Veteranclaims’s Blog

January 8, 2010

Appealing Federal Circuit, No Judicial Hook, Constitutional Issue, Jackson v. Shinseki, Helfer v. West

Appealing Federal Circuit, Judicial Hook, Constitutional Issue, Jackson v. Shinseki, Helfer v. West

Appealing to the Federal Circuit and the “judicial hook” or what is need in order for the Federal Circuit to exercise jurisdicton over your appeal.
Appeal to the Federal Circuit is conditional, that means that you have to satisfy the conditions over which the Federal Circuit has jurisdiciton, establish the “judicial hook”.

This is a multi-part posting, the first part is to present cases where the FedCir has refused to hear an appeal where the veteran was found to just proclaim Constitutional violations.

One of the most misunderstood concepts is perhaps the notion that by simply proclaiming a Constitutional violation, that somehow that bare statement provides the “judicial hook”[jurisdiction] the FedCir needs to hear your claim. Merely proclaiming that your Constitutional Rights have been violated without supporting arguments and facts does not establish a duty upon the court to consider and/or address that argument.

Jackson v. Shinseki, [full case below] where it stated:
“Turning to Mr. Jackson’s Fifth and Eighth Amendment claims, we have also made it clear in the past that he cannot “attempt to raise a constitutional issue simply by placing a constitutional label on his assertions.” Jackson, 303 F. App’x at 883; see Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999) (“To the extent that he has simply put a ‘due process’ label on his contention that he should have prevailed . . . his claim is constitutional in name only. . . . [the veteran’s] characterization of that question as constitutional in nature does not confer upon us jurisdiction that we otherwise lack.”).”

Warrren v. Shinseki, [full case below] where it stated:
“Warren presents additional arguments on appeal, alleging constitutional violations resulting from alleged VA wrongdoing. These arguments are not sufficiently colorable to grant this court jurisdiction. See Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999).

Helfer v. West, where the Court stated:
” 10 * Mr. Helfer’s constitutional argument is that by ruling against him as it did, the Court of Veterans Appeals deprived him of a property interest without due process of law. Much of his argument on this point hints that because the court was mistaken in ruling against him, he was deprived of property (attorneys fees and expenses) to which he was entitled (because he should have been awarded them), without due process of law (i.e., without a correct adjudication of his rights). To the extent that he has simply put a “due process” label on his contention that he should have prevailed on his EAJA claim, his claim is constitutional in name only. Thus, when Mr. Helfer contends that the Court of Veterans Appeals violated his constitutional rights by “ignor[ing] mandatory authority that compelled a finding that the Secretary’s position was not justified,” he is really arguing the merits of his EAJA claim, not raising a separate constitutional contention. We do not have jurisdiction to consider whether the Court of Veterans Appeals was mistaken when it concluded that the Secretary’s position before that court was substantially justified, and Mr. Helfer’s characterization of that question as constitutional in nature does not confer upon us jurisdiction that we otherwise lack.
11

To the extent that Mr. Helfer raises a constitutional argument separate from his contention that the court erred in denying his EAJA claim, that argument is within the scope of our jurisdiction. Under 38 U.S.C. § 7292(a), a party to a case before the Court of Appeals for Veterans Claims may obtain a review of the court’s decision “with respect to the validity of any statute or regulation … or any interpretation thereof … that was relied on by the Court in making the decision.” Consistent with subsection (a) of the statute, subsection (c) gives us “exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof brought under this section, and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c).”

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United States Court of Appeals for the Federal Circuit

May 7, 2009

MARK C. JACKSON, CLAIMANT-APPELLANT,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.

Appeal from the United States Court of Appeals for Veterans Claims in 07-0817, Chief Judge William P. Greene, Jr.

Mark C. Jackson, of Starke, Florida, pro se.

Russell A. Shultis, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, Dc, for respondent-appellee. With him on the brief were Jeanne E. Davidson, Director, and Brian M. Simkin, Assistant Director.

Per curiam.

NOTE: This disposition is nonprecedential.

Before RADER, LINN, and PROST, Circuit Judges.

Mark C. Jackson appeals a decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) affirming the Board of Veterans’ Appeals’ (“Board’s”) decision to deny service connection for Mr. Jackson’s hip and knee disabilities and an increased disability evaluation for a finger fracture. See Jackson v. Peake, No. 07-0817, 2008 WL 4453370 (Vet. App. Sept. 30, 2008). For the reasons that follow, we dismiss the appeal for lack of jurisdiction.

BACKGROUND

Mr. Jackson was active in the military from July 1989 to July 1993. After he left the service, he alleged that he suffered a number of service-connected injuries and requested vocational rehabilitation and employment benefits. His case has been back and forth between the Board and his regional office (“RO”) a number of times. The Board’s most recent action took place on October 6, 2006, when the Board issued two related decisions: one addressing Mr. Jackson’s vocational rehabilitation claims, and one addressing Mr. Jackson’s service connection and increased rating claims.*fn1

We first trace the history of Mr. Jackson’s vocational rehabilitation claims. Before the Board, Mr. Jackson argued that he was entitled to reimbursement for a computer he had allegedly purchased for his vocational training. He also requested a determination of feasibility of a vocational goal. The Board found that Mr. Jackson did not receive the requisite notice, and noted that certain documents appeared to be missing from the record. The Board remanded the entire case back to the RO because “in addition to the confusion regarding the [vocational rehabilitation] appeal issues there [was] a substantial due process deficiency.”*fn2

Mr. Jackson appealed the Board’s 2006 vocational rehabilitation decision to the Veterans Court. Jackson v. Peake, No. 07-2703, 2008 WL 624713 (Vet. App. Jan. 4, 2008). In that opinion, the Veterans Court noted that the Board had in fact remanded Mr. Jackson’s claims. Because a remand is not a “final” Board decision, and because the Veterans Court only has jurisdiction over final decisions, the court dismissed the appeal. We summarily affirmed that decision. Jackson v. Peake, No. 2008-7103, 2008 WL 5690032 (Fed. Cir. July 18, 2008).

Mr. Jackson also petitioned the Veterans Court for two writs of mandamus, both relating to his vocational rehabilitation claims. In the first, Mr. Jackson alleged that the Department of Veterans Affairs deprived him of his liberty by interfering with his ability to acquire “useful knowledge.” He requested that the court order the Department of Veterans Affairs (“VA”) to pay for all past and future benefits, and asked for punitive damages and lost wages in the amount of $7,800,000. Jackson v. Peake, No. 08-0662, 2008 WL 2572708, at *1 (Vet. App. June 23, 2008). The Veterans Court denied the petition, and Mr. Jackson appealed. Before we could issue an opinion, however, Mr. Jackson filed another petition based largely on the same facts and requesting similar relief. The court denied that petition as well. Jackson v. Peake, No. 08-3082, 2008 WL 5082120 (Vet. App. Nov. 21, 2008). We then affirmed the court’s June 2008 decision to deny Mr. Jackson’s petition for a writ of mandamus in Jackson, 303 F. App’x 881.

As we mentioned, the second portion of the Board’s October 2006 decision dealt with Mr. Jackson’s service connection and increased rating claims. In that opinion, the Board found that the VA had satisfied its duty to provide notice to and assist Mr. Jackson. The Board denied Mr. Jackson a service connection for a bilateral hip and knee disability, and held that Mr. Jackson failed to show he was entitled to an increased disability evaluation for residuals of a fracture in his left third finger. The Board also remanded on a number of issues, including Mr. Jackson’s entitlement to service connection for a broken back and various foot problems. Finally, the Board deferred a determination of Mr. Jackson’s total disability based upon individual unemployability (“TDIU”).*fn3

Mr. Jackson appealed to the Veterans Court, challenging “that part of the October 6, 2008 Board decision that denied (1) secondary service connection for a bilateral hip disability, (2) secondary service connection for a bilateral knee disability and (3) increased (compensable) disability evaluation for residuals of a fracture left index finger.” Despite this statement, Mr. Jackson’s appellate brief was dedicated to two issues: whether the VA failed in its duty to assist Mr. Jackson in obtaining certain Social Security and medical records, and whether the VA failed to obtain certain vocational rehabilitation documents and associate those records with his file. He requested a remand “to obtain the Veteran’s SSA disability records and VA Vocational Rehabilitation records.” The Veterans Court found that Mr. Jackson did not show that he had ever notified the VA of any potentially relevant Social Security documents other than those already in the record. See Jackson, 2008 WL 4453370, at *1. The court also found that more than 200 pages of vocational rehabilitation documents existed, and Mr. Jackson failed to indicate with specificity which documents were missing. Id. at *2. The Veterans Court therefore affirmed the Board’s October 2006 decision. Id.

Mr. Jackson has now filed an appeal on this matter with us. While Mr. Jackson admits that the Veterans Court decision did not involve the validity or interpretation of a statute or regulation, he argues (among other things) that two of his constitutional rights have been violated. First, he claims that the VA deprived him of liberty without due process of law because the VA has prevented him “from acquiring useful knowledge.” Second, he claims he has been cruelly and unusually punished by the VA’s malicious postponement of his academic career. He asks us to award him $10,400,000 in punitive damages for these constitutional violations.

DISCUSSION

Under 38 U.S.C. § 7292, this court has extremely limited authority to review the Veterans Court’s decisions. This court decides “all relevant questions of law, including interpreting constitutional and statutory provisions.” 38 U.S.C. § 7292(d)(1). However, unless the appeal presents a constitutional issue, we may not review challenges to factual determinations or “to a law or regulation as applied to the facts of a particular case.” Id. § 7292(d)(2).

Mr. Jackson’s informal brief focuses almost entirely on the facts and the application of law to those facts. For instance, in addition to his constitutional claims Mr. Jackson argues that (1) the Veterans Court failed to remand his case as requested by counsel, (2) the record erroneously shows an injury to Mr. Jackson’s index finger, not his third metacarpal, (3) the VA failed to obtain his Social Security records, (4) he was not permitted to view or add to the record on appeal, (5) his disability rating should be increased to 80%, (6) he qualifies for Social Security disability, convalescence time, and TDIU, and (7) he should be reimbursed for the computer.*fn4 We simply do not have jurisdiction over these issues-they are either pure questions of fact or questions involving the application of law to the facts.

Further, many of the issues are still on remand to the Board and are not properly before either this court or the Veterans Court. Both courts have repeatedly made it clear to Mr. Jackson that he must wait to receive final judgment before he can appeal his claims. See Jackson, 303 F. App’x at 884 (the Board’s October 2006 decision “was not a final decision that can be appealed to the Veterans Court. . . . Once the Board reaches a final decision, he will have the opportunity to appeal . . . .”); Jackson, 2008 WL 5690032, at *1 (because “there was no final Board decision,” the Veterans Court “was clearly correct in dismissing Jackson’s appeal”); Jackson, 2008 WL 5082120, at *2 (“[T]o the extent the petitioner is attempting to appeal the October 2006 decisions, they are not final adverse decisions of the Board over which the Court would have jurisdiction.”).

Turning to Mr. Jackson’s Fifth and Eighth Amendment claims, we have also made it clear in the past that he cannot “attempt to raise a constitutional issue simply by placing a constitutional label on his assertions.” Jackson, 303 F. App’x at 883; see Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999) (“To the extent that he has simply put a ‘due process’ label on his contention that he should have prevailed . . . his claim is constitutional in name only. . . . [the veteran’s] characterization of that question as constitutional in nature does not confer upon us jurisdiction that we otherwise lack.”). This is just as true now as it was then-Mr. Jackson is in effect arguing that he should prevail on the merits of his vocational rehabilitation claims. That question is outside of our jurisdiction. Mr. Jackson will have to wait for the Board’s final decision on the merits, and if he does not like the result he may then appeal the Board’s decision to the Veterans Court. To the extent that Mr. Jackson makes other arguments, we find them to be without merit.

CONCLUSION

For the reasons stated above, we dismiss Mr. Jackson’s action for lack of jurisdiction.

Opinion Footnotes *fn1 While the Board usually addresses all issues in a single decision, the Board has an exception for issues “dependent on completely different law and facts,” such as vocational rehabilitation and service connection.

*fn2 On remand, the RO denied Mr. Jackson’s claims and notified him via a Supplemental Statement of the Case (“SSOC”). Jackson v. Peake, 303 F. App’x 881, 883–84 (Fed. Cir. 2008). The SSOC informed Mr. Jackson that he had sixty days in which to respond to the action, and that if he did not respond the case would be turned over to the Board for appellate review.

*fn3 To the best of our knowledge, the claims that were remanded in that decision are still on remand and have not been returned to the Board. See Jackson, 2008 WL 5082120, at *1.

*fn4 Mr. Jackson also refers to a claim that was adjudicated by the United States Court of Federal Claims. There, he alleged that he was entitled to Social Security disability and veterans benefits and that the VA breached an implied-in-fact contract arising out of Mr. Jackson’s rehabilitation plan. Jackson v. United States, 80 Fed. Cl. 560 (2008). The court dismissed the case for lack of jurisdiction. Id. at 565– 68. We affirmed. Jackson v. United States, No. 2008-5060, 2008 WL 5648486 (Fed. Cir. June 26, 2008).

20090507

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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-7126
GERALD F. WARREN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Gerald F. Warren, of The Dalles, Oregon, pro se.
David S. Silverbrand, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Kirk T. Manhardt, Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Amanda R. Blackmon, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Chief Judge William P. Greene, Jr.
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit

2009-7126
GERALD F. WARREN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 06-3514, Chief Judge William P. Greene, Jr.
___________________________
DECIDED: January 7, 2010
___________________________
Before MICHEL, Chief Judge, BRYSON, and DYK, Circuit Judges.
PER CURIAM.
Gerald F. Warren (“Warren”) appeals the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) affirming a decision of the Board of Veterans’ Appeals (“Board”). The Board denied an earlier effective date for the award of a 100% disability rating for post-traumatic stress disorder (“PTSD”). See Warren v. Shinseki, No. 06-3514, 2009 WL 1363087 (Vet. App. May 18, 2009). Warren presents no issues of statutory or constitutional interpretation that would confer jurisdiction on this court. Accordingly, the appeal must be dismissed.
BACKGROUND
Warren served in the United States Army from March 1969 to December 1970, including service in Vietnam. On August 29, 1985, Warren submitted his first claim before the Department of Veterans Affairs (“VA”) for service connection for PTSD. In December 1985, the VA regional office (“RO”) awarded him service connection for the PTSD and assigned him a 50% disability rating effective August 29, 1985, the date of his claim. Warren did not appeal this decision, and it became final. In August and December 1987, the RO decided to continue the previously assigned disability rating of 50% due to PTSD, and these decisions also became final after Warren did not appeal.
On May 23, 1990, the VA administered Warren a psychiatric examination and again found that it was appropriate to maintain the 50% rating. Warren submitted additional medical evidence, but in October 1991, the RO sustained the previously assigned rating. Warren appealed the RO’s decision, and in January 1997, after extensive procedural development, the VA increased his PTSD rating to 100%, effective May 23, 1990. Claiming that he was entitled to an April 1985 effective date for the 100% rating, Warren appealed to the Board.
The Board found that there was no legal basis for assigning an effective date for the 100% rating prior to May 23, 1990. Under 38 U.S.C. § 5110(a), the effective date of an award of increased disability compensation “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” Thus, the Board found that because Warren did not appeal the 1985 and 1987 RO decisions establishing and maintaining his 50% disability rating, his eventual 100% rating could not be traced to those claims, and the effective date for an increased rating
2009-7126 2
could only be established by a later claim. The Board then determined that May 23, 1990, was the earliest date that could be construed as the date of the filing of an informal claim leading to the 100% rating, and upheld the RO’s decision. The Veterans Court affirmed the Board, concluding that its findings were not clearly erroneous. Warren now appeals from that decision.
DISCUSSION
This court’s jurisdiction to review decisions by the Veterans Court is limited. We “have exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof [by the Veterans Court] . . . , and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). We lack the jurisdiction to 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).
All of Warren’s arguments are ultimately directed to his claim that he is entitled to an earlier effective date for his 100% disability rating due to PTSD. A failure to appeal a VA determination bars a claim to an earlier effective date based on that unappealed determination. See Charles v. Shinseki, No. 2009-7024, 2009 WL 4257067, at *2-3 (Fed. Cir. Dec. 1, 2009). Alternatively, Warren claims that another submission (which was not the subject of the earlier VA decisions) constituted an informal claim. The Veterans Court evidently disagreed. The determination of whether a particular document satisfied the requirements for an informal claim is a question of fact. We lack jurisdiction to review such a determination. See Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). Warren also asserts that the VA failed to provide him with the
2009-7126 3 2009-7126 4
congressionally mandated “benefit of the doubt” under 38 U.S.C. § 5107(b) by not awarding him an earlier effective date. The Veterans Court found that under the circumstances of the case, the “approximate balance of positive and negative evidence” required to invoke the statute did not exist. See Warren, 2009 WL 1363087, at *3 (quoting 38 U.S.C. § 5107(b)). This too is a factual issue. Finally, Warren argues that the VA failed to follow through on its duty to assist him in developing his claim under 38 U.S.C. § 5103A(a)(1). The Veterans Court concluded that any alleged failure of the VA to comply with its duty to assist would not have resulted in an earlier effective date for the 100% rating. Warren, 2009 WL 1363087, at *4. This is also a factual determination.
Warren presents additional arguments on appeal, alleging constitutional violations resulting from alleged VA wrongdoing. These arguments are not sufficiently colorable to grant this court jurisdiction. See Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999).
Because none of Warren’s claims falls within our jurisdiction, we dismiss the appeal for lack of jurisdiction.
COSTS
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