NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HOWARD W. NEWGARD,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS
Respondent-Appellee
______________________
2015-7062
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-4359, Judge Robert N. Davis.
______________________
Decided: November 10, 2015
______________________
HOWARD W. NEWGARD, Spencer, IA, pro se.
ROBERT M. NORWAY, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
ALLISON KIDD-MILLER.
______________________
Before LOURIE, REYNA, and CHEN, Circuit Judges.
2 NEWGARD V. MCDONALD
PER CURIAM.
Howard W. Newgard (“Newgard”) appeals from the
final decision of the United States Court of Appeals for
Veterans Claims (the “Veterans Court”) denying his
petition for extraordinary relief in the form of a writ of
mandamus. See Newgard v. McDonald, No. 14-4359,
2015 WL 507146 (Vet. App. Feb. 6, 2015). Because New-
gard’s arguments challenge only the Veterans Court’s
application of law to fact, we dismiss for lack of jurisdic-
tion.
BACKGROUND
Newgard served in the United States Army from Jan-
uary 1969 through October 1969. During training, he fell
and injured his left knee. As a result, he was hospitalized
for nearly a month and given a medical discharge. New-
gard has sought disability benefits for this injury since
1970, including appeals of rating decisions, claims of clear
and unmistakable error (“CUE”), and two prior appeals to
this court. See, e.g., Newgard v. Shinseki, 565 F. App’x
879 (Fed. Cir. 2014); Newgard v. Shinseki, 412 F. App’x
291 (Fed. Cir. 2011).
In December 2012, Newgard submitted a CUE claim
to the Des Moines, Iowa Regional Office (“RO”), alleging
that the RO committed CUE by denying his original claim
for disability benefits. The RO responded on July 3, 2013,
with a letter indicating that it would not act on Newgard’s
claim because the issues he raised had been previously
addressed.
Newgard then filed a petition for a writ of mandamus
at the Veterans Court on December 17, 2014, in which he
asked the Veterans Court to compel the RO to process his
December 2012 claim. The next day, he received a
Statement of the Case from the RO regarding that claim.
Newgard filed an amended petition in January 2015
reflecting that he had received the Statement of the Case,
NEWGARD V. MCDONALD 3
but insisted that he was still entitled to a writ of manda-
mus because the Statement of the Case allegedly did not
address the actual issues raised in his December 2012
claim.
The Veterans Court denied Newgard’s petition on
February 6, 2015, concluding that the RO’s issuance of
the Statement of the Case rendered the petition moot, and
that Newgard did not meet the legal requirements for
obtaining a writ of mandamus because his allegations
could be addressed through an appeal to the Board of
Veterans Appeals.
Newgard timely appealed to this court, seeking to in-
voke our jurisdiction under 38 U.S.C. § 7292.
DISCUSSION
The scope of our review in an appeal from a Veterans
Court decision is limited. We may review a Veterans
Court decision with respect to the validity of a decision on
a rule of law or the validity or interpretation of any stat-
ute or regulation that was relied upon by the Veterans
Court in making the decision. 38 U.S.C. § 7292(a). We
may also review a Veterans Court decision with respect to
legal questions raised in an appeal that challenge the
Veterans Court’s denial of a petition for a writ of manda-
mus. Lamb v. Principi, 284 F.3d 1378, 1381–82 (Fed. Cir.
2002). Except with respect to constitutional issues, we
“may not review (A) a challenge to a factual determina-
tion, 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).
Newgard does not argue that the Veterans Court mis-
stated the legal standard for evaluating whether to grant
a writ of mandamus, and does not argue that the Veter-
ans Court interpreted or elaborated upon the meaning of
any statute or regulation. Instead, Newgard argues that
the Veterans Court erred in denying his petition because
the Veterans Court misconstrued or did not address his
4 NEWGARD V. MCDONALD
arguments, Appellant’s Br. 6–16, and because he meets
the requirements for issuance of a writ of mandamus, id.
25–30. The Secretary responds that those arguments
challenge the Veterans Court’s application of the law to
the facts of Newgard’s case, which is a matter outside of
our jurisdiction. We agree. Rather than challenge the
legal standard applied by the Veterans Court, Newgard’s
arguments only challenge the manner in which the Veter-
ans Court applied the law to the facts. See 38 U.S.C. §
7292(d)(2); Payne v. McDonald, 587 F. App’x 649, 651
(Fed. Cir. 2014).
Newgard further alleges that his due process rights
were violated when the RO allegedly deliberately with-
held documents relevant to his service and injury. Appel-
lant’s Br. 16–21. The Secretary responds that this
argument is in substance an attempt to relitigate the
merits of Newgard’s previously-denied CUE allegation.
Appellee’s Br. 20–22.
We consider that Newgard’s constitutional argument
need not be decided at this point. His claim for benefits,
including the allegedly withheld documents, is currently
pending with the RO. Thus, the RO provides an alterna-
tive remedy for Newgard’s claims, which makes New-
gard’s constitutional argument inappropriate for
mandamus.
Newgard also raises arguments regarding the merits
of his case. The narrow jurisdictional question, however,
is only whether Newgard has alleged that the Veterans
Court committed legal error in denying his petition for a
writ of mandamus. Because he has only challenged the
manner in which the Veterans Court applied established
law to the facts of his case, the appeal must be dismissed.
NEWGARD V. MCDONALD 5
CONCLUSION
We have considered Newgard’s remaining arguments,
but find them unpersuasive. For the foregoing reasons,
the appeal is dismissed for lack of jurisdiction.
DISMISSED
COSTS
No costs.