NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-7011
ERNEST R. ELLIS, SR.,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Ernest R. Ellis, Sr., of Cambridge, Ohio, pro se.
David M. Hibey, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent-appellee. With him on
the brief were Jeffrey S. Buckholtz, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Brian M. Simkin, Assistant Director. Of counsel on the brief was
David J. Barrans, Deputy Assistant General Counsel, United States Department of
Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Robert N. Davis
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-7011
ERNEST R. ELLIS, SR.,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in 07-1009, Judge
Robert N. Davis.
__________________________
DECIDED: February 6, 2008
__________________________
Before MICHEL, Chief Judge, NEWMAN and MOORE, Circuit Judges.
PER CURIAM.
Ernest R. Ellis, Sr. (Mr. Ellis) appeals the decision of the United States Court of
Appeals for Veterans Claims (Veterans Court) in Ellis v. Nicholson, No. 07-1009 (Vet.
App. Jul. 18, 2007), which denied his (1) motion to stay proceedings, (2) motion for a
default judgment, and (3) petition for writ of mandamus alleging that a Department of
Veterans Affairs (VA) regional office (RO) failed to send him a decision by a decision
review officer (DRO) and a notice of his appellate rights. We dismiss for lack of
jurisdiction.
BACKGROUND
On December 17, 2003, the RO issued a Decision Review Officer Decision,
which granted Mr. Ellis a 100% disability rating, retroactive to July 19, 1989, for
generalized anxiety reaction with major depression. Mr. Ellis filed a notice of
disagreement seeking an earlier effective date for generalized anxiety disorder.
On March 3, 2005, the RO allegedly provided Mr. Ellis notice of the appeal
process, instructions concerning his options for venue of his appeal, and a “Select
Option Form.” The VA, however, did not receive notice from Mr. Ellis electing DRO
review within the sixty-day period required by 38 C.F.R. § 3.2600(b), and therefore, on
May 23, 2005, the RO issued a statement of the case. Subsequently, Mr. Ellis sought
review at the Board of Veterans Affairs (Board) by completing a VA Form 9, dated May
26, 2006, in which he requested that the Board remand the case for DRO review. On
August 26, 2006, the RO notified Mr. Ellis that his case was certified to the Board.
On April 4, 2007, Mr. Ellis filed with the Veterans Court a petition for a writ of
mandamus, in which he asserted that VA had not sent to him a decision by a DRO and
a notice of his appellate rights. Mr. Ellis subsequently filed a motion for a stay of
proceedings and additional correspondence requesting the Veterans Court to order the
VA to make a determination. The Secretary of Veterans Affairs filed a response,
explaining that the RO sent correspondence on March 3, 2005 that included notice of
the appeal process and instructions regarding how to request a DRO review of his file.
Mr. Ellis filed a motion for default judgment and opposition to the Secretary’s answer on
June 29, 2007. Also, on July 3, 2007, Mr. Ellis filed additional correspondence
requesting the Veterans Court to grant his earlier motion to stay the proceedings.
2008-7011 2
On July 18, 2007, the Veterans Court issued an order (1) denying Mr. Ellis’s
motion for a stay in the proceedings; (2) denying Mr. Ellis’s motion for a default
judgment; and (3) denying Mr. Ellis’s petition for a writ of mandamus. Mr. Ellis filed
motions for reconsideration on July 23 and 27, 2007, which the Veterans Court denied
on August 27, 2007, explaining that Mr. Ellis failed to “set forth his points of error and
reasoning in a reasonably clear manner.” This appeal followed.
DISCUSSION
The scope of our review of a Veterans Court decision is limited by statute. See
38 U.S.C. § 7292. Under § 7292(a), we may review a decision by the Veterans Court
with respect to the validity 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.” Absent a constitutional issue, we may not review
challenges to factual determinations or challenges to the application of a law or
regulation to facts. Id. § 7292(d)(2).
Mr. Ellis contends that the Veterans Court overlooked his motion in opposition
dated June 27, 2007, motion for reconsideration dated July 21, 2007, and petition for
writ of mandamus dated August 21, 2006. Further, Mr. Ellis contends that this court
should make determinations regarding his motions and petition.
The Veterans Court concluded that a writ of mandamus was not warranted
because the VA’s review was proceeding and Mr. Ellis had not shown that reliance
upon the established appeal process would be inadequate. Ellis, slip op. at 2. It
appears that Mr. Ellis contends that he has shown a clear indisputable right to the writ
and that the Veterans Court improperly denied his petition. However, as these are
2008-7011 3
challenges to the Veterans Court’s application of law to facts or challenges to factual
issues concerning the merits of the petition, our jurisdiction precludes review.
With respect to his motions, Mr. Ellis’s contentions seem to ignore the plain
language of the Veterans Court’s decision, which provided that the motions were
considered and denied. Id. at 2-3. Further, these allegations do not challenge the
validity or interpretation of any statute or regulation relied upon by the Veterans Court,
nor do they challenge the Veterans Court’s decision with respect to a constitutional
issue or a rule of law. Rather, Mr. Ellis’s arguments raise factual issues concerning the
merits of his motions, which we are without jurisdiction to consider.
For the foregoing reasons, we dismiss Mr. Ellis’s appeal for lack of jurisdiction.
2008-7011 4