NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MARK C. JACKSON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7028
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 10-908, Chief Judge William
P. Greene, Jr.
___________________________
Decided: May 20, 2011
___________________________
MARK C. JACKSON, Starke, Florida, pro se.
KIMBERLY I. KENNEDY, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With her on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director,
JACKSON v. DVA 2
and KIRK MANHARDT, Assistant Director. Of counsel on
the brief was F. JOHN BRIZZI, JR., Deputy Assistant Gen-
eral Counsel, United States Department of Veterans
Affairs, of Washington, DC.
__________________________
Before BRYSON, CLEVENGER, and PROST, Circuit Judges.
PER CURIAM.
DECISION
Mark C. Jackson petitions this court for a writ of
mandamus ordering the Secretary of Veterans Affairs to
pay disability benefits, lost wages, and punitive and
compensatory damages for delay in evaluating his reha-
bilitation claim. He also seeks orders compelling the
restoration of his federal retirement status, mandating
the State of Florida to restore his driving privileges, and
requiring the deletion of derogatory content from a credit
report. We deny the petition.
BACKGROUND
Mr. Jackson served in the military from 1989 to 1993.
He has a service-connected disability based on an injury
to his right foot. In August 2003, Mr. Jackson presented
himself for treatment of that injury. He had surgery on
his ankle and underwent a period of convalescence during
which he was totally disabled. The Board of Veterans’
Appeals has since determined that the period of convales-
cence lasted from August 26, 2003, to February 29, 2004.
On July 20, 2003, before his surgery and convalescence,
Mr. Jackson applied for vocational rehabilitation and
education benefits. A rehabilitation plan was not drawn
up until January 2005 because, according to the Depart-
ment of Veterans Affairs (“DVA”), Mr. Jackson’s surgery
3 JACKSON v. DVA
and recuperation “made it difficult to develop a meaning-
ful plan to address the veteran’s career needs.”
The plan that was ultimately drawn up indicated that
Mr. Jackson would secure admission to the University of
Florida by August 2005 and complete one academic year
of training beginning at that time. The plan further
indicated that Mr. Jackson would be provided several
services, including “tuition, fees, textbooks, [and a] com-
puter system plus a limited number of consumable sup-
plies.” On May 20, 2005, the plan was altered to indicate
that Mr. Jackson would complete his associate’s degree at
South Florida Community College before transferring to
the University of Florida.
After one semester, Mr. Jackson’s rehabilitation bene-
fits were terminated based on a determination that a
vocational goal was not feasible for him. Mr. Jackson
then reapplied for benefits, but his application was denied
on March 27, 2006, for several reasons including his lack
of a driver’s license, his difficulty attending rehabilitation
appointments, and his indications to the Social Security
Administration and the Department of Veterans Affairs
(“DVA”) that he was not capable of working. Mr. Jackson
appealed that denial to the Board on April 10, 2006. He
also appealed several disability benefits determinations.
On October 6, 2006, the Board addressed Mr. Jack-
son’s appeal in two decisions, one addressing disability
benefits and the other addressing rehabilitation benefits.
As to the disability benefits, the Board denied most of his
claims, but it remanded some of his claims for further
development. As to the rehabilitation benefits, the Board
found that Mr. Jackson did not receive proper notice of
what evidence the DVA was required to provide and what
evidence he would be required to provide under the Vet-
JACKSON v. DVA 4
erans’ Claims Assistance Act of 2000 (“VCAA”). Accord-
ingly, the Board remanded Mr. Jackson’s appeal on
rehabilitation benefits to the regional office via the Ap-
peals Management Center ("AMC"), instructing the AMC
to (1) inform Mr. Jackson of what he needed to present in
order to prevail on his claim and (2) ensure that he re-
ceived notifications pursuant to the VCAA. The Board
decision noted that Mr. Jackson’s claim must be afforded
“expeditious treatment” on remand.
When there was little progress on remand, Mr. Jack-
son filed a petition for a writ of mandamus in the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) on February 14, 2008. That petition requested an
order compelling the Secretary to pay past due benefits,
punitive damages, and lost wages. The Veterans Court
denied that petition because Mr. Jackson did not show
that he had a “clear and indisputable right to the writ.”
Mr. Jackson appealed that decision to this court, which
affirmed on December 17, 2008. We noted that we “un-
derst[ood] Mr. Jackson’s impatience with the lack of final
resolution of his claim,” but we concluded that the Veter-
ans Court did not abuse its discretion in denying the writ.
Jackson v. Peake, 303 Fed. App’x 881, 884 (Fed. Cir.
2008).
While that appeal was pending in this court, Mr.
Jackson filed a second petition for a writ of mandamus in
the Veterans Court on September 17, 2008. The Veterans
Court ordered the Secretary to file an answer to the
petition. On October 9, 2008, the Secretary advised the
court that Mr. Jackson’s claim for rehabilitation benefits
had been denied by the DVA regional office in a January
11, 2008, Supplemental Statement of the Case (“SSOC”).
That SSOC was pending at the Board when the Veterans
Court denied Mr. Jackson’s second petition for a writ of
5 JACKSON v. DVA
mandamus on November 21, 2008. Mr. Jackson appealed
that denial to this court, and we affirmed on May 7, 2009.
In January 2009, the regional office further developed
Mr. Jackson’s disability claims through a medical exami-
nation. The office did not perform any further work on
his claim for rehabilitation benefits, since that claim had
been denied in the January 2008 SSOC. Mr. Jackson
filed another appeal with the Board addressing both
issues. The Board advanced his appeal on its docket
under 38 C.F.R. § 20.900(c). On September 8, 2009, the
Board again remanded both issues to the regional office.
The Board remanded the disability benefits claim for
further medical evaluation and to provide Mr. Jackson an
opportunity to present testimony in support of his case.
The Board remanded the rehabilitation benefits determi-
nation to the regional office because the AMC did not give
Mr. Jackson the notice required by the remand instruc-
tions in the Board’s October 2006 decision. The Board
therefore instructed that on remand Mr. Jackson be given
the notice required by the VCAA and that he be given an
opportunity to testify in support of his claim. In remand-
ing both claims, the Board stated in boldface type
“[e]xpedited handling is requested.” Mr. Jackson ap-
pealed the rehabilitation benefits remand to the Veterans
Court, but the court dismissed that appeal for lack of
jurisdiction because it was not a final decision.
On remand, Mr. Jackson received the required VCAA
notification and was given an opportunity to testify. On
December 4, 2009, the regional office also restored Mr.
Jackson’s entitlement to a 20% rating for his right foot
injury effective March 1, 2004. Although the regional
office recognized that the new 20% disability rating
affected Mr. Jackson’s entitlement to rehabilitation
benefits by rendering him eligible for independent living
JACKSON v. DVA 6
services, the office did not immediately evaluate Mr.
Jackson’s entitlement to rehabilitation benefits because it
transferred his claim folder to the Office of the General
Counsel for use in pending appellate litigation. The claim
folder was transferred on January 29, 2010, and was not
returned to the regional office until May 28, 2010.
On March 18, 2010, Mr. Jackson filed a third petition
for a writ of mandamus with the Veterans Court. That
petition requested an order compelling the Secretary to
“pay lost wages as a computer systems analys[t] in the
amount of $120,000 per year for every year that VA has
maliciously postponed [his] career.” The court denied that
petition on June 30, 2010, noting that it understood Mr.
Jackson’s frustration with the delay but concluding that
he had not shown the delay to be unreasonable.
On November 17, 2010, Mr. Jackson filed a brief with
this court that appears to constitute a new petition for a
writ of mandamus. In that brief, he requests different
relief than he requested in the March 2010 petition to the
Veterans Court. For example, his submission to this
court seeks $145,000 per year for lost wages instead of
$120,000 per year. The government’s response brief
claims that Mr. Jackson is appealing the Veterans Court’s
denial of his March 2010 mandamus petition. Mr. Jack-
son does not take issue with the government’s characteri-
zation in his reply brief.
On April 7, 2011, this court requested that the Secre-
tary provide us with an account of the current status of
Mr. Jackson’s claim for rehabilitation benefits and ex-
plain the DVA’s practice with respect to stopping benefits
determinations while claim folders are transferred for
appellate litigation. The Secretary responded on May 5,
2011. With respect to the transferring of claim folders,
7 JACKSON v. DVA
the Secretary explained that the DVA takes several
precautions to ensure that benefits determinations are
not unnecessarily delayed during appellate litigation, but
that some delays are unavoidable because the system is
based on the use of hard-copy files.
As to the current status of Mr. Jackson’s rehabilita-
tion benefits claim, the Secretary explained that he was
determined to be eligible for rehabilitation benefits and
an evaluation begun on June 25, 2010. The Secretary
added, however, that Mr. Jackson did not complete sev-
eral forms required for the entitlement determination
despite multiple requests to do so. Mr. Jackson’s Vocation
Rehabilitation Counselor had concerns about his employ-
ability, so Mr. Jackson was offered an extended evalua-
tion plan to assist in determining if a vocational goal
would be feasible. In December 2010, Mr. Jackson re-
fused to participate in the proposed extended evaluation
plan. Instead, he insisted that he be placed in a training
program. The counselor did not believe that retraining
was appropriate, and he closed Mr. Jackson’s file on
January 21, 2011.
Mr. Jackson also responded to this court’s April 7,
2011, letter. In his response, he requested that the court
order the government to investigate a variety of issues,
including his brother’s murder, proceedings in other
courts, dealings with the Armed Forces, and interactions
with the State of Florida and West Virginia University.
DISCUSSION
Mr. Jackson requests an order from this court compel-
ling the Secretary to pay past due disability benefits, lost
wages, and punitive and compensatory damages. He
claims entitlements to those payments based on allega-
JACKSON v. DVA 8
tions that the Secretary committed a prohibited personnel
practice under 5 U.S.C. § 2302 and violated the First and
Fifth Amendments by canceling his rehabilitation benefits
without due process.
We construe Mr. Jackson’s brief as a petition for a
writ of mandamus to this court, not an appeal from a
denial of his mandamus petition at the Veterans Court. A
writ of mandamus is a “drastic and extraordinary” rem-
edy “reserved for really extraordinary causes.” Ex parte
Fahey, 332 U.S. 258, 259-60 (1947). This court can issue
the writ only if three conditions are satisfied: (1) the
petitioner must have no other adequate means to attain
the relief he desires; (2) the petitioner must demonstrate
a clear and indisputable right to the issuance of the writ;
and (3) this court must be convinced that the circum-
stances warrant issuance of the writ. Cheney v. U.S. Dist.
Court, 542 U.S. 367, 380-81 (2004).
Mr. Jackson has failed to show a clear and indisput-
able right to relief based on alleged prohibited personnel
practices under 5 U.S.C. § 2302 because has not shown
that he was an employee of the federal government or an
applicant seeking employment with the federal govern-
ment.
He has also failed to show an indisputable violation of
due process based on the cancellation of his rehabilitation
benefits without timely review. The long delay in resolv-
ing his entitlement to rehabilitation benefits is certainly
regrettable. The Board found that delay was due in part
to the AMC’s failure to follow the Board’s October 2006
remand instructions. The Veterans Court held, however,
that the AMC’s failure was not sufficient to make the
delay unreasonable, and we agree. It is unfortunate that
the delay appears to have been exacerbated by Mr. Jack-
9 JACKSON v. DVA
son’s multiple mandamus petitions, but the regional office
appears to have acted expeditiously in handling Mr.
Jackson’s claims after the September 2009 remand.
Even if the regional office had failed to act expedi-
tiously in handling his claims on remand, Mr. Jackson
has not shown a clear and indisputable right to the par-
ticular relief he has requested in this action. In his filing
in this court, he requests an order compelling the Secre-
tary to pay past due disability benefits, lost wages valued
at $145,000 per year, and $13,800,000 in damages with-
out showing why he is entitled to such relief. Similarly,
he requests restoration of his federal retirement status
without explaining why he is entitled to such relief. We
therefore deny Mr. Jackson’s petition with respect to
those requests.
Mr. Jackson’s other requests involving his driver’s li-
cense, credit report, brother’s murder, proceedings in
other courts, and interactions with the State of Florida
and West Virginia University are outside of our jurisdic-
tion to address. Accordingly, he is not entitled to relief
from this court as to those requests.
No costs.
MANDAMUS DENIED