Mays v. Shinseki , 555 F. App'x 992 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID A. MAYS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7140
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 12-3519, Judge Robert N. Davis.
______________________
Decided: February 12, 2014
______________________
DAVID A. MAYS, of Atlanta, Georgia, pro se.
MATTHEW P. ROCHE, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Assistant
Attorney General, BRYANT G. SNEE, Acting Director, and
DEBORAH A. BYNUM, Assistant Director. Of counsel on the
brief were DAVID J. BARRANS, Deputy Assistant General
Counsel, and MEGHAN D. ALPHONSO, Attorney, United
States Department of Veterans Affairs, of Washington,
DC.
______________________
2 MAYS v. SHINSEKI
PER CURIAM.
David Mays appeals from the decision of the United
States Court of Appeals for Veterans Claims (Veterans
Court) denying his petition for a writ of mandamus. Mays
v. Shinseki, No. 12-3519 (Ct. Vet. App. June 25, 2013).
For the reasons stated below, we dismiss for lack of
jurisdiction.
BACKGROUND
Mr. Mays was a member of the Reserve Officers’
Training Corps (ROTC) from 1971 until 1973. When Mr.
Mays completed his undergraduate degree in 1974, he
signed an agreement with the U.S. Army to delay entry
into active duty until September 1977 in order to attend
dental school. Thereafter, Mr. Mays served on active duty
from July 1978 to July 1980.
In 1981, Mr. Mays filed an application for educational
benefits under 38 U.S.C. Chapter 34. The Department of
Veterans’ Affairs (VA) Regional Office (RO) denied his
claim. It concluded that in order to be eligible for benefits
under Chapter 34, Mr. Mays was required to have entered
into active service prior to January 1, 1978. Mr. Mays
filed an appeal to the Board of Veterans’ Appeals (Board).
The Board denied his claim. Mr. Mays did not appeal the
Board’s decision, and it became final.
In January 2009, Mr. Mays filed another claim for
benefits pursuant to a variety of statutes. The RO denied
his claim, and Mr. Mays filed a Notice of Disagreement
(NOD). In March 2009, the RO issued a Statement of the
Case (SOC) that again denied Mr. Mays’ claim for bene-
fits. Mr. Mays appealed to the Board, which affirmed the
RO’s denial of his claim for entitlement to benefits. The
Veterans Court affirmed the Board’s decision.
In November 2012, Mr. Mays filed a petition for a writ
of mandamus with the Veterans Court. Mr. Mays alleged
that the VA failed to communicate with him and failed to
issue a Supplemental Statement of the Case (SSOC) after
he submitted new evidence subsequent to the RO’s March
2009 SOC. The VA countered that the petition was moot.
It argued that Mr. Mays appealed the March 2009 SOC to
the Board, and the Board’s decision was affirmed by the
MAYS v. SHINSEKI 3
Veterans Court. The VA argued that because Mr. Mays’
claim was fully processed, he was not entitled to a SSOC.
In addition, in January 2013, the RO issued a decision
finding that Mr. Mays did not submit any new and mate-
rial evidence, and stated that “[a] photocopy or other
duplication of information already contained in a VA
claims folder does not constitute new evidence since it was
previously considered.” J.A. 5. Following the VA’s re-
sponse, Mr. Mays filed a “Motion for a Relevant/Definitive
RO Response.” He contended that the January 2013 RO
decision did not contain an original signature and did not
adequately explain what constitutes new evidence.
In June 2013, the Veterans Court denied Mr. Mays’
petition for a writ of mandamus. First, the Veterans
Court ruled that a SSOC was unwarranted because both
the Board and Veterans Court issued decisions on Mr.
Mays’ appeal following the RO’s March 2009 SOC, and
the RO issued a decision concerning the recent evidence
submitted by Mr. Mays. Second, the Veterans Court
ruled that, even if Mr. Mays argued that the RO’s Janu-
ary 2013 decision needed clarification, he did not have a
right to the writ of mandamus from the Veterans Court.
Instead, the Veterans Court stated that Mr. Mays should
submit any arguments concerning alleged deficiencies of
the January 2013 RO decision to the VA. Mr. Mays
appeals.
DISCUSSION
We have jurisdiction to review “the validity of a deci-
sion of the [Veterans] Court on a rule of law or of any
statute or regulation . . . or any interpretation thereof
(other than a determination as to a factual matter) that
was relied on by the [Veterans] Court in making the
decision.” 38 U.S.C. § 7292(a). We lack jurisdiction,
however, to review a challenge to factual determinations
or the application of a law or regulation to particular
facts, except to the extent that an appeal presents a
constitutional issue. Id. § 7292(d). Our jurisdiction does
not broaden in the context of a writ of mandamus. See
Cox v. West, 149 F.3d 1360, 1363 (Fed. Cir. 1998) (“It is
well established that the [All Writs Act] does not expand a
court’s jurisdiction.”).
4 MAYS v. SHINSEKI
Mr. Mays contends that we have jurisdiction to review
rules of finality. Mr. Mays relies on two statutes. First,
he cites 38 U.S.C. § 5108, which provides that, “[i]f new
and material evidence is presented or secured with re-
spect to a claim which has been disallowed, the Secretary
shall reopen the claim . . . .” Second, Mr. Mays cites
§ 7111(a), which provides that, “[a] decision by the Board
is subject to revision on the grounds of clear and unmis-
takable error. If evidence establishes the error, the prior
decision shall be reversed or revised.” Mr. Mays also
argues that the VA fabricated a government document,
failed to respond to his “Motion for a Relevant/Definitive
RO Response,” and incorrectly ruled that he did not
submit new evidence without validation or affidavit. Mr.
Mays further argues that the VA deprived him of his Fifth
Amendment right to Due Process. He contends that the
RO should have issued a SSOC following its January 2013
decision, and should have provided an affidavit or decla-
ration in support of the RO’s decision, in order to ade-
quately explain what constitutes new evidence under
§ 5108.
We conclude that our court lacks jurisdiction over this
appeal. In denying Mr. Mays’ petition, the Veterans
Court did not make a decision on, or interpret, any aspect
of § 5108 or § 7111(a), as is required to establish our
jurisdiction under 38 U.S.C. § 7292(a). Indeed, the Veter-
ans Court did not rely on either provision. Mr. Mays
argues on appeal that it was an abuse of discretion for the
Veterans Court to deny his writ of mandamus because he
presented new evidence. The VA expressly addressed his
argument and found that the evidence was not new.
Whether evidence is “new and material” involves either a
factual determination or the application of law to facts.
See Barnett v. Brown, 83 F.3d 1380, 1383–84 (Fed. Cir.
1996). We lack jurisdiction to review this fact finding. 1
38 U.S.C. § 7292(d).
1 Mr. Mays nominally mentions a “due process”
challenge. We do not believe that Mr. Mays has plausibly
alleged a Fifth Amendment Due Process violation. Helfer
v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999) (An appel-
MAYS v. SHINSEKI 5
CONCLUSION
We have considered Mr. Mays’ remaining arguments
on appeal, and conclude that they do not present an issue
over which we have jurisdiction.
DISMISSED
lant’s mere characterization of an appeal as “constitution-
al in nature does not confer upon us jurisdiction that we
otherwise lack.”).