Davis v. Shinseki , 409 F. App'x 323 ( 2010 )

NOTE: This order is nonprecedential.
Wniteb $>tate~ (!Court of ~peaI~
for !be jfeberaI (!Circuit
ROBERT R. DAVIS, JR.,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
2010-7030
Appeal from the United States Court of Appeals for
Veterans Claims in 09-2984, Judge Robert N. Davis.
ON MOTION
Before LINN, DYK, and PROST, Circuit Judges.
PER CURIAM.
ORDER
The Secretary of Veterans Affairs move~ to waive the
requirements of Fed. Cir. R. 27(f) and dismiss for lack of
jurisdiction Robert R. Davis, Jr.'s appeal from a decision
of the United States Court of Appeals for Veterans Claims
that denied a petition for a writ of mandamus seeking to
DAVISv. DVA 2
compel the Chicago, Illinois Department of Veterans
Affairs regional office (RO) to (1) notify Davis of the status
of a pending attorney fees dispute, and (2) forward his
appeal of the August 19, 2008, rating decision to the
Board of Veterans' Appeals (Board). Davis moves "to
submit additional evidence of denial of due process rights
by the DVA."
Davis served honorably in the United States Air Force
from March 1961 to May 1965, including service in Viet-
nam. In April 2007, Davis entered into a fee agreement
with Daniel Krasnegor and his law firm for representa-
tion before the agency in pursuit of a claim for disability
compensation for post-traumatic stress disorder (PTSD).
On August 7, 2008, the Board granted Davis entitlement
to service connection for PTSD and remanded the matter
to the RO for assignment of a disability rating and effec-
tive date.
On remand, the RO assigned Davis's claim a 50% dis-
ability award rating and an effective date of May 14,
1993. Davis began to receive compensation benefits.
However, a portion of the retroactive benefit award was
withheld by the RO pursuant to an attorney fees dispute
currently pending before the agency with regard to Kras-
negor's prior representation of Davis. In March 2009,
Davis also sought review of the RO's determination from a
decision review officer (DRO), seeking an earlier effective
date and a total disability rating based on individual
unemployability (TDIU). Both the attorney fees dispute
and the DRO review appear to remain pending before the
agency.
On August 11, 2009, Davis petitioned- the Court of
Appeals for Veterans Claims for a writ of mandamus
seeking to compel the RO to take action on the attorney
fees dispute and to compel the RO to forward his dispute
regarding his disability compensation award to the Board.
In response to the petition, the Secretary informed the
3 DAVIS v. DVA
court that on October 7, 2009 the RO had issued a deci-
sion on the attorney fees dispute, and with regard to
Davis's increased rating and earlier effective date claims,
Davis himself had not perfected his appeal with the Board
and the DRO review was still in process. The Secretary
further noted that with regard to the issue of TDIU, there
was no evidence that Davis had ever filed a TDIU claim
and the Secretary therefore sent him a letter informing
Davis of the Secretary duty-to-notify requirements pursu-
ant to 38 U.S.C. § 5103(a), beginning the processing of his
claim.
On November 9,2009, the Court of Appeals for Veter-
ans Claims denied Davis's petition for a writ of manda-
mus. With regard to the attorney fees dispute, the court
noted that the agency had now issued an initial decision
on the matter and that Davis could appeal that decision to
the Board. With regard to his compensation award dis-
pute, the court stated that the RO had moved forward
with his claim and that a DRO officer had been assigned
and would issue a supplemental statement of the case,
which Davis could then appeal to the Board. Satisfied
that the agency's actions mooted the issues raised by
Davis, the court denied his petition for a writ of manda-
mus. Additionally, the court noted that the issues raised
by Davis in his petition were the same as those presented
in a petition filed earlier in the year and that "[t]he court
will therefore not entertain any further filings on these
matters." Davis now seeks review by this court of that
decision.
The court's jurisdiction to review decisions of the
Court of Appeals for Veterans Claims is -limited. See
Forshey v. Principi, 284 F.3d 1335, 1338 (Fed. Cir. 2002)
(en banc). Under 38 U.S.C. § 7292(a), this court has
jurisdiction over rules of law or the validity of any statute
or regulation, or an interpretation thereof relied on by the
court in its decision. This court may also entertain chal-
DAVIS v. DVA 4
lenges to the validity of a statute or regulation, and to
interpret constitutional and statutory provisions as
needed for resolution of the matter. 38 U.S.C. § 7292(c).
In contrast, except where an appeal presents a constitu-
tional question, this court lacks jurisdiction over chal-
lenges to factual determinations or laws or regulations as
applied to the particular case. 38 U.S.C. § 7292(d)(2).
In his brief, Davis contends that his appeal raises an
issue of constitutional due process because the court
denied him a full and fair hearing on the factual issues
before the court based on its statement that "[t]he court
will therefore not entertain any further filings on these
matters." Davis further asserts in his brief that the
Secretary incorrectly explained to the court that he never
filed a TDIU claim because that claim was implicitly
raised when he sought to file his claim for an increased
rating. Finally, Davis contends that the agency is incor-
rectly withholding an amount of his retroactive disability
compensation award because his prior attorney is not
entitled to attorney fees pursuant to 38 U.s.C. § 5904.
We agree with the Secretary that this court is without
jurisdiction over Davis's assertions regarding his TDIU
claim and his assertions regarding the withholding of a
portion of his compensation award based on the ongoing
fees dispute. As the Court of Appeals for Veterans Claims
noted, those issues remain pending before the agency and
Davis must exhaust all of his administrative remedies
before pursuing an appeal. With regard to Davis's consti-
tutional question argument, we cannot say that the
court's statement that it would not entertain further
filings on these matters amounted to a violation of the
procedural due process. The court's statement does not
preclude Davis from pursuing a proper appeal at the
Court of Appeals for Veterans Claims on matters ongoing
before the agency when those matters are ripe for appeal.
Furthermore, Davis has now been afforded two decisions
5 DAVIS v. DVA
from the Court of Appeals for Veterans Claims on essen-
tially the same matters and facts. Given the circum-
stances here, we cannot say it was improper for the court
to deny further filings on the same matter. Therefore, to
the extent that this issue falls within this court's jurisdic-
tion, we reject Davis's argument.
Accordingly,
IT Is ORDERED THAT:
(1) The Secretary's motions are granted. The appeal
is dismissed in part and affirmed-in-part.
(2) Each side shall bear its own costs.
(3) Davis's motion is granted.
FOR THE COURT
OCT 272010 lsI Jan Horbaly
Date Jan Horbaly
Clerk
FILED
u.s. COURt OF APPEALS FOR
THE FEDERAL CIRCUIT
cc: Robert R. Davis, Jr.
Michael N. O'Connell, Esq. OCT 2 TZOIO
s19
JAN HORBALY
CLERK
ISSUED AS A MANDATE: _O_C_T_2_7_2_01_D_ __