NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DONALD R. DAVIS,
Claimant-Appellant,
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7120
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-2089, Judge Mary J. Schoelen.
______________________
Decided: December 8, 2014
______________________
DONALD R. DAVIS, of Abilene, Texas, pro se.
P. DAVIS OLIVER, Trial Attorney, Commercial Litiga-
tion 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 ALLISON KIDD-MILLER, Assistant Director.
Of counsel on the brief were Y. KEN LEE, Deputy Assis-
tant General Counsel, and MARTIN J. SENDEK, Attorney,
2 DAVIS v. MCDONALD
United States Department of Veterans Affairs, of Wash-
ington, DC.
______________________
Before PROST, Chief Judge, O’MALLEY, and CHEN, Circuit
Judges.
PER CURIAM.
Donald R. Davis appeals from a decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) dismissing his petition for extraordinary relief in
the form of a writ of mandamus. Davis v. Gibson, No. 14-
2089, 2014 WL 3530921 (Vet. App. July 17, 2014). Be-
cause Davis challenges only factual findings and the
application of law to fact, we dismiss for lack of jurisdic-
tion.
BACKGROUND
Davis served on active duty in the United States Ar-
my from 1979 to 1982. On November 27, 2013, the De-
partment of Veterans Affairs Regional Office (“RO”)
denied Davis’ claim for educational benefits under the
Post-Vietnam Era Veterans’ Educational Assistance
Program (“VEAP”). In that decision, the RO explained
that, because Davis previously received a refund of his
VEAP contributions, there were no funds available for
payment of benefits. Davis filed a notice of disagreement
(“NOD”)—a prerequisite to perfecting an appeal to the
Board of Veterans Appeals (“Board”)—and three subse-
quent NODs. In the fourth NOD, dated April 28, 2014,
Davis disagreed with the RO’s “denial of educational
benefits and/or refusal to return payments made into the
VEAP program.” Respondent’s Appendix (“RA”) 12.
On June 30, 2014, Davis filed a petition for a writ of
mandamus with the Veterans Court seeking an order
compelling the RO to process his appeal to the Board.
The Veterans Court dismissed the petition on July 17,
DAVIS v. MCDONALD 3
2014. Although the court acknowledged its authority to
issue extraordinary writs pursuant to the All Writs Act,
28 U.S.C. § 1651(a), it explained that the “remedy of
mandamus is a drastic one, to be invoked only in extraor-
dinary situations.” Davis, 2014 WL 3530921, at *1 (quot-
ing Kerr v. United States District Court, 426 U.S. 394, 402
(1976)). The Veterans Court further explained that three
conditions had to be met before it could issue the writ:
(1) the petitioner must “lack adequate alternative means
to attain the desired relief;” (2) the petitioner must
“demonstrate a clear and indisputable right to the writ;”
and (3) the court must be convinced that the writ is ap-
propriate under the circumstances. Id. (citing Cheney v.
United States District Court, 542 U.S. 367, 380-81 (2004)).
The Veterans Court found that “the time that has
elapsed between the petitioner’s April 28, 2014, NOD and
the filing of this petition does not amount to an extraordi-
nary delay that is tantamount to an arbitrary refusal to
act.” Davis, 2014 WL 3530921, at *1 (citing Costanza v.
West, 12 Vet. App. 133, 134 (1999); Bullock v. Brown, 7
Vet. App. 69, 69 (1994) (“The mere passage of time in
reviewing a matter does not necessarily constitute the
extraordinary circumstances requiring this Court to
invoke its mandamus power.”)). Because Davis failed to
demonstrate “a clear and indisputable right to the writ,”
the Veterans Court dismissed the petition. Id. (citation
omitted).
Davis appealed the Veterans Court’s decision to this
court seeking to invoke our jurisdiction under 38 U.S.C.
7292(a).
DISCUSSION
Our jurisdiction to review Veterans Court decisions is
limited by statute. Pursuant to 38 U.S.C. § 7292(a), the
court may review “the validity of a decision of the [Veter-
ans] Court on a rule of law or of any statute or regulation
. . . or any interpretation thereof (other than a determi-
4 DAVIS v. MCDONALD
nation as to a factual matter) that was relied on by the
[Veterans] Court in making the decision.” Except with
respect to constitutional issues, we “may not review (A) a
challenge to a factual determination, or (B) a challenge to
a law or regulation as applied to the facts of a particular
case.” 38 U.S.C. 7292(d)(2).
This limited jurisdiction extends to our review of the
Veterans Court’s dismissal of a petition for a writ of
mandamus. See Beasley v. Shinseki, 709 F.3d 1154, 1158
(Fed. Cir. 2013); see also Lamb v. Principi, 284 F.3d 1378,
1381-82 (Fed. Cir. 2002). Specifically, we have jurisdic-
tion “to review the [Veterans Court’s] decision whether to
grant a mandamus petition that raises a non-frivolous
legal question,” but cannot “review the factual merits of
the veteran’s claim.” Beasley, 709 F.3d at 1158. Nor can
we interfere with the Veterans Court’s “role as the final
appellate arbiter of the facts underlying a veteran’s claim
or the application of veterans’ benefits law to the particu-
lar facts of a veteran’s case.” Id.
On appeal, Davis argues that the Veterans Court
abused its discretion in dismissing his petition for a writ
of mandamus. According to Davis, the time period that
elapsed between his NODs and his filing of the petition
demonstrates extraordinary delay and he is entitled to a
writ to compel the RO to process his appeal. As explained
below, these arguments challenge only the Veterans
Court’s fact-finding and application of law to the facts of
Davis’ case, matters which are beyond the scope of this
court’s jurisdiction. See Conway v. Principi, 353 F.3d
1369, 1372 (Fed. Cir. 2004) (“[W]hile we can review ques-
tions of law, we cannot review applications of law to
fact.”).
As the Veterans Court recognized, Davis’ petition is
based on his “frustration with VA’s adjudication of his
claim.” Davis, 2014 WL 3530921, at *1. The Veterans
Court found that the time that had elapsed between
DAVIS v. MCDONALD 5
Davis’ April 28, 2014 NOD and the filing of his manda-
mus petition two months later did not amount to “ex-
traordinary delay that is tantamount to an arbitrary
refusal to act,” and concluded that Davis had failed to
demonstrate that he had a “clear and indisputable right
to the writ” under Cheney. Id. Thus the Veterans Court’s
decision involved both a fact-finding—that the alleged
delay on the part of the RO was not “extraordinary”—and
an application of law to fact—that Davis did not show a
“clear and indisputable” right to the writ. These issues
are outside the scope of our jurisdiction. See 38 U.S.C.
§ 7292(d)(2).
Despite Davis’ suggestion to the contrary, the Veter-
ans Court’s decision did not involve any questions regard-
ing the validity or interpretation of a statute or
regulation. In his informal brief on appeal, Davis cites 38
C.F.R. § 20.904(a)(2)—which authorizes the Board to
vacate a decision when a statement of the case was not
provided—but fails to explain how the Veterans Court
misinterpreted this regulation. In fact, the Veterans
Court neither cited nor interpreted section 20.904(a)(2). 1
Davis further alleges that the Veterans Court’s deci-
sion is contrary to its holdings in Ribaudo v. Nicholson, 20
Vet. App. 552 (2007) and Costanza v. West, 12 Vet. App.
133, 134 (1999). But these cases state that, “[w]hen delay
is alleged as the basis for a petition . . . a clear and indis-
putable right to the writ does not exist unless the peti-
tioner demonstrates that the alleged delay is so
extraordinary, given the demands on and resources of the
Secretary, that it is equivalent to an arbitrary refusal by
the Secretary to act.” Ribaudo, 20 Vet. App. at 555 (citing
1 Although Davis points to 38 U.S.C. §§ 511(a),
7104(a), and 7105 in his informal reply brief, the Veterans
Court did not cite, much less interpret, those statutory
provisions.
6 DAVIS v. MCDONALD
Costanza, 12 Vet. App. at 134). Citing Costanza, the
Veterans Court applied this law to the facts of Davis’ case
and found that there was no “extraordinary delay.”
Davis, 2014 WL 3530921, at *1. Again, because Davis’
arguments challenge the Veterans Court’s fact-finding
and application of established law, they are beyond our
jurisdiction.
Finally, Davis appears to assert a violation of his con-
stitutional rights. According to Davis, the Veterans Court
“erred in not finding the inactions of the RO to be in
violation of [his] due process rights and access to court
right.” Appellant Informal Br. 2. Although Davis alleges
that his constitutional rights were violated, the Veterans
Court’s decision did not decide any constitutional issues,
and merely characterizing arguments as constitutional
does not make them so. See Belton v. Shinseki, 524 F.
App’x 703, 706 (Fed. Cir. 2013) (“Belton’s characterization
of his arguments as constitutional does not make them
so.”).
Setting aside the “due process” label, Davis’ argu-
ments appear to be directed to the merits of his claim, and
thus do not give rise to a separate constitutional issue.
See Flores v. Nicholson, 476 F.3d 1379, 1382 (Fed. Cir.
2007) (finding that, despite the appellant’s attempt to
characterize the issue in terms of an equal protection
violation, we lacked jurisdiction to consider it because her
“argument on this point appears to be aimed at the merits
of her claim and does not raise a separate constitutional
issue”). Specifically, Davis objects to the speed of the
Secretary’s actions and challenges the Veterans Court’s
factual finding that there has been no extraordinary delay
in the adjudication of his claim. Because Davis’ argu-
ments are constitutional in name only, they are outside
our jurisdiction. See Helfer v. West, 174 F.3d 1332, 1335
(Fed. Cir. 1999) (explaining that the “characterization of
[a] question as constitutional in nature does not confer
upon us jurisdiction that we otherwise lack.”). We have
DAVIS v. MCDONALD 7
considered all of Davis’ arguments and conclude that none
of them raise a non-frivolous legal question sufficient to
support this court’s exercise of jurisdiction.
CONCLUSION
For the foregoing reasons, we dismiss this appeal for
lack of jurisdiction.
DISMISSED
COSTS
No costs.