Smith v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KEVIN D. SMITH,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7133
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-0983, Judge Margaret C.
Bartley.
______________________
Decided: December 11, 2013
______________________
KEVIN D. SMITH, of Baton Rouge, Louisiana, pro se.
SCOTT R. DAMELIN, Trial Attorney, Commercial Liti-
gation 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, JEANNE E. DAVIDSON, Director, and
MARTIN F. HOCKEY, JR., Assistant Director. Of counsel on
the brief were MICHAEL J. TIMINSKI, Deputy Assistant
General Counsel, and TRACEY PARKER WARREN, Attorney,
2 SMITH v. SHINSEKI
United States Department of Veterans Affairs, of Wash-
ington, DC.
______________________
Before RADER, Chief Judge, MOORE, and REYNA, Circuit
Judges.
PER CURIAM
Kevin D. Smith appeals the final decision of the Unit-
ed States Court of Appeals for Veterans Claims (“Veter-
ans Court”), which denied his Petition for Writ of
Mandamus. Mr. Smith’s appeal raises no questions of law
but invites us to review the factual determinations of the
Veterans Court, we find that we lack jurisdiction and
dismiss accordingly.
BACKGROUND
Mr. Smith is a veteran who has sought entitlement to
benefits with the Department of Veterans Affairs (“VA”)
for disabilities connected to active service. On April 1,
2013, Mr. Smith filed before the Veterans Court a pro se
Petition for Writ of Mandamus requesting that the VA be
directed to hasten the adjudication process of his claims.
Specifically, Mr. Smith alleged unreasonable delay in
processing: (1) his claims for service connection for left hip
and knee conditions, which the Board of Veterans Appeals
had remanded to the VA regional office in June 2011; (2)
his appeal of a January 2012 VA decision assigning the
effective date for service connection for a left ankle condi-
tion; and (3) his appeal of a March 2012 VA decision
denying his entitlement to a total disability rating based
on individual unemployability, as well as denial for spe-
cially adapted housing, and automobile and adaptive
equipment. Smith v. Shinseki, No. 13-0983, 2013 WL
3577922, at *1 (Vet. App. July 12, 2013).
On May 8, 2013, the Veterans Court requested that
the Secretary of Veterans Affairs (“Secretary”) respond to
SMITH v. SHINSEKI 3
Mr. Smith’s Petition for Writ of Mandamus. Upon review
of the Secretary’s response, the Veterans Court denied
Mr. Smith’s petition. Smith, 2013 WL 3577922, at * 2.
Mr. Smith appeals the denial to this Court.
In denying the petition, the Veterans Court noted that
mandamus is a drastic remedy “to be invoked only in
extraordinary situations.” Smith, 2013 WL 3577922, at *
1 (quoting Kerr v. United States District Court, 426 U.S.
394, 402 (1976)). Accordingly, “[w]hen delay is alleged as
the basis for a petition, the petitioner must demonstrate
that the alleged delay is so extraordinary, given the
demands on and the resources of the Secretary, that it is
equivalent to an arbitrary refusal by the Secretary to act.”
Id. (citing Costanza v. West, 12 Vet. App. 133, 134 (1999)
(per curiam)). The Veterans Court determined that the
Secretary’s response established the VA was in the pro-
cess of adjudicating Mr. Smith’s claims, and that the
circumstances did not equate to an arbitrary refusal to
act. Id.On July 24, 2013, Mr. Smith filed a Motion for Recon-
sideration of the Veterans Court’s decision, asserting that
a lapse of thirty days with no response by the Secretary to
the initial petition, and no further decision on his claims,
constituted an arbitrary refusal to act by the Secretary.
He further contended that the Veterans Court should
order the Secretary to grant all his claims.
The Veterans Court denied the Motion for Reconsid-
eration on the grounds that its rules required that a
motion for reconsideration “shall state the points of law or
fact that the party believes the [Veterans] Court has
overlooked or misunderstood.” U.S. Vet. App. R. 35(e).
The Veterans Court found that Mr. Smith did not “state
any point of law or fact that he believes the Veterans
Court overlooked or misunderstood in its July 12, 2013
order.” Moreover, the Veterans Court concluded that Mr.
4 SMITH v. SHINSEKI
Smith failed to demonstrate that the grant of an exten-
sion of time for the Secretary to respond to Mr. Smith’s
initial petition “affected the timing or the merits of the
VA’s adjudication of his claims.” Id.Mr. Smith appeals the Veterans Court decision to this
Court arguing that the Veterans Court improperly denied
his petition for a writ.
DISCUSSION
This Court’s review of Veterans Court decisions is lim-
ited by statute. See Coleman v. Shinseki, 480 F. App’x
583, 585 (Fed. Cir. 2012) (per curiam). We may review
“the validity of a decision of the [Veterans] Court on a rule
of law or of any statute or regulation . . . or any interpre-
tation thereof (other than the determination as to a
factual matter) that was relied on by the Court in making
the decision.” 38 U.S.C. § 7292(a). This Court “shall
decide all relevant questions of law, including interpret-
ing constitutional and statutory provisions.” 38 U.S.C. §
7292(d)(1). We “shall hold unlawful and set aside any
regulation or any interpretation thereof (other than a
determination as to a factual matter) that was relied upon
in the decision Court of Appeals for Veterans Claims” that
we find to be:
(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (B) contrary
to constitutional right, power, privilege, or im-
munity; (C) in excess of statutory jurisdiction, au-
thority, or limitations, or in violation of a
statutory right; or (D) without observance of pro-
cedure required by law.
38 U.S.C. § 7292(d)(1). The statute makes clear that,
except to the extent an appeal presents a constitutional
issue, we may not review a challenge to a factual deter-
SMITH v. SHINSEKI 5
mination, or a challenge to a law or regulation as applied
to the facts of a particular case. 38 U.S.C. § 7292(d)(2).
This Court has jurisdiction over legal questions raised
in an appeal that challenges the Veterans Court’s denial
of a petition for a writ of mandamus. Lamb v. Principi,
284 F.3d 1378, 1381-82 (Fed. Cir. 2002) (holding that the
Federal Circuit has jurisdiction to review the Veterans
Court’s denial of mandamus petitions). This Court does
not have jurisdiction where the appeal is based solely on
factual issues. See Gebhart v. Peake, 289 F. App’x 402
(Fed. Cir. 2008), Morgan v. Shinseki, 428 F. App’x 974
(Fed. Cir. 2011).
This appeal presents circumstances similar to those in
Gebhart and Morgan. Mr. Smith appeals a decision by
the Veterans Court that strictly involves factual findings.
Nowhere does Mr. Smith allege that the Veterans Court
improperly interpreted a regulation, statute, or errone-
ously applied the mandamus doctrine. Rather, the thrust
of Mr. Smith’s argument is that the Veterans Court’s
factual determinations, in light of the Secretary’s re-
sponse, were erroneous. Because Mr. Smith’s appeal
presents purely factual issues, we do not have jurisdiction
to consider the Veterans Court’s decision.
Mr. Smith also argues that his “right to a fair trial”
under the Constitution was violated by the Veterans
Court in denying his petition. This characterization of a
factual issue “as constitutional in nature does not confer
upon us jurisdiction that we otherwise lack.” Flores v.
Nicholson, 476 F.3d 1379, 1382 (Fed. Cir. 2007) (quoting
Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999)). In
Flores, we held that, despite appellant’s attempt to char-
acterize the issue as based on equal protection, we lacked
jurisdiction because the appeal was aimed at the factual
merits of the Veterans Court’s decision. Id. at 1382.
Similarly, in this case, Mr. Smith fails to raise constitu-
6 SMITH v. SHINSEKI
tional questions decided by the Veterans Court. See id;
accord Belton v. Shinseki, 524 F. App’x 703, 706 (Fed. Cir.
2013) (“[w]hile [petitioner] asserts violations of his consti-
tutional rights, the Veterans Court’s decision did not
decide any constitutional issues, and [petitioner]’s charac-
terization of his arguments as constitutional does not
make them so.”)
CONCLUSION
Based on the foregoing, we dismiss Mr. Smith’s ap-
peal for lack of jurisdiction.
DISMISSED
COSTS
Each side shall bear its own costs.