Gebhart v. Shinseki , 379 F. App'x 993 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
OLIVER C. GEBHART
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7050
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-2476, Judge Alan G.
Lance, Sr.
____________________________
Decided: June 11, 2010
____________________________
OLIVER C. GEBHART, of Oregon, Missouri, pro se.
ALEX P. HONTOS, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and TODD M.
HUGHES, Deputy Director. Of counsel on the brief were
GEBHART v. DVA 2
DAVID J. BARRANS, Deputy Assistant General Counsel,
and TRACEY P. WARREN, Attorney, United States Depart-
ment of Veterans Affairs, Office of the General Counsel,
Washington, DC.
__________________________
Before LOURIE, LINN, and DYK, Circuit Judges.
PER CURIAM.
Oliver Gebhart appeals from the decision of the
United States Court of Appeals for Veterans Claims (“the
Veterans Court”) dismissing for lack of jurisdiction his
petition for the extraordinary relief of a writ of manda-
mus. Gebhart v. Shinseki, No. 09-2476 (Vet. App. Nov.
30, 2009). Because Gebhart has not shown the Veterans
Court to have erred in its conclusion, we affirm.
BACKGROUND
Gebhart filed a petition for extraordinary relief in the
form of a writ of mandamus at the Veterans Court in
June 2009. The petition referred to the Board of Veter-
ans’ Appeals’ (“the Board’s”) “fail[ure] to recognize the
receipt of Dpt. Of Veterans Affairs payment voucher from
the WACO/AUSTIN, TX, DVA Processing Center of the
Financial Management Service of the Philadelphia Finan-
cial Center.” Gebhart argued that “[i]njunctive relief can
be used resolving and reconciling the unceasing use of a
Remand Order.”
In response to an order from the Veterans Court that
he produce a copy of the contested Board decision,
Gebhart filed a single page of a decision. That page
appears to be a remand to the regional office on a claim
for service connection for a heart disorder based on “the
above development.” There is no date on the excerpted
3 GEBHART v. DVA
page; however, it does state that the “claim must be
afforded expeditious treatment.”
The Veterans Court first determined that Gebhart
“fail[ed] to satisfy any of the criteria governing the grant
of a writ of mandamus.” The court then continued that,
because it could not discern what relief Gebhart sought, it
was “unable to discern whether issuance of the writ would
aid in its prospective jurisdiction and, as a result, must
hold that it is without jurisdiction to entertain the peti-
tion.”
Gebhart timely appealed to this court. His initial
brief was rejected for failure to comply with the court
rules. A corrected brief was filed after the government
had filed its response. A brief titled “Supplemental Mer-
its Briefs [sic] pro se et en banc” attaching information
relating to a criminal case against the manufacturers of
certain defibrillators was considered to be Gebhart’s reply
brief. We have reviewed all of these documents. Our
jurisdiction in appeals from the Veterans Court rests on
38 U.S.C. § 7292.
DISCUSSION
The scope of our review of a Veterans Court decision
is limited by statute. See 38 U.S.C. § 7292. Under section
7292(a), we may review a decision by the Veterans Court
with respect to the validity of “any statute or regulation . .
. or any interpretation thereof (other than a determina-
tion as to a factual matter) that was relied on by the
[Veterans] Court in making the decision.” Absent a
constitutional issue, we may not review challenges to
factual determinations or challenges to the application of
a law or regulation to facts. Id. § 7292(d)(2).
We review legal determinations without deference.
See Bingham v. Nicholson, 421 F.3d 1346, 1348 (Fed. Cir.
GEBHART v. DVA 4
2005). A determination as to the jurisdiction of the Vet-
erans Court is legal in nature. See Maggitt v. West, 202
F.3d 1370, 1374 (Fed. Cir. 2000). The denial of a petition
for a writ of mandamus is reviewed for an abuse of discre-
tion. Lamb v. Principi, 284 F.3d 1378, 1382 (Fed. Cir.
2002).
Gebhart does not state the basis for his appeal of the
Veterans Court decision dismissing his petition for man-
damus for lack of jurisdiction. 1 Rather, Gebhart appears
to be challenging an underlying remand order issued by
the Board to determine service connection. Gebhart also
appears to challenge the assignment of two different
docket numbers to his two previous appeals to the Veter-
ans Court, “in effect double jeopardizing the Veteran.”
However, neither of these issues is properly before us, and
we address them only insofar as they relate to the dis-
missal by the Veterans Court for a lack of jurisdiction.
The government argues that the Veterans Court cor-
rectly found that Gebhart failed to satisfy the criteria
governing the grant of a writ of mandamus. Specifically,
the government argues that Gebhart did not (1) show that
he lacked adequate alternative means to attain the de-
sired relief, thus ensuring that the writ is not used as a
substitute for the appeals process; (2) demonstrate a clear
and indisputable right to the writ; and (3) convince the
1 Gebhart similarly did not address the decision of
the Veterans Court in either of his two previous appeals
of Veterans Court decisions dismissing and denying his
two previous petitions for mandamus, respectively. See
Gebhart v. Peake, No. 08-7037 (Fed. Cir. 2008) (“Gebhart
does not address the decision of the Veterans Court
denying his petition for mandamus.”); Gebhart v. Nichol-
son, 154 Fed. App’x 207, 209 (Fed. Cir. 2005) (“Gebhart
does not address the decision of the Veterans Court or
reference his petition.”).
5 GEBHART v. DVA
court that the issuance of a writ is warranted, given the
circumstance. See, e.g., Cheney v. U.S. Dist. Ct. D.C., 542
U.S. 367, 380-81 (2004). The government styles the
decision of the Veterans Court as a denial of Gebhart’s
petition for mandamus, and argues that such denial was
well within the discretion of the court. However, the
decision appealed was a dismissal for lack of jurisdiction
and that is the decision we now review.
We hold that the Veterans Court permissibly found
that it lacked jurisdiction. The Veterans Court has au-
thority to issue extraordinary writs under the All Writs
Act in aid of its potential jurisdiction. See 28 U.S.C. §
1651(a). However, the court “lacks appellate jurisdiction
over any issue that cannot be the subject of a Board [of
Veterans Appeals] decision.” Gebhart v. Nicholson, 154
Fed. App’x 207, 209 (Fed. Cir. 2005) (nonprecedential)
(quoting Yi v. Principi, 15 Vet. App. 265, 267 (2001)).
Here, the court was unable to determine the factual bases
for jurisdiction because it was unclear what decision was
being petitioned from and on what basis, despite a re-
quest for a copy of the decision. As a result, the court
determined it was unable to conclude that any writ it
might grant would be “in aid of its jurisdiction.” We have
received no argument that the court erred in this finding,
nor is there anything in the record to the contrary.
Finally, we hasten to note for the benefit of this pro se
veteran, that in view of the Board’s remand for the re-
gional office to determine possible service connection for a
heart disorder, Gebhart presently fails to satisfy the
criterion for mandamus that he lacks any other avenue of
relief.
GEBHART v. DVA 6
Accordingly, we affirm the decision of the Veterans
Court dismissing Gebhart’s petition for mandamus relief
for lack of jurisdiction.
AFFIRMED