Kidwell v. Dept. Of Veterans Affairs

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
BILLY R. KIDWELL,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7207
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 11-0236, Judge Lawrence B.
Hagel.
__________________________
Decided: April 5, 2012
__________________________
BILLY R. KIDWELL, of Port Charlotte, Florida, pro se.
COURTNEY S. MCNAMARA, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With her on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
and SCOTT D. AUSTIN, Assistant Director. Of counsel on
2 KIDWELL v. SHINSEKI
the brief was MICHAEL J. TIMINSKI, Deputy Assistant
General Counsel, United States Department of Veterans
Affairs, of Washington, DC.
__________________________
PER CURIAM.
Billy R. Kidwell (“Kidwell”) appeals from a decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) denying his petition for a writ of
mandamus seeking an earlier effective date of benefits.
See Kidwell v. Shinseki, No. 11-0236 (Vet. App. May 2,
2011) (“Veterans Court Op.”) aff’d by panel decision
August 15, 2011. Because Kidwell’s appeal raises issues
this court lacks the authority to review, the appeal is
dismissed.
Kidwell first applied for benefits in 1972. Following a
change of the status of his discharge from dishonorable to
honorable, Kidwell ultimately obtained his benefits with
an effective date in 1984. Since the time he was awarded
benefits, Kidwell has waged a long campaign for an
earlier effective date including two previous petitions for
writs of mandamus, both of which were denied, the latter
denial having been affirmed by this court. See Kidwell v.
Nicholson, 162 F. App’x 975 (Fed. Cir. 2006) (unpub-
lished). This appeal arises from Kidwell’s third petition to
the Veterans Court for a writ of mandamus. In his cur-
rent petition, Kidwell argued that the Secretary of Veter-
ans Affairs (“Secretary”) misled the Veterans Court into
denying his previous petition for a writ of mandamus.
Kidwell also sought an order to show cause why the
Secretary should not be held in contempt “for intention-
ally lying” to the Veterans Court. Veterans Court Op. at
4. Kidwell sought further relief relating to a prior district
court action, and requested an order directing the Secre-
tary to comply with the Veterans Claims Assistance Act of
2000.
KIDWELL v. SHINSEKI 3
In denying Kidwell’s petition, the Veterans Court con-
cluded that based on evidence submitted by the Depart-
ment of Veterans Affairs (“VA”), Kidwell was not entitled
to mandamus because he had “largely received the relief
he seeks in this matter.” Veterans Court Op. at 3. Spe-
cifically, the Veterans Court noted that the VA had re-
sponded to Kidwell’s relevant notices of disagreement,
and that Kidwell could have appealed through the proper
channels, i.e., by filing substantive appeals following the
VA’s issuance of relevant statements of the case, but
elected not to do so. Id. The Veterans Court also deter-
mined, based on the evidence submitted by the VA, that
there was no reason to issue a show cause order or take
any action against VA attorneys who had worked on
Kidwell’s claims. Id. at 4. The Veterans Court also
explained that, to the extent Kidwell sought to challenge
prior proceedings in district court, it lacked jurisdiction to
entertain Kidwell’s petition. Id.
On appeal to this court, Kidwell admits that the Vet-
erans Court’s decision did not involve the validity or
interpretation of a statute or regulation. Appellant’s Br.
at 1. Kidwell argues that he has been denied due process
and that the Veterans Court “knowingly encourag[es] the
Subornation of Perjury by VA Attorneys . . . ignores all
Evidence, Exhibits, and even well settled law if the law,
and exhibits expose VA Corruption.” Id. Kidwell also
argues that the Veterans Court failed to decide an issue of
“Collateral Estoppel and Res Judicata” with respect to
previous district court proceedings. Id. Finally, Kidwell
argues that the Veterans Court erred by failing to file “a
massive amount of Indisputable Affidavits, Exhibits, and
Evidence submitted by the Appellant because that evi-
dence exposed massive corruption in this case by VA
attorneys, and the Veterans Court.” Id. at 2.
This Court’s authority to review appeals from the
Veterans Court is limited by statute. 38 U.S.C.
§ 7292(d)(2) states that “[e]xcept to the extent that an
4 KIDWELL v. SHINSEKI
appeal under this chapter presents a constitutional issue,
[this court] may not review (A) a challenge to a factual
determination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case.” Each of
Kidwell’s arguments on appeal would require this court to
find facts or apply law to fact. This court cannot reweigh
the evidence upon which the Veterans Court determined
that no mandamus was warranted, and that no show-
cause order, or other order, should issue. Moreover, this
court cannot reapply the law to the facts surrounding
Kidwell’s prior district court proceedings which led the
Veterans Court to conclude that it lacked jurisdiction over
that aspect of Kidwell’s petition.
While Kidwell also raises “due process” objections to
the Veterans Court’s holding, his constitutional argument
amounts to a contention that the Veterans Court failed to
properly weigh the evidence supporting his petition. See
Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999) (ex-
plaining that to the extent that a veteran “simply put[s] a
‘due process’ label on his contention that he should have
prevailed” and “his claim is constitutional in name only” a
veteran does not raise “a separate constitutional conten-
tion” within this court’s jurisdiction). Further, because
the Veterans Court based its denial of Kidwell’s petition
on the factual determination that Kidwell failed to appeal
the relevant denials of his claims, Kidwell’s allegation
that the Veterans Court improperly excluded “a massive
amount” of evidence neither raises a due process concern
nor has any relevance to the underlying decision. There-
fore, Kidwell’s appeal does not present a constitutional
issue.
Because Kidwell’s appeal raises no issue this court
possesses authority to review, the appeal must be dis-
missed.
DISMISSED