Melvin v. Shulkin

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PAMELA MELVIN,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2017-2041
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-2986, Chief Judge Robert N.
Davis.
______________________
Decided: November 13, 2017
______________________
PAMELA MELVIN, Fayetteville, NC, pro se.
MEEN GEU OH, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., ALLISON
KIDD-MILLER; Y. KEN LEE, LARA K. EILHARDT, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
2 MELVIN v. SHULKIN
______________________
Before PROST, Chief Judge, DYK and CHEN, Circuit Judg-
es.
PER CURIAM.
Pamela Melvin appeals a decision of the United
States Court of Appeals for Veterans Claims (Veterans
Court) denying her request for sanctions against Veterans
Affairs (VA) attorneys. Because we lack jurisdiction to
review the issues Ms. Melvin raises in this appeal, we
dismiss.
I. BACKGROUND
In 2001, Ms. Melvin submitted a service-connected
disability claim for post-traumatic stress disorder (PTSD).
In a decision dated January 6, 2010, the Board of Veter-
ans’ Appeals (the Board) denied the claim. The decision,
however, was mailed to a wrong address. Ms. Melvin did
not receive a copy of the decision until March 6, 2012.
Within the 120-day appeal period, Ms. Melvin submitted
a filing to the Board requesting (1) to vacate the Board’s
decision based on alleged substantive errors and (2) to
vacate the Board’s decision based on a violation of her
procedural due process rights.
On October 11, 2013, Ms. Melvin filed a notice of ap-
peal with the Veterans Court. Because the Board never
reached a final decision on the substantive motion to
vacate, the Veterans Court dismissed the appeal. 1 We
affirmed the Veterans Court’s decision to dismiss the
1 On October 4, 2012, the Board denied Ms. Mel-
vin’s motion to vacate based on procedural due process
violations.
MELVIN v. SHULKIN 3
appeal as premature on December 14, 2015. 2 Melvin v.
McDonald, 634 F. App’x 309 (Fed. Cir. 2015) (per curiam).
While she was litigating that appeal, Ms. Melvin filed
a motion for sanctions against the VA on March 4, 2014,
alleging that VA attorneys had hacked into her personal
computers and altered/deleted her legal materials to
impede her ability to litigate her case. In June and Au-
gust 2016, Ms. Melvin requested the Veterans Court to
reopen her case because it had not decided her request for
sanctions against the VA. The Veterans Court reopened
the case for the limited purpose of ruling on Ms. Melvin’s
motion for sanctions. While the Veterans Court acknowl-
edged Ms. Melvin’s allegations of serious misconduct, it
was unconvinced that she had provided evidence suffi-
cient to support the allegations and demonstrate actual
damages.
Ms. Melvin now appeals the Veterans Court’s denial
of her motion for sanctions. 3
II. DISCUSSION
We have the jurisdiction to “review and decide any
challenge to the validity of any statute or regulation or
any interpretation thereof . . . and to interpret constitu-
tional and statutory provisions, to the extent presented
2 The record does not indicate whether Ms. Melvin
has received a final, appealable decision from the Board.
Assuming that Ms. Melvin has not yet received a final
Board decision, we expect that final decision will issue
soon. See Melvin, 634 F. App’x at 311.
3 We have previously dismissed Ms. Melvin’s ap-
peals for sanctions in related cases arising from similar
allegations of VA misconduct for lack of jurisdiction. See
Melvin v. Shulkin, ___ F. App’x ___, 2017 WL 3526629, at
*2–3 (Fed. Cir. 2017) (per curiam); Melvin v. McDonald,
634 F. App’x at 311.
4 MELVIN v. SHULKIN
and necessary to a decision.” 38 U.S.C. § 7292(c). Our
jurisdiction, however, is limited; we cannot review “a
challenge to a factual determination” or “a challenge to a
law or regulation as applied to the facts of a particular
case.” Id. § 7292(d)(2); see also Bastien v. Shinseki, 599
F.3d 1301, 1306 (Fed. Cir. 2010) (“The evaluation and
weighing of evidence and the drawing of appropriate
inferences from it are factual determinations committed
to the discretion of the fact-finder. We lack jurisdiction to
review those determinations.”).
Ms. Melvin argues that VA attorneys violated her
Fourth Amendment right against unreasonable search
and seizure and her Fifth Amendment due process rights
by unlawfully accessing her computers, deleting her legal
documents, preventing her from typing briefs, and creat-
ing messages on her computer stating that the Veterans
Court cannot provide sanctions. Appellant’s Informal Br.
8–10. 4 She requested the Veterans Court award her with
$2 million in sanctions for the violation of her constitu-
tional right to defend and litigate her case.
While Ms. Melvin contends we have jurisdiction to re-
view her appeal because it presents a constitutional issue,
Ms. Melvin’s request for sanctions—as in her previous
cases for sanctions before us—is a factual question and
thus outside the scope of our jurisdiction. See 38 U.S.C.
§ 7292(d)(2); see also Melvin v. Shulkin, 2017 WL 3526629at *2–3; Melvin v. McDonald, 634 F. App’x at 311
(“Whether sanctions are appropriate [in an appeal from
the Veterans Court] is a factual matter outside the juris-
4 Ms. Melvin also asserts that the Veterans Court is
prohibited by law from requiring her to litigate her mo-
tion for sanctions in a Federal District Court. Appellant
Informal Br. 10. Because the Veterans Court did adjudi-
cate her motion for sanctions, and specifically reopened
her case to do so, the issue is moot.
MELVIN v. SHULKIN 5
diction of this court.”); Malik v. McDonald, 618 F. App’x
1007, 1012 (Fed. Cir. 2015) (per curiam) (noting that the
Veterans Court’s decision not to impose sanctions “is
factual in nature, and thus unreviewable by this court.”).
In other words, because the Veterans Court found that
the record does not support Ms. Melvin’s claim that VA
attorneys unlawfully accessed her computers, Ms. Mel-
vin’s factual challenges on appeal are “constitutional
claims in name only.” See Helfer v. West, 174 F.3d 1332,
1335 (Fed. Cir. 1999) (“[C]haracterization of [a] question
as constitutional in nature does not confer upon us juris-
diction that we otherwise lack.”).
We have considered Ms. Melvin’s remaining argu-
ments, and we find them unpersuasive. For the foregoing
reasons, we dismiss Ms. Melvin’s appeal for lack of juris-
diction.
DISMISSED
COSTS
No costs.