 20-1957 Document: 28 Page: 3 Filed: 02/02/2021
GAYLORD v. TRAN 3
5, 2020 regarding a second hearing scheduled for May 6,
2020.
On March 24, 2020, Gaylord filed a petition for a writ
of mandamus asking the Veterans Court to compel the VA
to amend the effective date of disability compensation for
his flat feet. Gaylord asserted that the August 22, 2016
SOC is null and void because he states, the VA lied when
it stated that the RO had no evidence of a March 22, 1976
claim for entitlement to service connection for flat feet.
On April 7, 2020, the Veterans Court denied Gaylord’s
petition for a writ of mandamus. The court stated that “[i]t
appears to the Court that the petitioner seeks a writ as a
substitute for the appellate process.” Decision,
2020 WL
1685834, at *1. The court noted that the VA had scheduled
several hearings for Gaylord with the Board of Veterans’
Appeals.
Id. The court also noted that if Gaylord “contin-
ues to pursue alternative means to obtain a decision on his
request for an earlier effective date and VA fails to respond
within a reasonable period of time, he may return to the
Court and file a new petition asking the Court to compel
VA to respond.”
Id.
On April 28, 2020, Gaylord moved for reconsideration.
On May 8, 2020, the Veterans Court denied Gaylord’s mo-
tion for reconsideration and entered judgment. Gaylord
timely appealed.
DISCUSSION
We have limited jurisdiction over appeals from the Vet-
erans Court. See
38 U.S.C. § 7292. We decide “relevant
questions of law, including interpreting constitutional and
statutory provisions.”
38 U.S.C. § 7292(d)(1). “Unless an
appeal presents a constitutional issue, we may not review
challenges to factual determinations or challenges to a law
or regulation as applied to the facts of a particular case.”
Harris v. Shinseki,
704 F.3d 946, 948 (Fed. Cir. 2013)
Case: 20-1957 Document: 28 Page: 4 Filed: 02/02/2021
4 GAYLORD v. TRAN
(citing
38 U.S.C. § 7292(d)(2)). The Veterans Court has au-
thority to grant a writ of mandamus if the veteran has es-
tablished: “(1) that he has a clear legal right to relief;
(2) that there are no adequate alternative legal channels
through which the petitioner may obtain that relief, and
(3) that the grant of mandamus relief is appropriate under
the circumstances.” Beasley v. Shinseki,
709 F.3d 1154,
1157 (Fed. Cir. 2013); see also Cheney v. United States Dist.
Court,
542 U.S. 367, 380–81,
124 S. Ct. 2576,
159 L. Ed. 2d
459 (2004). But “[t]he remedy of mandamus is a drastic
one, to be invoked only in extraordinary situations.” Kerr
v. United States Dist. Court,
426 U.S. 394, 402,
96 S. Ct.
2119,
48 L. Ed. 2d 725 (1976).
On appeal, Gaylord argues that the VA did not afford
him a fair and meaningful proceeding. Gaylord argues that
the VA has violated his constitutional rights. He asserts
that his March 22, 1976 claim is a property right, and that
the VA has deprived him of due process by offering an in-
adequate process for appeal. The government responds
that we lack jurisdiction to review the Veterans Court’s de-
nial because Gaylord only disagrees with the Veterans
Court’s application of the law to his factual circum-
stances—specifically, whether there are no adequate alter-
native legal channels through which Gaylord may obtain
his requested relief. The government therefore argues that
we should dismiss Gaylord’s appeal. The government al-
ternatively argues that we should affirm the Veteran’s
Court’s decision because Gaylord identified no error.
We agree with the government that we lack jurisdic-
tion to consider the merits of Gaylord’s appeal. Gaylord’s
characterization of the issue on appeal as “constitutional in
nature does not confer upon us jurisdiction that we other-
wise lack.” Helfer v. West,
174 F.3d 1332, 1335 (Fed. Cir.
1999). Gaylord’s appeal presents only issues challenging
factual determinations and the application of law to fact.
Gaylord continues to argue on appeal that he has been
Case: 20-1957 Document: 28 Page: 5 Filed: 02/02/2021
GAYLORD v. TRAN 5
denied a fair and meaningful proceeding and there can be
no regular appellate process based on the RO’s alleged mis-
representation that the RO had no evidence of a March 22,
1976 claim for entitlement to service connection. But this
argument is merely a challenge to the Veterans Court’s fac-
tual determination that Gaylord sought a writ as a substi-
tute for an appellate process. See also Bankers Life & Cas.
Co. v. Holland,
346 U.S. 379, 383 (1953) (“[E]xtraordinary
writs cannot be used as substitutes for appeals. . . .”).
Finally, Gaylord argues that the Veterans Court’s ap-
plication of case law on availability of writs was misplaced.
See Decision,
2020 WL 1685834, at *1 (citing DiCarlo v. Ni-
cholson,
20 Vet. App. 52, 56–57 (2006); Lamb v. Principi,
284 F.3d 1378, 1384 (Fed. Cir. 2002)). But the application
of case law to the facts of a particular case is a quintessen-
tial application of law to fact over which we lack jurisdic-
tion. Accordingly, we lack jurisdiction over Gaylord’s
appeal.
CONCLUSION
We have considered Gaylord’s remaining arguments
and conclude that they are without merit. For the reasons
discussed above, we dismiss for lack of jurisdiction.
DISMISSED
COSTS
No costs.
