Winsett v. Shinseki , 549 F. App'x 998 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHELIA WINSETT,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7086
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-2664, Judge Alan G. Lance, Sr.
______________________
Decided: December 11, 2013
______________________
SHELIA WINSETT, of Parrish, Alabama, pro se.
BARBARA E. THOMAS, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With her on the brief were STUART F. DELERY, Acting
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and MARTIN F. HOCKEY, JR., Assistant Director. Of
counsel on the brief was TRACEY PARKER WARREN, Gen-
eral Attorney, Office of the General Counsel, United
States Department of Veterans Affairs, of Washington,
2 WINSETT v. SHINSEKI
DC. Of counsel was DAVID J. BARRANS, Deputy Assistant
General Counsel, United States Department of Veterans
Affairs, of Washington, DC.
_____________________
Before NEWMAN, LOURIE, and BRYSON, Circuit Judges.
PER CURIAM.
Shelia Winsett (“Winsett”) appeals from the order of
the United States Court of Appeals for Veterans Claims
(the “Veterans Court”) denying her petition for a writ of
mandamus and imposing sanctions for frivolous filings.
Winsett v. Shinseki, No. 12-2664, 2012 WL 5360974 (Vet.
App. Nov. 1, 2012). Because the Veterans Court did not
abuse its discretion, we affirm.
BACKGROUND
Before us is Winsett’s eleventh appeal to this court re-
lating to benefit claims arising from the death of Gary
Jacks (“Jacks”), a veteran. See Winsett v. Shinseki, 527 F.
App’x 965 (Fed. Cir. 2013) (two consolidated appeals);
Winsett v. Shinseki, 397 F. App’x 627 (Fed. Cir. 2010);
Winsett v. Peake, 302 F. App’x 915 (Fed. Cir. 2008); Win-
sett v. Peake, 283 F. App’x 796 (Fed. Cir. 2008); Winsett v.
Nicholson, 174 F. App’x 567 (Fed. Cir. 2006); In re Win-
sett, 90 F. App’x 398 (Fed. Cir. 2004); Winsett v. Principi,
341 F.3d 1329 (Fed. Cir. 2003); Winsett v. Principi, 65 F.
App’x 301 (Fed. Cir. 2003); Winsett v. West, 217 F.3d 854(Fed. Cir. 1999) (unpublished).
Jacks and Winsett married in 1969 and divorced in
1977. After Jacks died in 1989, Winsett made successive
filings at a Department of Veterans Affairs (“VA”) Re-
gional Office (“RO”) seeking recognition as Jacks’s surviv-
ing spouse and claiming that she and Jacks had lived
together in a common law marriage after their divorce.
The Board of Veterans’ Appeals (the “Board”) denied her
initial surviving spouse claim in 2005, which was affirmed
WINSETT v. SHINSEKI 3
by the Veterans Court in September 2007 and by this
court in July 2008. Winsett v. Peake, 283 F. App’x 796,
798 (Fed. Cir. 2008).
The day after the Board denied her first claim, Win-
sett filed a second surviving spouse claim at the RO and
subsequently appealed the RO’s denial of that claim.
While recognizing that her initial claim was on appeal,
the Board reopened her case after determining that she
had presented new and material evidence. On December
21, 2007, the Board denied her second claim (the “2007
Decision”). Winsett appealed to the Veterans Court
arguing that the Board lacked jurisdiction over her second
claim while her first claim was on appeal. The Veterans
Court affirmed the Board, noting that the Board could
reopen her case after the submission of new and material
evidence and that “such a reopening amounts to a new
case and is a jurisdictionally separate matter.” Winsett v.
Shinseki, No. 08-0210, 2010 WL 276193, at *7 (Vet. App.
Jan. 26, 2010); see also 38 U.S.C. § 5108. We dismissed in
part and affirmed in part, finding “no error in allowing
her claim to be reopened while the case was on appeal.”
Winsett v. Shinseki, 397 F. App’x 627, 629 (Fed. Cir.
2010).
Winsett filed a third surviving spouse claim in 2009.
The RO first denied that claim and then closed the claim
after the RO determined in 2011 that it lacked jurisdic-
tion. Winsett, 2012 WL 5360974, at *3. Winsett then
filed three mandamus petitions in the Veterans Court.
On February 17, 2012, Winsett filed a petition seeking
to vacate the 2007 Decision. Relying on the RO’s deter-
mination in 2011 that it lacked jurisdiction over a later
filed claim, she asserted that the Board lacked jurisdic-
tion to issue the 2007 Decision and that the decision
should be revised on the basis of clear and unmistakable
error (“CUE”). The Veterans Court denied the petition.
Winsett v. Shinseki, No. 12-784, 2012 WL 1155918 (Vet.
4 WINSETT v. SHINSEKI
App. Apr. 6, 2012). The court explained that her jurisdic-
tional argument had been previously considered and
rejected. Moreover, because the 2007 Decision had been
affirmed on appeal, it was no longer subject to revision on
the basis of CUE. Id. at *2; 38 C.F.R. § 20.1400. The
court noted that Winsett “should be well aware of
§ 20.1400, as the Court and the Federal Circuit [had]
rejected [the CUE] argument with respect to at least two
other Board decisions.” Winsett, 2012 WL 1155918, at *2
(citing Winsett v. Shinseki, No. 08-0210, 2010 WL 276193,
at *3; Winsett v. Principi, 341 F.3d at 1331–32). The court
cautioned that “[s]hould she continue to raise this argu-
ment, whether in connection with this Board decision or
any other Board decision that has been appealed to and
decided by the Court, the Court may impose sanctions in
addition to dismissing her petition or appeal.” Id. (citing
U.S. Vet. App. R. 38).
On May 8, 2012, Winsett filed a second mandamus
petition, asserting that the RO violated her constitutional
rights when it closed her 2009 claim. The Veterans Court
denied that petition. Winsett v. Shinseki, No. 12-1572,
2012 WL 3554585 (Vet. App. Aug. 20, 2012). Winsett
appealed the denial of those two mandamus petitions and
we affirmed the Veterans Court. Winsett v. Shinseki, 527
F. App’x 965 (Fed. Cir. 2013) (appeals consolidated).
While her first mandamus petition was pending be-
fore the Veterans Court, Winsett filed a motion before the
Board asserting that the 2007 Decision constituted CUE.
The Board denied that motion on August 22, 2012. In re
Winsett, 2012 WL 5221180 (Bd. Vet. App. Aug. 22, 2012).
On August 10, 2012, Winsett filed her third manda-
mus petition in the Veterans Court, which is at issue in
this appeal, seeking to correct a statement in a February
2012 letter that she received from the Board. Winsett,
2012 WL 5360974, at *1. In that letter, the Board stated
that the 2007 Decision was issued “months following the
WINSETT v. SHINSEKI 5
Veterans Court’s mandate.” Resp’t’s App. at 38. Winsett
then filed ten supplemental documents in the Veterans
Court between August and October 2012, asserting that:
(1) the Board lacked jurisdiction to issue the 2007 Deci-
sion and that the decision was the product of CUE; (2) the
Veterans Court had improperly docketed her pleadings as
“received,” rather than as “filed;” (3) her case should be
decided by a panel, rather than by a single judge; and
(4) the VA had falsified or destroyed records in her claims
file. Winsett, 2012 WL 5360974, at *4.
A single judge of the Veterans Court denied her third
petition on November 1, 2012. Id. at *8. The court found
that Winsett was not prejudiced by the incorrect state-
ment in the February 2012 letter and that her other
arguments were unpersuasive, moot, or contrary to the
rules of the court. Id. at *5–6. The court also referred to
its denial of her first mandamus petition, which explained
that Winsett had exhausted her appellate rights with
respect to the 2007 Decision. Id. at *6. The court then
imposed sanctions on Winsett “in light of voluminous,
repetitive, and frivolous filings . . . both in this case and in
the past.” Id. at *7. Those sanctions prohibited Winsett
from filing further pleadings in the Veterans Court, other
than pleadings for a pending appeal and future notices of
appeal from the Board, without first filing a motion to
seek permission and paying a $50 filing fee. Id. at *8.
The court indicated that Winsett would be “subject to
further sanction, including a fine, should she fail to abide
by the terms of this order,” but allowed her to move to
rescind the order after two years. Id. at *8–9.
Winsett moved for a panel decision, which was grant-
ed. A panel of three judges affirmed and adopted the
November 2012 order as the decision of the court. Winsett
v. Shinseki, No. 12-2664, 2013 WL 28622 (Vet. App. Jan.
3, 2013). Winsett’s subsequent motion for en banc review
was denied. Winsett v. Shinseki, No. 12-2664, 2013 WL
866527 (Vet. App. Mar. 8, 2013). This appeal followed.
6 WINSETT v. SHINSEKI
DISCUSSION
We review the denial of a petition for a writ of man-
damus for abuse of discretion. Lamb v. Principi, 284 F.3d
1378, 1381–82 (Fed. Cir. 2002). The imposition of sanc-
tions by a court below is also reviewed for abuse of discre-
tion. Eon-Net LP v. Flagstar Bancorp, 653 F.3d 1314,
1328 (Fed. Cir. 2007) (citing Cooter & Gell v. Hartmarx
Corp., 496 U.S. 384, 405 (1990)) (Rule 11 sanctions).
However, our jurisdiction to review decisions of the Vet-
erans Court is limited by statute. 38 U.S.C. § 7292. We
may not, absent a constitutional challenge, “review (A) a
challenge to a factual determination, or (B) a challenge to
a law or regulation as applied to the facts of a particular
case.” Id. § 7292(d)(2).
I.
Winsett maintains that her mandamus petition
should have been granted. She argues that the 2007
Decision constituted CUE because the RO later admitted
in 2011 that it lacked jurisdiction. She contends that the
VA erred in processing her 2005 claim as a new claim
under 38 C.F.R. § 3.156(a), rather than as a pending
claim under § 3.156(b). Winsett also argues that the error
in the February 2012 Board letter caused her harm.
Winsett alleges that her constitutional rights were violat-
ed because the VA had purportedly falsified and de-
stroyed records of her claims file. Winsett also asserts
that the judge issuing the November 2012 order was
biased and should have been recused.
The government responds that Winsett’s arguments
concerning the 2007 Decision cannot serve as a basis for
mandamus relief because her arguments have been
previously considered and rejected. The government
contends that her remaining arguments lack legal basis
or were rejected by the Veterans Court based on factual
determinations not reviewable on appeal. The govern-
WINSETT v. SHINSEKI 7
ment also responds that Winsett failed to establish a
plausible constitutional claim.
We agree with the government. A writ of mandamus
is a remedy reserved for “extraordinary circumstances.”
Lamb, 284 F.3d 1382. A petitioner must demonstrate
that she has a clear and indisputable right to the writ and
that she has no alternative way to obtain the relief
sought. Id. (quoting Kerr v. U.S. Dist. Court, 426 U.S.
394, 403 (1976)). Winsett failed to clearly and indisputa-
bly establish her right to a writ. She advanced arguments
challenging the 2007 Decision, which had been advocated
and rejected in her direct appeal of the 2007 Decision and
her first mandamus petition filed in 2012. In our recent
decision affirming the denial of that mandamus petition,
we explained that the Board in 2007 made a finding of
new and material evidence with regard to her second
claim. Winsett, 527 F. App’x at 969. That determination
had been affirmed on appeal and rendered harmless the
RO’s initial error in entertaining the second claim. In
contrast, there was no finding of new and material evi-
dence as to the third claim and the RO rightly closed that
claim. Our affirmance of the 2007 Decision was final and
not subject to further review by the Board. As a result,
Winsett did not have the clear right to relief from the
2007 Decision that was required to invoke the extraordi-
nary remedy of mandamus. Id. (citing Cheney v. U.S.
Dist. Court, 542 U.S. 367, 381 (2004)).
Winsett asserts that if the Board had waited to decide
on her second claim until after we had ruled on her first
claim in 2008 then our 2008 decision would have caused
the Board to decide differently. Our 2008 opinion stated
in the Background that, “[a]ccording to family and
friends,” Winsett and Jacks “cohabited” for some time
following their divorce. Winsett, 283 F. App’x at 798.
However, as we noted, that reference to the record does
not constitute a factual finding as to whether Winsett and
Jacks had cohabited. Winsett, 527 F. App’x at 970. In-
8 WINSETT v. SHINSEKI
deed, we lack jurisdiction to review such a factual deter-
mination. 38 U.S.C. § 7292(d)(2); Winsett, 397 F. App’x at
629 (“The Board’s determination that Winsett and Jacks
did not have a common law marriage at the time of
Jacks’[s] death involves a question of law applied to facts
and is not within our jurisdiction to review.”).
We find no merit in Winsett’s remaining arguments
regarding her mandamus petition and therefore conclude
that the Veterans Court did not abuse its discretion in
denying the petition.
II.
Winsett maintains that the Veterans Court erred in
imposing sanctions. Winsett argues that she filed the
mandamus petition following the Board’s suggestion in its
August 22, 2012 decision. Winsett asserts that her filings
were not frivolous and that she was not relitigating
previously adjudicated issues. Winsett argues that in
August 2010 the Veterans Court had ordered her to show
cause as to why the court should not enjoin her from
future filings, but did not sanction her at that time, and
thus she “should not be tried for the same cases twice.”
Pet’r’s Informal Br. 8. Winsett also asserts that she was
not given proper notice and an opportunity to respond.
The government responds that the Veterans Court did
not abuse its discretion in sanctioning Winsett. The
government contends that her arguments have been
raised in prior appeals and that her appeal was wasteful
given the number of times the denials of her surviving
spouse claims had been reviewed and affirmed. The
government contends that Winsett abused the judicial
process by inundating the court with repetitive arguments
concerning the 2007 Decision. The government asserts
that her arguments concerning the August 2010 court
order had no legal basis and that the Veterans Court had
the authority to sanction a litigant based on her entire
litigation history before the court. The government
WINSETT v. SHINSEKI 9
maintains that Winsett had notice from the Veterans
Court in its April 2012 order that the court may impose
sanctions. The government argues that Winsett had an
opportunity to and did in fact respond to the sanctions
order by seeking panel review.
We agree with the government. Winsett’s reliance on
the August 22, 2012 Board decision is inapposite because
she filed the petition on August 10, 2012, before the
issuance of the Board decision. Disregarding the warning
of possible sanctions from the Veterans Court in its April
2012 order, Winsett filed supplemental documents be-
tween August and October 2012 raising similar argu-
ments as those presented in the first two mandamus
petitions, including CUE challenges to the 2007 Decision,
which had been considered and denied by the court.
Winsett, 2012 WL 1155918, at *2. Moreover, when impos-
ing filing sanctions, the Veterans Court noted that Win-
sett had filed more than 60 documents in 2012 including
identical documents in different dockets and errata or
addenda to previous filings that consisted of minor typo-
graphical changes and that those repetitive filings were
more egregious in light of the court’s prior warnings.
Winsett, 2012 WL 5360974, at *7 (citing Winsett, 2012 WL
1155918, at *2; Winsett v. Principi, No. 01-726, 2001 WL
881276, at *1 (Vet. App. June 1, 2001) (“The goal of fairly
dispensing justice, however, is compromised when the
Court is forced to devote its limited resources to the
processing of repetitious and frivolous requests.”); Winsett
v. Principi, No. 00-2320, 2001 WL 881423, at *1 (Vet. App.
Apr. 3, 2001) (“The Court notes that Ms. Winsett has
already been cautioned that her numerous and incon-
sistent pleadings are not contemplated by the rules and
serve only to frustrate the appellate process. The inces-
sant influx of Ms. Winsett’s pleadings is an abuse of
process and a waste of judicial resources.”). All of these
activities justified sanctions.
10 WINSETT v. SHINSEKI
Rule 38(a) of the Veterans Court provides that “[i]f
the Court determines that an appeal, petition, motion, or
other filing is frivolous, it may, after . . . notice from the
Court and reasonable opportunity to respond, enter such
order as it deems appropriate, to include sanctions, dis-
missal of the appeal, or reduction in any award . . . .”
Winsett received clear notice of possible sanctions from
the Veterans Court, including from the April 2012 order.
Winsett, 2012 WL 1155918, at *2. Notwithstanding those
warnings, Winsett filed two additional mandamus peti-
tions in May and August of 2012 and numerous supple-
mental documents. After the single judge issued the
sanctions order in November 2012, Winsett contested the
order in her motion for panel review. Resp’t’s App. at 73.
After granting her motion, a panel of three judges of the
Veterans Court affirmed the November 2012 order. “The
Veterans Court has broad discretion to interpret and
apply its Rules of Practice and Procedure.” Bastien v.
Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010) (citing
Carbino v. West, 168 F.3d 32, 35 (Fed. Cir. 1999)); Lynch
v. Shinseki, 476 F. App’x 401, 407 (Fed. Cir. 2012) (“The
Veterans Court’s enforcement of its own procedural rules
is entitled to substantial discretion”). We conclude that
the Veterans Court did not abuse its discretion in impos-
ing sanctions on Winsett.
CONCLUSION
We have considered Winsett’s remaining arguments,
including those presented in supplemental documents
filed after her reply brief, and conclude that they are
without merit. Because the Veterans Court did not abuse
its discretion in denying the mandamus petition and in
imposing filing sanctions, we affirm.
AFFIRMED