Johnson v. Shinseki ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EDDIE JOHNSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7040
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-1722, Judge Lawrence B.
Hagel.
______________________
Decided: December 11, 2013
______________________
EDDIE JOHNSON, Warner Robins, Georgia, pro se.
AUSTIN FULK, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Principal
Deputy Assistant Attorney General, JEANNE E. DAVIDSON,
Director. Of counsel on the brief were DAVID J. BARRANS,
Deputy Assistant General Counsel, and CHRISTINA L.
2 JOHNSON v. SHINSEKI
GREGG, Attorney, United States Department of Veterans
Affairs, of Washington, DC.
______________________
Before NEWMAN, MOORE, and WALLACH, Circuit
Judges.
PER CURIAM
Eddie Johnson appeals the Court of Appeals for
Veterans Claims’ (“Veterans Court”) denial of his petition
for a writ of mandamus in Johnson v. Shinseki, No. 12-
1722 (Vet. App. Nov. 16, 2012). Because the Veterans
Court did not abuse its discretion in denying Mr. John-
son’s petition, this court affirms.
BACKGROUND
In May 2012, Mr. Johnson filed a petition for a writ of
mandamus with the Veterans Court. The petition alleged
that the Department of Veterans Affairs (“VA”) regional
office failed to act on a Notice of Disagreement (“NOD”)
that Mr. Johnson had filed nearly two years earlier. Mr.
Johnson’s contention stemmed from an August 28, 2008,
decision from the Cleveland, Ohio, regional office, denying
Mr. Johnson’s claim for benefits (“the 2008 denial of
benefits”). Mr. Johnson challenged the denial by filing a
NOD (“the first NOD”), which he alleged was postmarked
on August 27, 2009, less than one year after the regional
office’s denial. See 38 U.S.C. § 7105(b) (2006) (“A notice of
disagreement postmarked before the expiration of the
one-year period will be accepted as timely filed.”). The
Cleveland regional office transferred the first NOD to the
Atlanta, Georgia, regional office, which found that the
first NOD was untimely filed and therefore dismissed Mr.
Johnson’s claim.
Less than one year later, on July 15, 2010, Mr. John-
son submitted a second NOD, challenging the finding that
his first NOD was untimely (“the second NOD”). By the
JOHNSON v. SHINSEKI 3
time Mr. Johnson filed his May 2012 petition for a writ of
mandamus in the Veterans Court, nearly two years had
passed since he filed the second NOD.
Among other relief sought from the Veterans Court,
Mr. Johnson requested an order requiring that the re-
gional office: (1) accept his first NOD as timely filed; or, in
the alternative, issue a Statement of the Case in response
to the second NOD; (2) provide Mr. Johnson with a copy of
his records; (3) toll the one-year deadline to file a NOD
disagreeing with the 2008 denial of benefits; and (4)
appoint a decision review officer from the VA central
office. 1
The Veterans Court ordered a response to the peti-
tion. On August 2, 2012, the Secretary responded that
the Atlanta regional office, on July 11, 2012, sent Mr.
Johnson a letter acknowledging receipt of the second
NOD, and advising Mr. Johnson that he could elect to
have his appeal heard by a decision review officer if he
responded to the letter within sixty days. The Secretary
further reported that the regional office sent Mr. Johnson
a copy of his records on July 12, 2012.
On August 20, 2012, the Veterans Court issued an
order denying items three and four of Mr. Johnson’s
requested relief. It found that the regional office had
given Mr. Johnson the opportunity to have his appeal
1 Mr. Johnson’s petition for a writ of mandamus al-
so sought relief from the Veterans Court’s July 1994
decision affirming the denial of disability benefits for
hearing loss and the denial of an increased disability
rating for tinnitus. The Veterans Court assigned a sepa-
rate docket number to this item, to be “addressed in a
separate order.” Respondent’s App. (“App.”) 7. Mr. John-
son does not challenge these separate proceedings in the
instant appeal.
4 JOHNSON v. SHINSEKI
heard by a decision review officer, so Mr. Johnson’s re-
quest for such an appointment was not deserving of
extraordinary relief. Resp’t’s App. (“App.”) 2 (citing Chen-
ey v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380–81 (2004)
(stating that a writ of mandamus is not appropriate
unless “the party seeking issuance of the writ . . . [has] no
other adequate means to attain the relief he desires”)
(internal quotation marks and citation omitted)). Because
the Veterans Court found the regional office had provided
Mr. Johnson with his requested records, it denied that
portion of the petition as well. The Veterans Court “held
in abeyance” the remaining requests for relief. App. 3.
The Veterans Court denied the remaining requests for
relief on October 22, 2012. The court found that on Au-
gust 31, 2012, Mr. Johnson accepted the appointment of a
decision review officer to review the second NOD. The
court held that matters related to the second NOD were
therefore not ripe because the regional office had not
completed its decision-making process.
Mr. Johnson filed this timely appeal.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Pursuant to 38 U.S.C.
§ 7292(a), this court has jurisdiction to review “the validi-
ty of a decision of the [Veterans] Court on a rule of law or
of any statute or regulation . . . or any interpretation
thereof (other than a determination as to a factual mat-
ter) that was relied on by the [Veterans] Court in making
the decision.” Except to the extent that a constitutional
issue is presented, this court may not review “a challenge
to a factual determination,” or “a challenge to a law or
regulation as applied to the facts of a particular case.” 38
U.S.C. § 7292(d)(2)(A)–(B). The Veterans Court’s legal
determinations are reviewed de novo. Cushman v.
Shinseki, 576 F.3d 1290, 1296 (Fed. Cir. 2009).
JOHNSON v. SHINSEKI 5
“A writ of mandamus is an extraordinary remedy.”
Hargrove v. Shinseki, 629 F.3d 1377, 1379 (Fed. Cir.
2011) (internal quotation marks and citation omitted). A
writ is not a substitute for the regular appeal process, and
shall not be issued unless the petitioner has no adequate
alternative means to attain the desired relief; has estab-
lished a clear and indisputable right to the writ; and the
court, in its discretion, considers the writ appropriate
under the circumstances. Cheney, 542 U.S. at 380–81.
The grant or denial of a petition for mandamus is re-
viewed for abuse of discretion. Lamb v. Principi, 284 F.3d
1378, 1384 (Fed. Cir. 2002). A “court by definition abuses
its discretion when it makes an error of law.” Koon v.
United States, 518 U.S. 81, 100 (1996).
On appeal, Mr. Johnson argues that the nearly two-
year delay in responding to his second NOD violated his
right to procedural due process. Appellant’s Br. 2; id. at 3
(“[T]he Secretary’s failure to act constitutes a denial of
procedural due process.”). Mr. Johnson appears to argue
that this alleged constitutional violation requires that
“the petition for a writ of mandamus[ ] should issue.”
Appellant’s Br. 7.
The Due Process Clause of the Fifth Amendment pro-
vides that no individual will be “deprived of life, liberty, or
property, without due process of law.” U.S. Const. amend.
V. Due process includes notice and a fair opportunity to
be heard. Mullane v. Cent. Hanover Bank & Tr. Co., 339
U.S. 306, 313 (1950). A veteran’s “entitlement to benefits
is a property interest protected by the Due Process
Clause.” Cushman, 576 F.3d at 1298. Mr. Johnson may
not be deprived of this interest absent notice and a fair
opportunity to be heard. Despite the almost two-year
delay in responding to Mr. Johnson’s second NOD, the
regional office has now assigned a decision review officer
to review Mr. Johnson’s case. Although disturbing, the
two-year delay by itself does not amount to a violation of
6 JOHNSON v. SHINSEKI
Mr. Johnson’s right to due process. Cf. N.Y. State Nat’l
Org. for Women v. Pataki, 261 F.3d 156, 168 (2d Cir.
2001). In light of the appointment of a decision review
officer to Mr. Johnson’s case, the Veterans Court did not
err in holding that Mr. Johnson had an alternative means
to attain his requested relief. A writ of mandamus is
therefore not warranted. See Cheney, 542 U.S. at 380–81.
Mr. Johnson further argues that the Atlanta regional
office “cannot punish [him] for sending evidence to [the
Cleveland regional office]” instead of directly to Atlanta,
and that it was therefore improper for the Atlanta region-
al office to find that the first NOD was untimely filed.
Appellant’s Br. 4 (citing Jaquay v. Principi, 304 F.3d
1276, 1282–88 (Fed. Cir. 2002); 38 U.S.C. § 7105(b)(1)).
Mr. Johnson provides documentation “generated within
the U.S. Postal Service” that he timely filed his first NOD.
Id. at 1. Mr. Johnson appends: (1) a U.S. Postal Service
Delivery Confirmation Receipt dated August 27, 2009;
and (2) U.S. Postal Service Track & Confirm notice that
an item was delivered on September 1, 2009 in Cleveland,
Ohio. These contentions address the merits of the second
NOD, which is currently under review by the decision
review officer. In the event of an adverse decision, Mr.
Johnson may appeal to the Board of Veterans Appeals,
then to the Veterans Court, and, if necessary, to this
court. See 38 U.S.C. §§ 7104, 7252, 7292; 38 C.F.R. §§
3.2600(f), 19.34 (2013). A petition for a writ of mandamus
is not a substitute for the appeal process, Cheney, 542
U.S. at 380–81, so this argument likewise does not justify
issuance of the writ.
Because Mr. Johnson has an adequate alternative
means to attain his desired relief, the Veterans Court did
JOHNSON v. SHINSEKI 7
not abuse its discretion in denying his petition for a writ
of mandamus. 2 That decision is affirmed.
AFFIRMED
No costs.
2 Also before the panel is Mr. Johnson’s Motion for
Judicial Notice and Leave to File a Supplemental Brief.
Mr. Johnson seeks judicial notice that his request for his
VA records was a Freedom of Information Act (“FOIA”)
claim over which the Veterans Court lacked jurisdiction.
He contends the Veterans Court should have transferred
the case to the appropriate United States District Court.
The attached supplemental brief argues the same. The
motion is denied as moot, because Mr. Johnson has al-
ready been provided with the requested records.