Winsett v. Shinseki
| Decision Date | 16 July 2013 |
| Docket Number | 2013-7043,2012-7180 |
| Parties | SHELIA WINSETT, Claimant-Appellant, v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
Note: This disposition is nonprecedential.
Appeal from the United States Court of Appeals for Veterans Claims in No. 12-784, Judge Alan G. Lance Sr.
Appeal from the United States Court of Appeals for Veterans Claims in No. 12-1572, Judge Robert N. Davis.
SHELIA WINSETT, of Parrish, Alabama, pro se, in appeals Nos. 2012-7180 and 2013-7043.
AMANDA L. TANTUM, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee, in appeal no. 2012-7180. With her on the brief were STUART F. DELERY, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY, JR., Assistant Director. Of counsel on the brief were DAVID J. BARRANS, Deputy Assistant General Counsel.
BARBARA E. THOMAS, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee, in appeal no. 2013-7043. With her on the brief were STUART F. DELERY, Principal Deputy Assistant Attorney General, JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY, JR., Assistant Director. Of counsel was JOSHUA P. MAYER, United States Department of Veterans Affairs, of Washington, DC.
These two consolidated appeals stem from the long-running efforts of Shelia Winsett to receive benefits as the surviving spouse of Gary W. Jacks, a veteran.1 Thecouple married in 1969 and lived together until 1977, when they divorced. Mr. Jacks subsequently died in 1989. Ms. Winsett claims that, after their divorce, she and Mr. Jacks reconciled and lived together in a common law marriage. The appeals currently before us, however, stray far from her underlying benefits claim.
At issue are two mandamus petitions filed by Ms. Winsett, both of which were denied by the Court of Appeals for Veterans Claims ("CAVC") and are now consolidated on appeal. Ms. Winsett filed the appeals after lodging three successive surviving spouse claims before a regional office ("RO") of the Department of Veterans Affairs ("DVA"), each one initiated before the appeal of the prior claim had run its course.
The RO denied Ms. Winsett's first relevant claim in 2004, finding that she did not qualify as Mr. Jacks's surviving spouse. The Board of Veterans' Appeals affirmed that decision in 2005, and the CAVC affirmed theBoard in 2007. This Court affirmed the CAVC in July of 2008. Winsett v. Peake, 283 F. App'x 796 (Fed. Cir. 2008).
By that time, Ms. Winsett had already filed a second surviving spouse claim with the RO, which she filed the day after the Board affirmed the RO's original decision. The RO denied that new claim in 2005. Ms. Winsett then appealed that denial to the Board. On December 21, 2007, the Board determined that she had presented new and material evidence, and it reopened her case, even though her original claim was still pending on appeal. Upon considering the new and material evidence, the Board affirmed the RO's denial of her claim. The Board also denied Ms. Winsett's motion arguing that its 2005 decision constituted clear and unmistakable error ("CUE"), because that decision had, by that point, already been upheld by the CAVC and was therefore not subject to revision by the Board.
Ms. Winsett appealed the Board's 2007 decision to the CAVC, arguing that the Board lacked jurisdiction over her second claim because her first claim was still pending on appeal. The court rejected that argument, noting that the Board has jurisdiction to reopen a case upon submission of new and material evidence. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The court also rejected Ms. Winsett's CUE claim as to the Board's 2005 decision, because that claim had been finally adjudicated by the CAVC and this court, and therefore was law of the case. Winsett v. Shinseki, No. 08-0210, 2010 WL 276193 (Vet. App. Jan. 26, 2010). This court affirmed the CAVC, holding that "there was no error in allowing [Ms. Winsett's] claim to be reopened while the case was on appeal." Winsett v. Shinseki, 397 F. App'x 627, 629 (Fed. Cir. 2010). We further held that we lacked jurisdiction to review the Board's determination that she and Mr. Jacks did not have a common law marriage at the time of Mr. Jacks's death. Id.
More than a year before this court's decision on her second surviving spouse claim, Ms. Winsett filed a thirdsuch claim with the RO on March 27, 2009. The RO denied that claim on April 16, 2009. Ms. Winsett then corresponded with the RO by mail, arguing that the RO had issued its denial too quickly to have reviewed her case properly and that the RO lacked jurisdiction to issue a decision while the denial of her second claim was still on appeal.
On December 6, 2011, the RO agreed with Ms. Winsett that it had lacked jurisdiction to issue its denials of both her January 25, 2005, and March 27, 2009, claims (her second and third claims, respectively) while she had an earlier claim pending on appeal.2 The RO stated that the denial of the January 2005 claim "was already before the Board of Veterans' Appeals before anyone [at the RO] was aware of the situation." The Board's decision, as affirmed by the CAVC and this court, remained legally operable. But as to the denial of the March 2009 claim, the RO did not issue a Statement of the Case and did not respond to Ms. Winsett's Notice of Disagreement, thereby effectively closing her third claim. The RO interpreted Ms. Winsett's communication as a request to reopen the case, and it advised her how she could submit evidence supporting that request.
On February 17, 2012, Ms. Winsett filed a petition for a writ of mandamus in the CAVC. Relying on the RO's admission that it lacked jurisdiction to decide her second claim while the first was still on appeal, she asked the court to declare that the Board had lacked jurisdiction in December of 2007 to affirm the RO's ruling. She asserted that if the Board had waited for this court to rule, it would have been bound by different facts—namely, the facts described in a portion of this court's 2008 opinion affirming the CAVC. See Winsett, 283 F. App'x at 798. Ms. Winsett also requested that the CAVC order the Board to consider her CUE claim.
The CAVC dismissed the petition on April 6, 2012, explaining that this court had already affirmed the Board's decision and had explicitly noted its authority to reopen a case based on new and material evidence. That determination was therefore binding on Ms. Winsett. Moreover, the court held that the Board's denial of Ms. Winsett's CUE claim was proper because that decision had already been affirmed by the CAVC, and the Board therefore could not revise its CUE ruling. Ms. Winsett then took this appeal from the CAVC's dismissal of her mandamus petition. In the meantime, Ms. Winsett submitted a fourth surviving spouse claim to the RO on April 24, 2012.
On May 9, 2012, a little more than a month after her first mandamus petition was dismissed, Ms. Winsett filed a second petition for mandamus in the CAVC. In that petition she argued that the RO had violated her rights under the first and fifth amendments to the Constitution by holding that it lacked jurisdiction to process her appeal from the RO's April 16, 2009, denial of her third surviving spouse claim. The CAVC denied that petition on August 20, 2012. The court held that Ms. Winsett had provided no plausible basis to conclude that the RO's decision regarding its jurisdiction, "even if legally in error," violated her constitutional rights. Winsett v. Shinseki, No. 12-1572, 2012 WL 3554585, at *2 (Vet. App.Aug. 20, 2012). The court further ruled that Ms. Winsett had an alternative avenue to challenge the RO's decision—namely, the April 24, 2012, claim to the RO. Ms. Winsett now appeals from the CAVC's dismissal of that mandamus petition as well.
Ms. Winsett has initiated additional proceedings that bear upon the issues in this case. While her first mandamus petition was pending before the CAVC, Ms. Winsett filed a motion before the Board asserting that the December 21, 2007, Board decision constituted CUE. On August 22, 2012, the Board denied that motion, noting that the CAVC had already determined there was no CUE in the Board's 2007 decision, and that the Board lacked authority to revise that ruling. Ms. Winsett has appealed that decision to the CAVC.
Finally, on August 10, 2012—after the CAVC had dismissed the first mandamus petition but ten days before it ruled on her second mandamus petition—Ms. Winsett filed a third mandamus petition in the CAVC, alleging numerous errors by the court, the RO, and the Board, including an allegation that DVA employees had falsified or destroyed records relating to her various appeals. The CAVC rejected the petition on November 1, 2012, stating that Ms. Winsett had exhausted her appellate rights with respect to the December 21, 2007, Board decisions. Winsett v. Shinseki, No. 12-2664, 2012 WL 5360974, at *5 (Vet. App. Nov. 1, 2012). In addition, the court sanctioned Ms. Winsett for abuse of process; the court stated, "in light of the voluminous, repetitive, and frivolous filings received from Ms. Winsett, both in this case and in the past," that with certain exceptions she would not be permitted to file any further pleadings before the CAVC without moving for permission and paying a filing fee. Id. at *5-7.
On appeal to this court, Ms. Winsett argues that it was improper for the RO to disclaim jurisdiction over herthird surviving spouse claim on the ground that the appeal of her second case was still pending. She points out that the Board had earlier affirmed the RO's denial of her second claim while the first was still pending.
The answer to her argument is that the DVA has jurisdiction to re-open a case if...
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