Lаrry E. BELTON, Sr., Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
No. 2012-7150.
United States Court of Appeals, Federal Circuit.
May 13, 2013.
Rehearing and Rehearing En Banc Denied Aug. 22, 2013.
517 F. App‘x 703
Cameron Cohick, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Departmеnt of Justice, of Washington, DC, for respondent-appellee. With him on the brief were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, Martin F. Hockey, Jr., Assistant Director. Of сounsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Joshua P. Mayer, Attorney, United States Department of Veterans Affairs, of Washington, DC, counsel was Cleveland Karrеn.
Before MOORE, BRYSON, and LINN, Circuit Judges.
Larry E. Belton, Sr., (Belton) appeals the decision of the United States Court of Appeals for Veterans Claims (Veterans Court) denying his petition for extraordinary relief in the form of а writ of mandamus. Belton v. Shinseki, No. 12-1077, 2012 WL 1875367 (Vet.App. May 24, 2012). Because Belton fails to raise a non-frivolous legal question as to whether the Veterans Court properly denied the requested writ, this court lacks jurisdiction and dismisses the appeal.
BACKGROUND
Belton‘s petition alleges wrongdoing and conspiracy by personnel of the Department of Veterans Affairs (Department) in denying apportionment benеfits to Belton‘s asserted spouse Cynthia A. Belton; seeks compensation on a claim for vision loss; seeks production of Belton‘s lost original records; and seeks to initiate a Federal Tort Claims Act action for retroactive compensation, retroactive apportionment benefits, and compensatory and punitive damages. The Veterans Court, in remarking that mandamus is to be invoked only in extraordinary situations, cited Cheney v. United States District Court, 542 U.S. 367, 380-81, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004), for the proposition that three conditions must be met for a court to issue a writ: (1) The petitioner must lack adequate alternative means to attain the desired relief, thus ensuring that the writ is not used as a substitute for an appeal; (2) the petitioner must demonstrate a clear and indisрutable right to the writ; and (3) the Court must be convinced, given the circumstances, that the issuance of the writ is warranted. 2012 WL 1875367, at *1 (internal quotation marks omitted). The Veterans Court determined that Belton did nоt meet these requirements and so denied the petition.
DISCUSSION
Belton first contends that the Veterans Court‘s decision rests on a flawed determination of the validity or interpretation of а statute or regulation. Belton next asserts multiple constitutional violations, including discrimination based on race and a denial of due process and equal protection in fаiling to apportion benefits to Cynthia A. Belton. Belton also contends that the Vet
The government argues that this court lacks jurisdiction over this appeal, or in the alternative that the court should affirm the decisiоn of the Veterans Court. The government argues that the Veterans Court‘s decision on the petition did not involve the validity or interpretation of any statute, regulation, or rule of law; аnd that Belton did not assert that any statute or regulation is invalid or requires interpretation. Instead, the government argues that the Veterans Court applied the law to the facts of Bеlton‘s case, and that Belton merely disputes the application of the law to the facts of his case. The government also argues that the Veterans Court did not and did not neеd to decide any constitutional issues, and that Belton does not raise any constitutional issues. The government asserts that merely because Belton characterized some issuеs as constitutional does not make them constitutional and that Belton‘s basis for alleging discrimination—the denial of his petition—is insufficient. The government argues that the allegations of bias on the part of the Veterans Court and wrongdoing and conspiracy by Department employees do not involve the validity or interpretation of a statute or regulation аnd do not present a constitutional issue. The government also argues that Belton‘s request for damages and allegations of misconduct are outside of the jurisdiction of the Veterans Court.
The government argues that Belton had his opportunity to and did challenge the decision in the earlier appeal, and that it is not appropriate to address thаt appeal in this case. The government further argues that Belton did not meet the requirements for the issuance of a writ and that Belton had an administrative alternative for relief, suсh as filing a motion for CUE.
This court‘s jurisdiction to review a decision on a mandamus petition is limited to the consideration of non-frivolous legal questions that bear on the availability of thе extraordinary remedy of a writ under the All Writs Act,
The Veterans Court, in a thorough and detailed analysis, considered all of Belton‘s arguments and concluded that Belton had failed to make the necessary showing under Cheney. In this appeal, Belton raises no non-frivolous ground upon which this court could conclude that the Veterans Court legally erred in denying the writ. Belton identifies no genuine question of statutory or regulatory interpretation or validity. See Beasley, 709 F.3d at 1158 & n. 2 (contrasting Beasley‘s presentation of
We have considered all of the individual issues Belton raises, and conclude that none of them amount to a non-frivolous showing of legal error on the part of the Veterans Court in denying the writ. As to the court‘s decision in an earlier appeal, Belton had the opportunity then and did challenge this court‘s decisiоn in that case. This court will not revisit that case again. Belton asserts no non-frivolous basis for a claim of bias or malice on the part of the Veterans Court. Belton provides nо legal basis to consider damages or wrongdoing by attorneys and Department staff to be subject to the Veterans Court‘s jurisdiction in this case. Belton also did not demonstrate that the Veterans Court legally erred in denying the writ for the production of his original medical records. None of these issues presents a non-frivolous legal question to support this court‘s exercise of jurisdiction over the Veterans Court‘s denial of the writ. Finally, to the extent Belton argues for a different outcome as to the apportionment of benefits for Cynthia A. Belton and as to the vision loss claim, these are matters of fact or applications of law to fact over which this court lacks authority to review.
For the foregoing reasons, this court dismisses the appeal for lack of jurisdiction.
DISMISSED
Costs
Each party shall bear its own costs.