Winsett v. Nicholson

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.

United States Court of Appeals for the Federal Circuit
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SHEILA WINSETT,

Claimant-Appellant,

R. JAMES NICHOLSON, Secretary of Veterans Affairs,

Respondent-Appellee.

___________________________

DECIDED: March 15, 2006
___________________________

Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and DYK, Circuit
Judge.

RADER, Circuit Judge.

The United States Court of Appeals for Veterans Claims denied Sheila Winsett’s

informal “Petition for Rule Nisi,” which the Veterans Court construed as a motion for

extraordinary relief in the nature of a writ of mandamus. Winsett v. Nicholson, No. 04-

1448 (Vet. App. April 14, 2005) (Order). Because the Veterans Court did not err in

treating Ms. Winsett’s petition as one for a writ of mandamus, and because the

Veterans Court did not abuse its discretion in denying her petition, this court affirms.

BACKGROUND

Ms. Winsett has been a plaintiff in a number of appeals to this court concerning:

the service connection for the death of Mr. Gary Jacks; the denial of Ms. Winsett’s

status as a surviving spouse of Mr. Jacks; and the entitlement to accrued benefits of Mr.
Jacks’ two adult children. See In re Winsett, 90 Fed. Appx. 398 (Fed. Cir. 2004);

Winsett v. Principi, 341 F.3d 1329 (Fed. Cir. 2003); Winsett v. Principi, 65 Fed. Appx.

301 (Fed. Cir. 2003); and Winsett v. West, 217 F.3d 854 (Fed. Cir. 1999).

In 2003, Ms. Winsett appealed three decisions of the Board of Veterans Appeals

(the Board) to the Veterans Court, which were subsequently remanded to the Board.

Winsett v. Principi, 18 Vet. App. 419 (2003) (Remand Decision). On May 18, 2004, the

Board remanded the matter to a Regional Office (RO). On July 30, 2004, after a

hearing, the RO issued a Supplemental Statement of the Case (SSOC) and sent a copy

to Ms. Winsett. With that copy, the RO included a cover letter advising Ms. Winsett that

her records would be returned to the Board for further adjudication if the RO did not

receive any additional information from her within sixty days. See Order, slip op. at 1.

On August 16, 2004, Ms. Winsett filed an informal petition, styled “Petition for Rule Nisi,”

with the Veterans Court. Ms. Winsett also filed a number of “informal correspondence”

documents and motions with the Veterans Court between September 2004 and March

2005. See id. The Veterans Court construed Ms. Winsett’s “Petition for Rule Nisi” as a

motion for extraordinary relief in the nature of a writ of mandamus, which alleged that

the Secretary of Veterans Affairs had failed to comply with the Veterans Court’s

Remand Decision. Order, slip op. at 1. The Veterans Court denied the petition,

concluding that Ms. Winsett had not proved that she was entitled to such a writ or that

alternative remedies were unavailable. Id.

DISCUSSION

Although this court’s jurisdiction to review decisions by the Veterans Court is

limited by 38 U.S.C. § 7292, review of decisions under the All Writs Acts, 28 U.S.C.

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§ 1651(a) is not so limited. Lamb v. Principi, 284 F.3d 1378, 1381-82 (Fed. Cir. 2002).

This court reviews the denial of a petition for a writ of mandamus by the Veterans Court

for abuse of discretion. Id. at 1384.

The Veterans Court was correct to construe Ms. Winsett’s informal petition as a

motion for extraordinary relief in the nature of a writ of mandamus. Ms. Winsett has not

directed this court to any legal basis for her petition that would make her request for

relief distinct from a petition for a writ of mandamus. Moreover, rules nisi are not a

creature of federal law. See 5 Charles Alan Wright & Arthur R. Miller, Federal Practice

and Procedure § 1195 (3d ed. 2004) (“[R]ules nisi are not provided for in the Federal

Rules of Civil Procedure.”).

To obtain mandamus, 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.’” Lamb, 284 F.3d at 1382 (quoting Kerr v. United States Dist. Court, 426 U.S.

394, 403 (1976)). In addition, the issuance of a writ of mandamus is “in large part a

matter of discretion with the court to which the petition is addressed.” Kerr, 426 U.S. at

403 (citing Schlagenhauf v. Holder, 379 U.S. 104, 112 n. 8 (1964); Parr v. United

States, 351 U.S. 513, 520 (1956)). Although Ms. Winsett devotes a substantial portion

of her brief to restating and rearguing factual issues with respect to her claims, this court

agrees with the Veterans Court that Ms. Winsett has failed to explain why she cannot

address the issues in her petition with the Board. Ms. Winsett filed her petition with the

Veterans Court only seventeen days after the RO issued its SSOC, well within the sixty

days provided to Ms. Winsett to provide additional information to the RO before her

case would be returned to the Board for further adjudication. Moreover, the RO issued

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the SSOC less than one year after the remand of the case by the Veterans Court to the

Board. Although Ms. Winsett is frustrated with the duration of this process, her

frustration does not entitle her to a writ of mandamus. "The extraordinary writs cannot

be used as substitutes for appeals, even though hardship may result from delay and

perhaps unnecessary trial . . . ." Lamb, 284 F.3d at 1384 (quoting Bankers Life & Cas.

Co. v. Holland, 246 U.S. 379, 383 (1953)). In her brief to this court, Ms. Winsett relies

on Stegall v. West, 11 Vet. App. 268 (1998), for a number of propositions, including that

the Veterans Court can be petitioned to direct the Secretary to comply with a remand

order. Appellant’s Br. at 12. While not commenting on Stegall itself, this court notes

that Stegall concerned an appeal to the Veterans Court of a decision by the Board,

which the Veterans Court then vacated. Stegall, 11 Vet. App. at 269. Rather than

raising these issues with the Board like the appellant in Stegall, Ms. Winsett is

attempting to circumvent the standard administrative appellate process through her

petition to this court.

Because Ms. Winsett has not demonstrated a clear and indisputable right to such

relief or that alternative avenues of relief were unavailable, the Veterans Court was well

within its discretion in concluding that Ms. Winsett is not entitled to a writ of mandamus,

and its decision is affirmed.

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