Winsett v. Shinseki

Note: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHELIA WINSETT,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2012-7180
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-784, Judge Alan G. Lance Sr.
----------------------
SHELIA WINSETT,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7043
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-1572, Judge Robert N. Davis.
2 SHELIA WINSETT v. SHINSEKI
______________________
Decided: July 16, 2013
______________________
SHELIA WINSETT, of Parrish, Alabama, pro se, in ap-
peals Nos. 2012-7180 and 2013-7043.
AMANDA L. TANTUM, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee, in
appeal no. 2012-7180. With her on the brief were STUART
F. DELERY, Assistant Attorney General, JEANNE E.
DAVIDSON, Director, and MARTIN F. HOCKEY, JR., Assis-
tant Director. Of counsel on the brief were DAVID J.
BARRANS, Deputy Assistant General Counsel.
BARBARA E. THOMAS, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee, in
appeal no. 2013-7043. With her on the brief were STUART
F. DELERY, Principal Deputy Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY,
JR., Assistant Director. Of counsel was JOSHUA P. MAYER,
United States Department of Veterans Affairs, of Wash-
ington, DC.
______________________
Before LOURIE, BRYSON, and TARANTO, Circuit Judges.
PER CURIAM.
These two consolidated appeals stem from the long-
running efforts of Shelia Winsett to receive benefits as the
surviving spouse of Gary W. Jacks, a veteran. 1 The
1 Ms. Winsett has filed eight other appeals in this
court relating to her surviving spouse claim. Winsett v.
SHELIA WINSETT v. SHINSEKI 3
couple married in 1969 and lived together until 1977,
when they divorced. Mr. Jacks subsequently died in 1989.
Ms. Winsett claims that, after their divorce, she and Mr.
Jacks reconciled and lived together in a common law
marriage. The appeals currently before us, however,
stray far from her underlying benefits claim.
At issue are two mandamus petitions filed by Ms.
Winsett, both of which were denied by the Court of Ap-
peals for Veterans Claims (“CAVC”) and are now consoli-
dated on appeal. Ms. Winsett filed the appeals after
lodging three successive surviving spouse claims before a
regional office (“RO”) of the Department of Veterans
Affairs (“DVA”), each one initiated before the appeal of
the prior claim had run its course.
I
A
The RO denied Ms. Winsett’s first relevant claim in
2004, finding that she did not qualify as Mr. Jacks’s
surviving spouse. The Board of Veterans’ Appeals af-
firmed that decision in 2005, and the CAVC affirmed the
Shinseki, 397 F. App’x 627 (Fed. Cir. 2010); Winsett v.
Peake, 302 F. App’x 915 (Fed. Cir. 2008); Winsett v. Peake,
283 F. App'x 796 (Fed. Cir. 2008); Winsett v. Nicholson,
174 F. App’x 567 (Fed. Cir. 2006); In re Winsett, 90 F.
App’x 398 (Fed. Cir. 2004); Winsett v. Principi, 341 F.3d
1329 (Fed. Cir. 2003); Winsett v. Principi, 65 F. App’x 301
(Fed. Cir. 2003); and Winsett v. West, 217 F.3d 854 (Fed.
Cir. 1999).
4 SHELIA WINSETT v. SHINSEKI
Board in 2007. This Court affirmed the CAVC in July of
2008. Winsett v. Peake, 283 F. App’x 796 (Fed. Cir. 2008).
By that time, Ms. Winsett had already filed a sec-
ond surviving spouse claim with the RO, which she filed
the day after the Board affirmed the RO’s original deci-
sion. The RO denied that new claim in 2005. Ms. Winsett
then appealed that denial to the Board. On December 21,
2007, the Board determined that she had presented new
and material evidence, and it reopened her case, even
though her original claim was still pending on appeal.
Upon considering the new and material evidence, the
Board affirmed the RO’s denial of her claim. The Board
also denied Ms. Winsett’s motion arguing that its 2005
decision constituted clear and unmistakable error
(“CUE”), because that decision had, by that point, already
been upheld by the CAVC and was therefore not subject
to revision by the Board.
Ms. Winsett appealed the Board’s 2007 decision to
the CAVC, arguing that the Board lacked jurisdiction over
her second claim because her first claim was still pending
on appeal. The court rejected that argument, noting that
the Board has jurisdiction to reopen a case upon submis-
sion of new and material evidence. See 38 U.S.C. § 5108;
38 C.F.R. § 3.156. The court also rejected Ms. Winsett’s
CUE claim as to the Board’s 2005 decision, because that
claim had been finally adjudicated by the CAVC and this
court, and therefore was law of the case. Winsett v.
Shinseki, No. 08-0210, 2010 WL 276193 (Vet. App. Jan.
26, 2010). This court affirmed the CAVC, holding that
“there was no error in allowing [Ms. Winsett’s] claim to be
reopened while the case was on appeal.” Winsett v.
Shinseki, 397 F. App’x 627, 629 (Fed. Cir. 2010). We
further held that we lacked jurisdiction to review the
Board’s determination that she and Mr. Jacks did not
have a common law marriage at the time of Mr. Jacks’s
death. Id.More than a year before this court’s decision on her
second surviving spouse claim, Ms. Winsett filed a third
SHELIA WINSETT v. SHINSEKI 5
such claim with the RO on March 27, 2009. The RO
denied that claim on April 16, 2009. Ms. Winsett then
corresponded with the RO by mail, arguing that the RO
had issued its denial too quickly to have reviewed her
case properly and that the RO lacked jurisdiction to issue
a decision while the denial of her second claim was still on
appeal.
On December 6, 2011, the RO agreed with Ms.
Winsett that it had lacked jurisdiction to issue its denials
of both her January 25, 2005, and March 27, 2009, claims
(her second and third claims, respectively) while she had
an earlier claim pending on appeal. 2 The RO stated that
the denial of the January 2005 claim “was already before
the Board of Veterans’ Appeals before anyone [at the RO]
was aware of the situation.” The Board’s decision, as
affirmed by the CAVC and this court, remained legally
operable. But as to the denial of the March 2009 claim,
the RO did not issue a Statement of the Case and did not
respond to Ms. Winsett’s Notice of Disagreement, thereby
effectively closing her third claim. The RO interpreted
Ms. Winsett’s communication as a request to reopen the
case, and it advised her how she could submit evidence
supporting that request.
B
2 The CAVC noted that it is “unclear” whether the
RO confessed error regarding Ms. Winsett’s second claim,
decided by the Board in 2007, or regarding some other
action it may have taken as to Ms. Winsett’s third claim.
Winsett v. Shinseki, No. 12-784, 2012 WL 1155918, at *1
(Vet. App. Apr. 6, 2012). Because the CAVC did not
decide that issue and the resolution of that question is not
necessary to decide this case, we will assume the RO
confessed error regarding the claim that prompted the
Board’s 2007 decision. The government does not appear
to dispute that characterization.
6 SHELIA WINSETT v. SHINSEKI
On February 17, 2012, Ms. Winsett filed a petition
for a writ of mandamus in the CAVC. Relying on the RO’s
admission that it lacked jurisdiction to decide her second
claim while the first was still on appeal, she asked the
court to declare that the Board had lacked jurisdiction in
December of 2007 to affirm the RO’s ruling. She asserted
that if the Board had waited for this court to rule, it
would have been bound by different facts—namely, the
facts described in a portion of this court’s 2008 opinion
affirming the CAVC. See Winsett, 283 F. App’x at 798.
Ms. Winsett also requested that the CAVC order the
Board to consider her CUE claim.
The CAVC dismissed the petition on April 6, 2012,
explaining that this court had already affirmed the
Board’s decision and had explicitly noted its authority to
reopen a case based on new and material evidence. That
determination was therefore binding on Ms. Winsett.
Moreover, the court held that the Board’s denial of Ms.
Winsett’s CUE claim was proper because that decision
had already been affirmed by the CAVC, and the Board
therefore could not revise its CUE ruling. Ms. Winsett
then took this appeal from the CAVC’s dismissal of her
mandamus petition. In the meantime, Ms. Winsett
submitted a fourth surviving spouse claim to the RO on
April 24, 2012.
On May 9, 2012, a little more than a month after
her first mandamus petition was dismissed, Ms. Winsett
filed a second petition for mandamus in the CAVC. In
that petition she argued that the RO had violated her
rights under the first and fifth amendments to the Consti-
tution by holding that it lacked jurisdiction to process her
appeal from the RO’s April 16, 2009, denial of her third
surviving spouse claim. The CAVC denied that petition
on August 20, 2012. The court held that Ms. Winsett had
provided no plausible basis to conclude that the RO’s
decision regarding its jurisdiction, “even if legally in
error,” violated her constitutional rights. Winsett v.
Shinseki, No. 12-1572, 2012 WL 3554585, at *2 (Vet. App.
SHELIA WINSETT v. SHINSEKI 7
Aug. 20, 2012). The court further ruled that Ms. Winsett
had an alternative avenue to challenge the RO’s deci-
sion—namely, the April 24, 2012, claim to the RO. Ms.
Winsett now appeals from the CAVC’s dismissal of that
mandamus petition as well.
Ms. Winsett has initiated additional proceedings
that bear upon the issues in this case. While her first
mandamus petition was pending before the CAVC, Ms.
Winsett filed a motion before the Board asserting that the
December 21, 2007, Board decision constituted CUE. On
August 22, 2012, the Board denied that motion, noting
that the CAVC had already determined there was no CUE
in the Board’s 2007 decision, and that the Board lacked
authority to revise that ruling. Ms. Winsett has appealed
that decision to the CAVC.
Finally, on August 10, 2012—after the CAVC had
dismissed the first mandamus petition but ten days before
it ruled on her second mandamus petition—Ms. Winsett
filed a third mandamus petition in the CAVC, alleging
numerous errors by the court, the RO, and the Board,
including an allegation that DVA employees had falsified
or destroyed records relating to her various appeals. The
CAVC rejected the petition on November 1, 2012, stating
that Ms. Winsett had exhausted her appellate rights with
respect to the December 21, 2007, Board decisions. Win-
sett v. Shinseki, No. 12-2664, 2012 WL 5360974, at *5
(Vet. App. Nov. 1, 2012). In addition, the court sanctioned
Ms. Winsett for abuse of process; the court stated, “in
light of the voluminous, repetitive, and frivolous filings
received from Ms. Winsett, both in this case and in the
past,” that with certain exceptions she would not be
permitted to file any further pleadings before the CAVC
without moving for permission and paying a filing fee. Id.
at *5-7.
II
On appeal to this court, Ms. Winsett argues that it
was improper for the RO to disclaim jurisdiction over her
8 SHELIA WINSETT v. SHINSEKI
third surviving spouse claim on the ground that the
appeal of her second case was still pending. She points
out that the Board had earlier affirmed the RO’s denial of
her second claim while the first was still pending.
The answer to her argument is that the DVA has
jurisdiction to re-open a case if it is presented with new
and material evidence. “If new and material evidence is
presented or secured with respect to a claim which has
been disallowed, the Secretary shall reopen the claim and
review the former disposition of the claim.” 38 U.S.C.
§ 5108; 38 C.F.R. § 3.156. The reopened claim is a sepa-
rate proceeding that is not tied to the fate of an earlier
claim still on appeal. Sims v. Shinseki, 578 F.3d 1332,
1335 (Fed. Cir. 2009) (“While a request to reopen is not a
new claim for benefits, it is treated as a new matter
distinct from the original claim for VA benefits.”).
The Board in 2007 made a finding of new and ma-
terial evidence with regard to Ms. Winsett’s second claim,
originally brought before the RO in January of 2005. 3
That decision, affirmed by the CAVC and this court,
subsumed and rendered harmless the RO’s initial error in
entertaining the second claim. 4 By contrast, there has
been no finding of new and material evidence as to the
third claim, brought in March of 2009. Without such a
3 Ms. Winsett argues that the Board improperly
converted her CUE claim regarding its 2005 decision into
a submission of new and material evidence, but this
court’s earlier ruling foreclosed any argument that the
Board’s 2005 decision contained CUE. Winsett, 283 F.
App’x 796 (Fed. Cir. 2008).
4 Because the Board did not err in reopening the
case, Ms. Winsett’s argument that she would have caught
the error with the aid of counsel is beside the point. The
RO’s error no longer had any effect after the Board’s
decision was affirmed by the CAVC and this court.
SHELIA WINSETT v. SHINSEKI 9
finding, the RO rightly determined that it could not
disturb the Board’s December 2007 decision, and it closed
the case. See 38 U.S.C. § 7104.
For that reason, Ms. Winsett’s first mandamus pe-
tition is meritless. The Board had jurisdiction to reopen
her January 2005 claim in light of new and material
evidence. In addition, the Board correctly denied her
motion to revive her CUE claim that this court had al-
ready decided on appeal. Winsett v. Shinseki, 397 F.
App’x 627 (Fed. Cir. 2010). Our ruling became the law of
the case and was not subject to further review by the
Board. See Suel v. Sec’y of Health and Human Servs., 192
F.3d 981, 985 (Fed. Cir. 1999). As a result, Ms. Winsett
does not have the clear right to relief from the Board’s
December 2007 decision that is required to invoke the
extraordinary remedy of mandamus. Cheney v. U.S. Dist.
Court for Dist. of Columbia, 542 U.S. 367, 381 (2004). Ms.
Winsett has exhausted her appeals regarding the Board’s
December 2007 decision, and our ruling affirming the
Board’s decision and the CAVC’s judgment is final.
Ms. Winsett argues that a precedential opinion of
the DVA’s General Counsel, VAOPGCPREC 20-94, sug-
gests that the Board lacks jurisdiction to act on any claim
currently on appeal before this court. But that opinion is
inapposite here. It applies only to appeals to this court of
decisions in which the CAVC has remanded a case back to
the Board. While this court hears the appeal, the Board
may not act on the CAVC’s remand. The same is not true
where the Board has itself reopened a case upon finding
new and material evidence. In that situation, the Board
has jurisdiction to reopen and decide that new and sepa-
rate matter. See Sims, 578 F.3d at 1335.
The second mandamus petition fares no better.
The RO’s determination that it could not act on Ms.
Winsett’s March 27, 2009, claim rests on the principle
that the RO may not disturb the Board’s rulings unless a
claimant presents new and material evidence. We lack
jurisdiction to review the factual question whether any
10 SHELIA WINSETT v. SHINSEKI
new and material evidence was presented at that time.
38 U.S.C. § 7292(d)(2). The RO’s jurisdictional determi-
nation did not deprive Ms. Winsett of any constitutional
right or any other clear right that would justify the excep-
tional remedy of mandamus.
Ms. Winsett argues that if the Board had waited to
issue its decision until this court had ruled she could have
submitted a portion of our opinion as evidence showing
that she and Mr. Jacks cohabited. The CAVC was correct
to dismiss that argument. This court’s 2008 opinion
stated that, “according to family and friends,” Ms. Winsett
and Mr. Jacks “cohabited” for some time following their
divorce. Winsett, 283 F. App’x at 798. But that reference
to the record does not constitute a factual finding. The
passage merely describes certain evidence; neither that
passage nor anything else in this court’s opinion consti-
tutes a finding as to whether Mr. Winsett and Mr. Jacks
cohabited.
Moreover, Ms. Winsett also has an alternative fo-
rum to adjudicate her underlying surviving spouse claim:
the April 24, 2012, proceeding she has filed with the RO.
She is free to present any new and material evidence on
the surviving spouse issue that she would have presented
had the RO heard those earlier claims. If she objects to
the RO’s determination, she may appeal to the Board and
then to the CAVC, provided that she abides by the filing
requirements that court has imposed. Relief by writ of
mandamus is plainly inappropriate under these circum-
stances.
III
In support of her various contentions, Ms. Winsett has
made a number of accusations against DVA and judicial
personnel. She accuses the DVA of fabricating records to
suggest that she had appealed the 2009 RO decision to
the Board, supposedly in an attempt to convince the
CAVC to dismiss her mandamus petitions in light of this
imaginary pending appeal. Ms. Winsett does not ade-
SHELIA WINSETT v. SHINSEKI 11
quately support such a serious charge, and the CAVC did
not rely on any alleged pending claim before the Board to
deny her mandamus petitions.
Ms. Winsett also accuses the CAVC of holding ex parte
communications with the DVA and otherwise impugns
the integrity and impartiality of the members of that
court. These unsupported accusations are frivolous. She
further contends that the CAVC’s decision not to assign
her case to a three-judge panel deprived her of due pro-
cess. That argument, too, is baseless. See Arnesen v.
Principi, 300 F.3d 1353, 1360-61 (Fed. Cir. 2002); 38
U.S.C. § 7254(b).
Finally, Ms. Winsett seeks review of the CAVC’s
sanctions order entered as a remedy for her abuse of
process. That order was not even issued when Ms. Win-
sett filed the two mandamus petitions here at issue, so it
is not properly before this court in these appeals.
AFFIRMED