NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
STEVEN A. SPEAR,
Claimant-Appellant,
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7114
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-1160, Judge Mary J. Schoelen.
______________________
Decided: December 8, 2014
______________________
STEVEN A. SPEAR, of Crawfordville, Florida, pro se.
GREGG PARIS YATES, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With him on the brief were JOYCE R. BRANDA, Acting
Assistant Attorney General, ROBERT E. KIRSCHMAN, JR.,
Director, and SCOTT D. AUSTIN, Assistant Director. Of
counsel on the brief were Y. KEN LEE, Deputy Assistant
General Counsel, and TRACEY PARKER WARREN, Attorney,
2 SPEAR v. MCDONALD
United States Department of Veterans Affairs, of Wash-
ington, DC.
______________________
Before DYK, WALLACH, and HUGHES, Circuit Judges.
PER CURIAM.
Steven A. Spear appeals the U.S. Court of Appeals for
Veterans Claims’ denial of his petition for a writ of man-
damus. Mr. Spear’s petition sought a writ of mandamus
to direct the Board of Veterans’ Appeals to act on his
appeal of a claim to recover benefits that were allegedly
unlawfully applied to satisfy an overpayment due to his
incarceration. Because Mr. Spear has not raised any
issue of law that falls within our limited jurisdiction, we
dismiss the appeal.
I
Mr. Spear has filed a number of petitions for writ of
mandamus with the Veterans Court, requesting it to
order the Board to act on his February 2011 appeal of a
claim to recover benefits that were allegedly unlawfully
applied to satisfy an overpayment due to his incarcera-
tion. See Spear v. Shinseki, No. 14-1160, 2014 WL
2112964 (Vet. App. May 21, 2014) (Spear IV); Spear v.
Shinseki, No. 13–2485, 2013 WL 6020010 (Vet. App. Nov.
14, 2013) (Spear III); Spear v. Shinseki, No. 12–3692,
2013 WL 500844 (Vet. App. Feb. 12, 2013) (Spear
II); Spear v. Shinseki, No. 12–1495, 2012 WL 3064856
(Vet. App. July 30, 2012) (Spear I). Each of these peti-
tions has been denied.
In response to Mr. Spear’s November 2013 petition,
the Secretary of Veterans Affairs notified the Veterans
Court that the Board had issued a decision on October 22,
2013, remanding his appeal to the Regional Office for
further development. Spear III, 2013 WL 6020010, at
*1. Specifically, the Board had directed the Regional
SPEAR v. MCDONALD 3
Office to contact the correctional institution where
Mr. Spear is incarcerated to schedule a videoconference
hearing or, if a hearing could not be scheduled, to inform
Mr. Spear of alternatives to offering personal testimony.
Spear IV, 2014 WL 2112964, at *1 (citing Steven Spear,
BVA 09–27823A (Oct. 22, 2013)). Accordingly, the Veter-
ans Court denied his November 2013 petition as moot.
Spear III, 2013 WL 6020010, at *2.
On April 14, 2014, Mr. Spear filed the petition for writ
of mandamus at issue here. Spear IV, 2014 WL 2112964,
at *1. The Veterans Court noted that the Regional Office
still had not issued a final decision on Mr. Spear’s claim.
Id. However, it found that Mr. Spear had not shown that
he had a clear and indisputable right to the writ, because
the six-month delay between the Board’s October 22, 2013
remand and the filing of the petition-at-issue was not an
extraordinary delay equivalent to an arbitrary refusal to
act. Id. On July 9, 2014, the Veterans Court granted
Mr. Spear’s motion for a panel decision and adopted the
Veterans Court’s May 21, 2014 decision in full. Spear v.
Gibson, No. 14-1160, 2014 WL 3339603 (Vet. App. Jul. 9,
2014). Mr. Spear appeals.
II
This court’s jurisdiction to review decisions of the
Veterans Court is limited. See 38 U.S.C. § 7292. We may
review “the validity of a decision of the [Veterans] Court
on a rule of law or 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.” Id. § 7292(a), (d)(1). But
we do not have jurisdiction to review a challenge to a
factual determination or a challenge to a law or regula-
tion as applied to the facts of a particular case, except to
the extent an appeal presents a constitutional is-
sue. Id. § 7292(d)(2). For appeals involving a denial of a
petition for writ of mandamus, we have jurisdiction to
4 SPEAR v. MCDONALD
review the denial if it “raises a non-frivolous legal ques-
tion.” Beasley v. Shinseki, 709 F.3d 1154, 1158 (Fed. Cir.
2013). Still, however, “[w]e may not review the factual
merits of the veteran’s claim.” Id.
Mr. Spear appears to raise two main issues on appeal:
(1) whether the Department of Veterans Affairs improper-
ly withheld disability payments in violation of 38 U.S.C.
§§ 5313 and 7111; and (2) whether the Veterans Court
violated § 7261(a)(2) or Veterans Court Rule 47 by deny-
ing his petition for a writ of mandamus directing the
Board to act on his appeal.
Neither of these issues raises a legal question within
our jurisdiction. First, the Veterans Court’s decision does
not consider or otherwise rely on §§ 5313 and 7111. The
only issue before the Veterans Court was whether
Mr. Spear was entitled to a writ of mandamus due to the
Board’s delay. Accordingly, Mr. Spear’s first argument
does not raise any question of law “relied on by the [Vet-
erans] Court in making the decision.” 38 U.S.C.
§ 7292(a).
Second, whether Mr. Spear satisfied the requirements
for a writ of mandamus is a challenge to the Veterans
Court’s application of law to facts, over which we have no
jurisdiction. See Beasley, 709 F.3d at 1158.
Mr. Spear also argues that the Veterans Court’s fail-
ure to grant the writ of mandamus violates his due pro-
cess rights. However, this argument appears to simply
put a due process label on his arguments that are based
on the Code and the Veterans Court’s Rules. Thus, this
argument is no more than an invocation of a constitution-
al label, which is not enough to sidestep the congression-
ally-prescribed limits on this court’s jurisdiction over
review of factual matters and applications of law to
fact. See Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir.
1999).
SPEAR v. MCDONALD 5
Because Mr. Spear has not raised any issue within
our limited jurisdiction, we must dismiss his appeal.
DISMISSED
No costs.