NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PAMELA MELVIN,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2017-1550
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-1015, Judge William Green-
berg.
______________________
Decided: August 17, 2017
______________________
PAMELA MELVIN, Fayetteville, NC, pro se.
MEEN GEU OH, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., ALLISON
KIDD-MILLER; Y. KEN LEE, LARA EILHARDT, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
2 MELVIN v. SHULKIN
______________________
Before O’MALLEY, REYNA, and TARANTO, Circuit Judges.
PER CURIAM.
Pamela Melvin (“Melvin”) appeals from a decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”). The Veterans Court denied Melvin’s
motion for sanctions against the Department of Veterans
Affairs (“VA”) and the Veterans Court. See Melvin v.
McDonald, No. 16-1015, 2016 U.S. App. Vet. Claims
LEXIS 792 (Vet. App. 2016). Because we lack jurisdiction
to review the issues Melvin raises in this appeal, we
dismiss.
I. BACKGROUND
Melvin served on active duty in the United States
Army from June 9, 1975 to June 8, 1978. In May 2003,
Melvin received service connection, effective June 27,
2001, for degenerative joint disease and instability in her
right and left knees. After becoming dissatisfied with her
medical treatment and benefits, Melvin filed two separate
petitions for a writ of mandamus on November 12, 2015
and November 23, 2015. In the petitions, Melvin asked,
inter alia, that the Veterans Court direct the VA Secre-
tary to provide Melvin with certain medical benefits and
treatment, remove certain statements from her medical
records, and provide Melvin with access to certain VA
records. The Veterans Court consolidated the petitions
because they sought duplicative relief and denied most of
the petition because Melvin sought relief that the court
did not have jurisdiction to grant.
After the Veterans Court’s decision, Melvin filed an-
other petition for a writ of mandamus, along with a check
for the filing fee, on March 11, 2016. This new petition
again asked for the Veterans Court to provide Melvin
with certain medical benefits and treatment. The Veter-
MELVIN v. SHULKIN 3
ans Court did not accept the petition, and Melvin received
a notice stating, “[t]he Court has instructed that we
return [the filing] as not contemplated by Court’s Rules
[sic] and not to open a new petition using this material.”
Suppl. App. 31. Melvin then filed a motion on March 18,
2016 “for an appealable judge’s order of the Court’s deci-
sion to not accept, to not review, and to return her the
March 11, 2016 petition.” Suppl. App. 26. The Veterans
Court, apparently unaware that Melvin had submitted a
filing fee on March 11, 2016, asked Melvin to remit a
filing fee for the new petition.
In response to receiving the notice requesting a filing
fee for the new petition, Melvin asserts that she called the
Clerk’s office at the Veterans Court on March 30, 2016,
and informed the Deputy Clerk that she no longer wished
to litigate her additional petition. During this conversa-
tion, Melvin also requested that the Veterans Court not
cash the check she had sent as her filing fee and instead
return the check to her.
Thereafter, the Veterans Court issued an order on
May 12, 2016, stating that it had received—or found—
Melvin’s filing fee for her March 11, 2016 petition and
that it had jurisdiction to consider a portion of Melvin’s
petition regarding certain benefits. The Veterans Court
ordered the VA to respond to the part of Melvin’s petition
over which the court had determined it could exercise
jurisdiction.
On May 13, 2016, Melvin filed a motion to dismiss her
petition. Melvin alleged that the Veterans Court had
ignored her request to dismiss the petition and return the
filing fee and instead had used the fee to file the petition
so that the VA could “make certain statements and alle-
gations for another matter.” Suppl. App. 38. Melvin filed
a related motion on May 16, 2016, requesting that the
Veteran’s Court, pursuant to its inherent power, impose
sanctions on the VA for “willful and bad faith harass-
4 MELVIN v. SHULKIN
ment” and for having the Clerk’s office file her petition
“by unlawful means,” thereby “forcing her to litigate this
case against her will.” Suppl. App. 44.
The Veterans Court acknowledged Melvin’s argu-
ments but found that “the alleged facts presented simply
are not true.” Melvin, 2016 U.S. App. Vet. Claims LEXIS
792, at *2. The court explained that it asked the VA to
file a response in this matter “based on an apparent
mistaken belief that [Melvin] requested that the filing fee
she had already paid be used for this petition.” Id. The
court granted Melvin’s motion to dismiss the petition,
revoked the order requesting the VA to respond, returned
Melvin’s filing fee to her, and denied Melvin’s motion for
sanctions.
Melvin now appeals the Veterans Court’s denial of her
motion for sanctions. We have jurisdiction pursuant to 38
U.S.C. § 7292.
II. DISCUSSION
We have limited subject matter jurisdiction to review
appeals from the Veterans Court. We have jurisdiction to
“review and decide any challenge to the validity of any
statute or regulation or any interpretation thereof . . . and
to interpret constitutional and statutory provisions, to the
extent presented and necessary to a decision.” 38 U.S.C.
§ 7292(c). Unless an appeal presents a constitutional
issue, we cannot review “a challenge to a factual determi-
nation” or “a challenge to a law or regulation as applied to
the facts of a particular case.” Id. § 7292(d)(2).
Melvin asserts that the Veterans Court had inherent
authority to issue sanctions and “the responsibility to
control its litigating proceedings and the conduct of those
before it.” Appellant’s Informal Br. 8. Melvin argues that
the court should have granted sanctions “for the filing of
this case in Melvin’s name without her consent and
knowledge.” Id. Melvin also alleges that the VA attor-
MELVIN v. SHULKIN 5
neys had access to and control over her computer and
repeatedly deleted her drafts of her brief in this case. Id.
at 8–9.
Melvin argues that the filing of this case without her
consent violated her Fifth Amendment right to liberty and
right to engage in conduct without intervention of the
government. Melvin also argues that the filing of her case
and the deletion of her draft briefs violated her Fifth
Amendment right to equal protection because it forced her
to be a party in a court case and provided the court with
personal jurisdiction over her. According to Melvin, the
VA attorneys also violated numerous federal laws and
committed fraud when they allegedly filed this case.
Melvin’s request for sanctions is inherently a factual
question, which leaves it outside the scope of our jurisdic-
tion to review appeals from the Veterans Court. See 38
U.S.C. § 7292(d)(2); see also Melvin v. McDonald, 634 F.
App’x 309, 311 (Fed. Cir. 2015) (“Whether sanctions are
appropriate [in an appeal from the Veterans Court] is a
factual matter outside the jurisdiction of this court.”);
Malik v. McDonald, 618 F. App’x 1007, 1012 (Fed. Cir.
2015) (explaining that a decision by the Veterans Court
not to impose sanctions “is factual in nature, and thus
unreviewable by this Court”). Although Melvin attempts
to frame her appeal as one involving constitutional issues
under the Fifth Amendment, Melvin never raised any
constitutional challenges in her motion for sanctions filed
with the Veterans Court, see Suppl. App. 44–53, and thus
has waived her constitutional arguments. See, e.g.,
Charles v. Shinseki, 587 F.3d 1318, 1322 (Fed. Cir. 2009)
(finding an argument waived because the party raised it
for the first time on appeal). Because Melvin’s appeal
raises factual questions and she has waived any potential
constitutional arguments, we lack jurisdiction to consider
this portion of Melvin’s appeal.
6 MELVIN v. SHULKIN
Even if we were to consider Melvin’s constitutional
arguments on the merits, which would allow us to consid-
er a challenge to a factual question, the Veterans Court’s
decision is correct. Based on the record before us, the
Veterans Court accepted Melvin’s March 11, 2016 petition
and requested a response from the VA because of an
apparent misunderstanding regarding Melvin’s desire to
pursue the merits of the petition she filed with the court.
See Melvin, 2016 U.S. App. Vet. Claims LEXIS 792, at *1–
2. Upon learning that Melvin wished to have her petition
voluntarily dismissed and her filing fee returned to her,
the Veterans Court dismissed the petition and returned
the filing fee to Melvin. Id. Even if we assume that the
Fifth Amendment covers the scope of constitutional
protections alleged by Melvin, there is no evidence to
support Melvin’s claim that a constitutional violation
occurred.
Melvin also filed a Second Supplemental Informal
Brief in which she seeks to add additional issues to this
appeal. Melvin asks that we declare that the Veterans
Court does not have jurisdiction to consider cases involv-
ing certain types of medical benefits. Melvin’s request
does not have any bearing on the writ of mandamus that
gave rise to this appeal and was voluntarily dismissed at
the request of Melvin. Indeed, the Veterans Court agreed
with Melvin’s position—i.e., that it does not have jurisdic-
tion to consider cases involving the types of medical
benefits raised by Melvin—when addressing the consoli-
dated case involving her two petitions for a writ of man-
damus.
Melvin’s requested declaration regarding the Veter-
ans Court’s jurisdiction appears to be based on statements
allegedly made by the VA in other cases litigated in other
federal courts. Because Melvin’s requested declaration
does not have any bearing on this appeal, the issues
raised in Melvin’s Second Supplemental Informal Brief
effectively amount to a request for an advisory opinion
MELVIN v. SHULKIN 7
regarding the jurisdiction of the Veterans Court. It is
well established that federal courts do not have jurisdic-
tion to render advisory opinions. See, e.g., Flast v. Cohen,
392 U.S. 83, 96–97 (1968) (explaining that “no justiciable
controversy is presented when . . . the parties are asking
for an advisory opinion” and that the “oldest and most
consistent thread in the federal law of justiciability is that
the federal courts will not give advisory opinions”); Hay-
burn’s Case, 2 U.S. (2 Dall.) 409 (1792). We therefore do
not have jurisdiction to entertain Melvin’s arguments in
the Second Supplemental Informal Brief.
III. CONCLUSION
We have considered Melvin’s remaining arguments,
and we find them unpersuasive. For the foregoing rea-
sons, we dismiss Melvin’s appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.