Austin v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PATRICIA ANN AUSTIN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7149, -7150
______________________
Appeals from the United States Court of Appeals for
Veterans Claims in No. 13-991, Chief Judge Bruce E.
Kasold, and No. 13-1488, Judge William Greenberg.
______________________
Decided: February 5, 2014
______________________
PATRICIA ANN AUSTIN, of San Antonio, Texas, pro se.
RUSSELL J. UPTON, 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 STUART F. DELERY, Assistant
Attorney General, BRYANT G. SNEE, Acting Director, and
SCOTT D. AUSTIN, Assistant Director. Of counsel on the
brief were DAVID J. BARRANS, Deputy Assistant General
2 AUSTIN v. SHINSEKI
Counsel and MARTIN J. SENDEK, Attorney, United States
Department of Veterans Affairs, of Washington, DC.
______________________
Before LOURIE, MAYER, and CHEN, Circuit Judges.
PER CURIAM.
Patricia Ann Austin (“Austin”) appeals from the
decisions of the United States Court of Appeals for Veter-
ans Claims (“Veterans Court”) dismissing her notice of
appeal for lack of jurisdiction and denying her petition for
extraordinary relief. See Austin v. Shinseki, No. 13-991,
2013 WL 4400198 (Vet. App. Aug. 13, 2013); Austin v.
Shinseki, No. 13-1488, 2013 WL 3243518 (Vet. App. June
27, 2013). Because the Veterans Court did not err in
dismissing Austin’s claim on the basis that there was no
underlying decision from which to appeal and in denying
her petition for extraordinary relief, we affirm.
BACKGROUND
On April 4, 2013, Austin filed a notice of appeal at the
Veterans Court, indicating that she was appealing a
January 17, 2013 decision of the Board of Veterans’
Appeals (the “Board”). On April 16, 2013, the Secretary
filed a motion to dismiss that appeal, stating that Austin’s
claim for Veterans Administration (“VA”) benefits was
still pending before the VA Regional Office and had not
been certified to the Board, that there was no Board
decision issued to Austin on January 17, 2013, and that
the Veterans Court lacked jurisdiction to consider the
appeal due to the absence of a final Board decision.
On April 26, 2013, Austin filed a self-styled “Appel-
lant’s Petition for Extraordinary Relief” at the Veterans
Court seeking a stay of the dismissal of her appeal “pend-
ing receipt of [the] decision and investigation by the
Secretary at the [Regional Office] level.” Resp’t’s App. at
A14–17. On June 19, 2013, the Veterans Court issued an
AUSTIN v. SHINSEKI 3
order construing Austin’s petition as both a response to
the Secretary’s motion to dismiss and as a petition for
extraordinary relief. Id. at A20 The court noted that the
Secretary’s motion to dismiss stated that no Board deci-
sion had issued on January 17, 2013 and directed Austin
to explain why her appeal should not be dismissed. Id.
On June 27, 2013, the Veterans Court denied Austin’s
petition, which it treated as a writ of mandamus, noting
that extraordinary relief was “not necessary when a
petitioner is merely seeking a stay of a dismissal of an
appeal in a different matter already before the Court.”
Austin, 2013 WL 3243518, at *1. The Veterans Court
found that “nothing further [could] be granted as a result
of this petition” because it had construed the petition as a
response to the Secretary’s motion to dismiss, which it
was still considering. Id. at *1.
On August 13, 2013, the Veterans Court dismissed
Austin’s appeal for lack of jurisdiction because Austin had
“failed to demonstrate that a final Board decision ha[d]
been issued in her case.” Austin, 2013 WL 4400198, at *1.
Austin timely appealed. We have jurisdiction pursuant to
38 U.S.C. § 7292(a).
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Under 38 U.S.C. § 7292(a), a
party may obtain review “with respect to the validity 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 matter) that
was relied on by the Court in making the decision.”
Under § 7292(d)(2), however, absent a constitutional
issue, we “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.” We review legal
determinations of the Veterans Court de novo. Bailey v.
West, 160 F.3d 1360, 1362 (Fed. Cir. 1998).
4 AUSTIN v. SHINSEKI
Austin’s informal brief argues that the Veterans
Court incorrectly dismissed her case and “rendered a
partial decision.” Pet’r’s Br. 1. However, Austin does not
identify any error in the Veterans Court’s finding that
there was no final decision of the Board from which to
appeal. The Veterans Court has jurisdiction to review a
final decision of the Board. See 38 U.S.C. § 7252 (grant-
ing the Veterans Court jurisdiction to review “decisions”
of the Board); 38 U.S.C. § 7266(a) (requiring individuals
seeking review of “a final decision” of the Board to file a
notice of appeal). In dismissing Austin’s appeal, the
Veterans Court’s decision rested solely on its determina-
tion that Austin identified no final decision of the Board
from which she was appealing, thereby failing to satisfy
the requirement of § 7266(a).
Additionally, the Veterans Court did not err in deny-
ing Austin’s petition for extraordinary relief, which it
treated as a writ of mandamus, and construing it as an
answer to the motion to dismiss. A writ of mandamus is
an “extraordinary remedy.” Mukand Int’l, Ltd. v. United
States, 502 F.3d 1366, 1369 (Fed. Cir. 2007). “[T]he party
seeking issuance of the writ must have no other adequate
means to attain the relief he desires—a condition de-
signed to ensure that the writ will not be used as a substi-
tute for the regular appeals process.” Cheney v. U.S. Dist.
Court, 542 U.S. 367, 380–81 (2004). The Veterans Court
was correct in determining that Austin’s then-pending
appeal provided an adequate means to seek the relief
requested in her petition. See Hargrove v. Shinseki, 629
F.3d 1377, 1379 (Fed. Cir. 2011) (affirming Veterans
Court decision denying writ of mandamus because peti-
tioner had adequate alternative means to attain the relief
requested).
Austin further alleges various constitutional and civil
rights violations by VA Regional Offices in her informal
brief. However, the Veterans Court did not address any
constitutional issues in its decision. Without an explana-
AUSTIN v. SHINSEKI 5
tion providing an adequate basis for Austin’s claims, they
are constitutional claims in name only and thus outside of
our jurisdiction. Helfer v. West, 174 F.3d 1332, 1335 (Fed.
Cir. 1999) (finding invocation of a constitutional label
does not establish jurisdiction).
We have considered Austin’s remaining arguments
and conclude that they are without merit. For the forego-
ing reasons, we affirm the decisions of the Veterans Court
dismissing Austin’s appeal for lack of jurisdiction and
denying her petition for extraordinary relief.
AFFIRMED
COSTS
No costs.