Morgan v. Dept. Of Veterans of Affairs , 428 F. App'x 974 ( 2011 )

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
ALBERT MORGAN, JR.,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7048
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case No. 10-2403, Judge Mary J.
Schoelen.
___________________________
Decided: April 13, 2011
___________________________
ALBERT MORGAN, JR., Little Rock, Arkansas, pro se.
CLAUDIA BURKE, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, Washington, DC, for respondent-appellee.
With her on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, MARTIN F.
HOCKEY, JR., Assistant Director. Of counsel on the brief
MORGAN v. DVA 2
was MICHAEL J. TIMINSKI, Deputy Assistant General
Counsel, United States Department of Veterans Affairs,
of Washington, DC.
__________________________
Before RADER, Chief Judge, PLAGER, and MOORE, Circuit
Judges.
Per Curiam.
Albert Morgan, Jr. appeals from a decision of the U.S.
Court of Appeals for Veterans Claims (Veterans Court),
Morgan v. Shinseki, No. 10-2403 (Vet. App. Sept. 10,
2010), dismissing his petition for extraordinary relief in
the form of a writ of mandamus as moot. For the reasons
discussed below, we dismiss for lack of jurisdiction.
Mr. Morgan is a veteran of the Vietnam War. He
served in the Army from 1969 through 1971. On June 18,
2004, the Department of Veterans Affairs Regional Office
(RO) granted service connection for Mr. Morgan’s sarcoid
granulomatous hepatitis and amended an earlier service-
connected knee condition. The decision also increased Mr.
Morgan’s disability rating and granted him entitlement to
a total rating based upon individual unemployability.
In February 2009, Mr. Morgan filed a statement with
the RO arguing that it had committed clear and unmis-
takable error (CUE) in its determination of an effective
date for his disability. This was followed by a series of
correspondence between the RO and Mr. Morgan. On
April 29, 2009, the RO rejected Mr. Morgan’s CUE claim.
On July 19, 2010, Mr. Morgan filed a petition for ex-
traordinary relief in the form of a writ of mandamus with
the Veterans Court. Mr. Morgan stated that the RO
failed to respond to his CUE allegation for over a year and
requested that the Veterans Court compel the RO to
respond.
3 MORGAN v. DVA
Before considering the petition, the Veterans Court
required the VA to respond to Mr. Morgan’s allegation
that the RO failed to answer his CUE claim. After the VA
filed its response showing that the RO denied the CUE
claim on April 29, 2009, the Veterans Court dismissed Mr.
Morgan’s petition. The Veteran’s Court stated that “a
review of the Secretary’s response and its attachments
reveals that the Secretary has not refused to adjudicate
the petitioner’s claim” and that “the RO engaged in an
exchange of correspondence with the petitioner to best
ascertain the nature of the relief sought.” The Veterans
Court agreed with the VA that the April 29, 2009, deci-
sion by the RO was a response to the CUE claim and that
the appropriate course of action for Mr. Morgan was to file
a Notice of Disagreement with the April 29, 2009 decision.
Thus, under Cheney v. U.S. District Court, 542 U.S. 367,
380-381 (2004), a writ of mandamus was inappropriate
because there existed “adequate alternative means to
attain the desired relief.” The Veterans Court later
denied Mr. Morgan’s request for reconsideration on the
grounds that Mr. Morgan “failed to present any point of
law or fact that the court has overlooked or misunder-
stood.”
Mr. Morgan appeals from the Veterans Court’s deci-
sion, and our jurisdiction is defined under 38 U.S.C.
§ 7292(c). Section 7292 limits our jurisdiction over ap-
peals of Veterans Court decisions. 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 interpreta-
tion thereof (other than a determination as to a factual
matter) that was relied on by the Court in making the
decision.” Id. § 7292(a). However, absent a constitutional
issue, we cannot review factual determinations or “chal-
lenge[s] to a law or regulation as applied to the facts of a
particular case.” Id. § 7292(d)(2).
MORGAN v. DVA 4
This limited jurisdiction extends to our review of the
Veteran’s court dismissal of a petition for a writ of man-
damus. See Lamb v. Principi, 284 F.3d 1378, 1381-82
(Fed. Cir. 2002); see also Gebhart v. Peake, 289 Fed.
Appx. 402, 403 (Fed. Cir. 2008) (non-precedential). A writ
of mandamus is a drastic remedy that should only be
invoked in “extraordinary situations.” Kerr v. U.S. Dist.
Court, 426 U.S. 394, 402 (1976). 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 issuance must
be warranted. Cheney, 542 U.S. at 380-81.
Mr. Morgan argues that the RO’s decision violates, 38
C.F.R. § 4 Diagnostic Code 5003, which relates to “Arthri-
tis, degenerative.” He posits that the RO improperly
considered degenerative arthritis during its evaluation
based on erroneous medical reports. He argues that this
was CUE and a review of the correct reports would result
in an earlier effective date for his disabilities.
We agree with the government that we lack jurisdic-
tion to review Mr. Morgan’s appeal. The Veterans Court
found that the April 29, 2009 letter from the RO was a
response to Mr. Morgan’s CUE claim. Thus, the Veterans
Court denied his petition for a writ of mandamus and
informed him that the proper avenue for appeal was to
file a Notice of Disagreement. This is both a fact-
finding—that the RO timely responded—and an applica-
tion of law to fact—that the writ was improper because
there were alternative appeal routes. We further note
that Mr. Morgan’s underlying arguments regarding the
use of erroneous medical reports in violation of 38 C.F.R.
§ 4 are also factual in nature and would be beyond the
reach of our jurisdiction. Because Mr. Morgan fails to
allege any legal error in this case and we lack jurisdiction
5 MORGAN v. DVA
to review Mr. Morgan’s factual challenges, we must
dismiss Mr. Morgan’s appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.