Philippeaux v. McDonald , 657 F. App'x 968 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EDDY JEAN PHILIPPEAUX,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-1758
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-3361, Judge Lawrence B.
Hagel.
______________________
Decided: August 9, 2016
______________________
EDDY JEAN PHILIPPEAUX, Los Angeles, CA, pro se.
TANYA KOENIG, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., MARTIN
F. HOCKEY, JR.; Y. KEN LEE, BRANDON A. JONAS, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
2 PHILIPPEAUX v. MCDONALD
______________________
Before O’MALLEY, WALLACH, and TARANTO, Circuit
Judges.
PER CURIAM.
Appellant Eddy J. Philippeaux (“Philippeaux”) ap-
peals the final decision of the United States Court of
Appeals for Veterans Claims (“Veterans Court”) (1) dis-
missing his petition for writ of mandamus as moot, and
(2) denying his motions for revision of several regional
office decisions. Philippeaux v. McDonald, No. 15-3361,
2016 U.S. App. Vet. Claims LEXIS 195, *11-12 (Vet. App.
Feb. 17, 2016). His underlying claims are to benefits for a
psychiatric disorder and traumatic brain injury (“TBI”).
We affirm.
BACKGROUND
Philippeaux served on active duty in the Navy from
1972 to 1980 and in the Air Force from 1984 to 1985.
Philippeaux first filed a claim for service connection for a
nervous condition on February 27, 1995. His claim was
denied due to lack of evidence supporting a claim that the
condition manifested itself during active military service.
Philippeaux filed a Notice of Disagreement (“NOD”) to
that decision on February 26, 1997. A second rating
decision on July 30, 1997 again denied Philippeaux’s
claim for benefits for a nervous condition. Philippeaux
did not appeal that decision, which became final. On July
1, 2008, Philippeaux filed another claim for a psychiatric
condition—this time, phrased as a “psychotic disorder.”
On April 22, 2011, after considering a plethora of state-
ments in support of claim and treatment records, the U.S.
Department of Veterans Affairs (“VA”) issued a rating
decision granting service connection for a psychiatric
disorder with an 100% evaluation and an effective date of
July 1, 2008.
PHILIPPEAUX v. MCDONALD 3
Philippeaux then sought an earlier effective date for
his psychiatric disorder. On July 6, 2015, the RO certified
for appeal the issue of entitlement to an earlier effective
date for the psychiatric disorder to the Board of Veterans’
Appeals (the “Board”). The Board notified Mr.
Philippeaux that it had formally docketed his appeal by a
letter dated August 24, 2015.
Concurrently with his appeals, Philippeaux requested
revisions of the February and July 1997 decisions and the
April 2011 decision, on the ground that the effective date
of July 1, 2008 was a clear and unmistakable error
(“CUE”). In a February 4, 2015 rating decision, the VA
determined that there was no CUE. The VA reiterated its
decision in rating decisions issued in October and Novem-
ber of 2015.
In a December 2015 rating decision on the same claim
to an earlier effective date, however, the VA found for the
first time that the July 30, 1997 decision could not sub-
sume the NOD that Philippeaux had filed on February 26,
1997. The VA found, therefore, that an appeal from the
February 27, 1995 decision had been pending ever since.
Because subsequent decisions granted service connection
for the psychiatric disorder, the VA granted Philippeaux
an effective date of February 27, 1995, his original filing
date. But based upon a VA examination from 1996 and
the overall evidentiary record, the VA assigned a 50%
disability rating for the pre-July 2008 period.
Philippeaux filed a NOD with the VA’s decision, seeking a
100% rating going back to 1995.
Philippeaux separately filed a claim for TBI, which
was denied on May 25, 2010. In response, Philippeaux
filed a NOD, which prompted additional examinations
and statements of the case. Most recently, on March 3,
2015, the VA issued a Supplemental Statement of the
Case (“SSOC”) denying TBI, stating that a VA examina-
tion conducted in February 2015 showed no TBI. On July
4 PHILIPPEAUX v. MCDONALD
6, 2015, the VA certified the issue of service connection for
TBI to the Board. In August 2015, the Board acknowl-
edged that the TBI claim was under appeal.
On September 2, 2015, Philippeaux petitioned the
Veterans Court for a writ of mandamus. Philippeaux’s
petition asked the court, inter alia, to (1) compel the
Board to certify his appeal of his claims for an earlier
effective date for his psychiatric disorder and his claim for
service connection for TBI; and (2) to compel the Secretary
to make determinations on his motions for revision of the
February 1997, July 1997, and April 2011 rating decisions
on the basis of CUE.
The Veterans Court dismissed Philippeaux’s petition
for writ of mandamus as moot. The court also rejected
Philippeaux’s motions for revision of his February 1997,
July 1997, and April 2011 rating decisions on the basis of
CUE. Philippeaux now appeals the Veterans Court’s
decision.
DISCUSSION
Our jurisdiction over appeals from the Veterans Court
is limited by statute. See 38 U.S.C. § 7292(d)(1). Absent
a constitutional issue, we review only questions of law
and lack jurisdiction to review factual determinations or
the application of law to the particular facts of an appeal
from the Veterans Court. See 38 U.S.C. § 7292(d)(2).
“This limited jurisdiction extends to our review of the
Veteran’s court dismissal of a petition for a writ of man-
damus.” Morgan v. Shinseki, 428 F. App’x 974, 975 (Fed.
Cir. 2011) (citing Lamb v. Principi, 284 F.3d 1378, 1381-
82 (Fed. Cir. 2002); Gebhart v. Peake, 289 F. App’x. 402,
403 (Fed. Cir. 2008)).
The Veterans Court has the authority to issue ex-
traordinary writs in aid of its jurisdiction pursuant to the
All Writs Act, 28 U.S.C. § 1651(a). See Cox v. West, 149
F.3d 1360, 1363–64 (Fed. Cir. 1998). But “[t]he remedy of
PHILIPPEAUX v. MCDONALD 5
mandamus is a drastic one, to be invoked only in extraor-
dinary situations.” Kerr v. U.S. Dist. Ct. for N. Dist. of
Cal., 426 U.S. 394, 402 (1976) (citations omitted). Three
conditions must be met for a court to issue a writ: 1) there
must be a lack of alternative means for review, 2) there
must be a clear and undisputable right to the writ, and 3)
the court must be convinced, given the circumstances,
that issuance of a writ is warranted. Jackson v. McDon-
ald, 606 Fed. Appx. 999, 1001, No. 2015-7008, 2015 U.S.
App. LEXIS 5926, *5 (Fed. Cir. 2015) (citing Cheney v.
U.S. Dist. Ct. for D.C., 542 U.S. 367, 380-81 (2004)).
Philippeaux does not argue that the Veterans Court
misinterpreted this legal standard and, in fact, does not
mention his request for a writ of mandamus in his infor-
mal brief, even though the writ was the subject of the
decision on appeal. To the extent Philippeaux’s recitation
of various legal provisions constitute arguments pertain-
ing to the writ, however, we find, in any event, that the
Veterans Court properly dismissed Philippeaux’s petition
for a writ of mandamus as moot. See Philippeaux, 2016
U.S. App. Vet. Claims LEXIS 195, at *8. Philippeaux has
not demonstrated that any delay on the part of the VA
was so extraordinary as to rise to the level of refusal to
act. Instead, the record shows that the Board has recent-
ly acted on his claims by confirming in August 2015 that
his appeal regarding the VA’s denial of his claims for
benefits for TBI and for an earlier effective date for his
psychiatric disorder is pending. The October 2015 VA
rating decision on Philippeaux’s claims also noted that
“the issue of entitlement to service connection for trau-
matic brain injury remains under appeal.” Joint Appen-
dix (“J.A.”) 24. The court’s dismissal of the petition was,
therefore, proper.
We also discern no arguments from Philippeaux re-
garding the portion of the Veterans Court’s decision
denying his motions for revision of the February 1997,
July 1997, and April 2011 rating decisions on the basis of
6 PHILIPPEAUX v. MCDONALD
CUE. In any event, no CUE can be alleged because TBI
was not a subject of those decisions. Further, the April
2011 decision cannot be the subject of a motion for revi-
sion on the basis of CUE because it is currently pending
appeal before the Board. With respect to Philippeaux’s
psychiatric disorder and the 1997 rating decisions, the
Secretary addressed Philippeaux’s motions to revise the
effective date of benefits. Specifically, the December 2015
decision awarded Philippeaux an effective date of Febru-
ary 27, 1995 with a 50% rating between then and July 1,
2008.
Philippeaux’s informal brief alleges that the Veterans
Court misinterpreted 38 U.S.C. § 7261 when he was
denied benefits. Because Mr. Philippeaux does not specif-
ically allege how the Veterans Court misinterpreted the
scope of review statute and it is not apparent from the
court’s decision, we do not consider the allegation further.
Philippeaux also alleges constitutional violations in
his brief. He indicates that he was denied constitutional
rights for twenty years due to cover-up schemes by VA
personnel and the denial of his rights to the Veterans
Judicial Review Act appeal process. He further argues
that the VA violated his Fifth Amendment rights to due
process and equal protection when it denied him benefits
and denied him access to the VA appeal process. Finally,
Philippeaux argues that the VA violated his Fifth
Amendment rights to due process and equal protection
when Congress failed to provide an exception to 38
U.S.C. § 5110. “Absent an explanation providing an
adequate basis for [a veteran’s] claims, mere assertions of
constitutional violations cannot invoke [the Court’s]
jurisdiction.” Payne v. McDonald, 587 Fed. App’x 649, 651
(Fed. Cir. 2014) (citing Helfer v. West, 174 F.3d 1332,
1335-36 (Fed. Cir. 1999)). Because Philippeaux has made
only vague and unsubstantiated assertions of Constitu-
tional violations without support, we lack jurisdiction
over such claims.
PHILIPPEAUX v. MCDONALD 7
We have considered Philippeaux’s remaining argu-
ments and have found them to be without merit.
CONCLUSION
The decision of the Veterans Court dismissing his pe-
tition as moot and denying his CUE motions is, therefore,
affirmed. We do not have jurisdiction over Philippeaux’s
remaining claims, and, therefore, do not pass on the
merits of those claims.
AFFIRMED