Benjamin Wayne Latham, Patricia Musileck Latham v. Douglas A. Collins, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BENJAMIN WAYNE LATHAM, PATRICIA
MUSILECK LATHAM,
Claimants-Appellants
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-2253
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 24-2786, Judge Michael P. Allen.
______________________
Decided: March 7, 2025
______________________
BENJAMIN WAYNE L ATHAM , Raleigh, NC, pro se.
P ATRICIA M USILECK L ATHAM , Raleigh, NC, pro se.
ELINOR J OUNG K IM , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. B OYNTON, WILLIAM J AMES G RIMALDI, P ATRICIA M.
MCCARTHY ; SCOTT J. SHOREMAN, BRYAN T HOMPSON, Office
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LATHAM v. COLLINS 2
of General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before REYNA, SCHALL , and HUGHES , Circuit Judges.
P ER CURIAM .
Benjamin Latham, a veteran of the U.S. Marine Corps,
and his wife and caretaker, Patricia Latham, appeal a de-
cision of the United States Court of Appeals for Veterans
Claims that denied a writ of mandamus and motion to ex-
pedite proceedings. Because Mr. and Mrs. Latham’s appeal
challenges the Veterans Court’s factual determinations or
application of law to fact, which we lack jurisdiction to re-
view, we dismiss.
I
Mr. Latham served in the Marine Corps from June
2010 to January 2015. S.A. 54.1 Following his separation
from service, the Department of Veterans Affairs awarded
Mr. Latham a 100 percent combined disability rating effec-
tive January 31, 2015, and special monthly compensation
to include an allowance for aid and attendance. Appx.
188–89.2
In February 2015, Mr. and Mrs. Latham jointly applied
for benefits under the Program of Comprehensive Assis-
tance for Family Caregivers (PCAFC). Appx. 170. In April
2015, their joint application was approved with Mrs. Lat-
ham designated as the primary family caregiver and as-
signed a stipend equivalent to 25 hours of caregiver
1 “S.A.” refers to the supplemental appendix filed with
the Respondent’s brief.
2 “Appx.” refers to the corrected appendix filed with the
Claimant’s brief.
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LATHAM v. COLLINS 3
assistance, commonly referred to as “Tier 2.” Appx. 177;
S.A. 64.
In 2017, based on a reassessment, the VA assigned the
Lathams the highest Tier 3 stipend, equivalent to requir-
ing 40 hours per week of caregiver assistance. Appx. 180.
However, Mr. Latham underwent another PCAFC reas-
sessment, which determined that the Tier 3 stipend was
assigned in error. Appx. 182. In January 2022, Mr. and
Mrs. Latham timely submitted a Notice of Disagreement
with the Tier 2 stipend designation. S.A. 55.
On August 30, 2023, the VA denied a Tier 3 stipend and
affirmed the Tier 2 stipend that had been designated in
April 2015. S.A. 82. In October 2023, Mr. and Mrs. Latham
submitted an appeal to the Board of Veterans’ Appeals
challenging the Tier 3 denial. The Board remanded the
claim on April 24, 2024, for the VA to re-adjudicate the ef-
fective date of the Tier 3 stipend. S.A. 54–56.
On April 29, 2024, five days after the Board’s remand
decision, Mr. and Mrs. Latham filed a petition for writ of
mandamus with the Veterans Court under the All Writs
Act, 28 U.S.C. § 1651(a). S.A. 21–40. Mr. and Mrs. Latham
sought mandamus to (1) compel the Board to give Mrs. Lat-
ham proper notice as the caregiver of Mr. Latham and rec-
ognize her as an appellant; (2) compel the Board to respond
to their motion for reconsideration of its April 24, 2024, re-
mand decision that Mr. and Mrs. Latham filed on April 29,
2024, the same day they filed a mandamus petition with
the Veterans Court; (3) compel the Secretary of Veterans
Affairs to meet deadlines and provide status updates until
there was a final Board decision; (4) order the Secretary to
provide an informal conference; (5) order the Secretary to
provide a copy of the February 2024 Board hearing tran-
script; and (6) order the Board to issue a final decision ra-
ther than allow the April 24, 2024 remand. S.A. 39–40. On
the same day, Mr. and Mrs. Latham also filed a motion for
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LATHAM v. COLLINS 4
expedited proceedings with the Veterans Court. S.A. 41–
42.
On May 3, 2024, Mr. and Mrs. Latham submitted a mo-
tion under Rule 8 of the Veterans Court Rules of Practice
and Procedure seeking to estop Secretarial action from re-
quiring home visits under the PCAFC based on alleged vi-
olations of the First, Fourth, Fifth, and Fourteenth
Amendments of the United States Constitution. S.A.
43–51. On May 6, 2024, the Veterans Court denied the
Rule 8 motion because a mandamus order can only compel
action on an appeal and cannot dictate a particular out-
come. S.A. 15–16.
On May 10, 2024, the Veterans Court issued an order
denying the petition for a writ of mandamus. S.A. 1–6. The
Veterans Court found that (1) Mrs. Latham had actual no-
tice of the Board’s April 24, 2024 remand because it was
included in their petition; (2) there had not been any delay
shown in the Board’s processing of a motion for reconsider-
ation, and it was a frivolous claim given that it was filed
the same day as the petition for a writ; (3) the request for
status updates was premature because there had not yet
been delay; (4) the VA had not been given a chance to re-
spond to the request for an informal conference so any de-
lay was speculative; (5) the hearing transcript had been
sent; and (6) a writ of mandamus was not the appropriate
vehicle to review the merits of a Board remand order. S.A.
2–4. Additionally, the Veterans Court denied the Lathams’
motion to expedite as moot because an order responding to
the merits of the petition for writ was being issued, and
there was no further action pending that needed to be ex-
pedited. S.A. 5.
This appeal followed.
II
We have limited jurisdiction over appeals from the Vet-
erans Court. We “decide all relevant questions of law,
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LATHAM v. COLLINS 5
including interpreting constitutional and statutory provi-
sions.” 38 U.S.C. § 7292(d)(1). But we cannot review a chal-
lenge to a factual determination or a challenge to a law or
regulation as applied to the facts of a case, except to the
extent that an appeal presents a constitutional issue. Id.
§ 7292(d)(2); Wanless v. Shinseki, 618 F.3d 1333, 1336
(Fed. Cir. 2010).
III
In denying Mr. and Mrs. Latham’s petition for extraor-
dinary relief and related motions, the Veterans Court ap-
plied established law to the facts of their case without
elaborating on the meaning of a statute, regulation, or rule
of law. See 38 U.S.C. § 7292(a); Forshey v. Principi,
284 F.3d 1335, 1349 (Fed. Cir. 2002) (en banc) (“[A]n inter-
pretation of a statute or regulation occurs when its mean-
ing is elaborated by the court.”), superseded by statute on
other grounds, Veterans Benefits Act of 2002, Pub. L. No.
107-330, § 402(a), 116 Stat. 2820, 2832 as recognized in
Harris v. McDonough, No. 2023-1827, 2024 WL 5231216,
at *2 (Fed. Cir. Dec. 27, 2024). The Veterans Court refer-
enced and considered the standard for establishing manda-
mus, identified the six factors outlined in
Telecommunications Research and Action Center v. FCC,
750 F.2d 70, 80 (D.C. Cir. 1984) to consider when determin-
ing whether the agency’s delay was so egregious it would
warrant mandamus, and considered its rules of practice
and procedure where applicable. S.A. 1–2.
For each of the six bases Mr. and Mrs. Latham claimed
warrant mandamus, the Veterans Court did nothing more
than apply the law or its rules of practice and procedure to
the allegations raised by Mr. and Mrs. Latham, which we
lack jurisdiction to consider. S.A. 2–5; see also 38 U.S.C.
§ 7292(d)(2) (“[T]he Court of Appeals 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.”); see also Singleton v. Shinseki, 659 F.3d 1332, 1334
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LATHAM v. COLLINS 6
(Fed. Cir. 2011) (“This court may not review the Veterans
Court’s factual findings or its application of law to facts ab-
sent a constitutional issue.”). To the extent Mr. and
Mrs. Latham attempt to reframe these issues as raising a
constitutional challenge, namely, by claiming the home vis-
its violate their constitutional rights under the First,
Fourth, Fifth, Ninth, and Fourteenth Amendments, we
have repeatedly noted that an appellant cannot so evade
our jurisdictional limitations. See Helfer v. West, 174 F.3d
1332, 1335 (Fed. Cir. 1999) (“[An appellant’s] characteriza-
tion of [a] question as constitutional in nature does not con-
fer upon us jurisdiction that we otherwise lack.”).
IV
We have considered Mr. and Mrs. Latham’s remaining
arguments and conclude that they likewise fail to raise any
issue within our limited jurisdiction. Because we lack ju-
risdiction to review Mr. and Mrs. Latham’s appeal, we dis-
miss.3
DISMISSED
COSTS
No costs.
3 Mr. and Mrs. Latham recently filed a motion for re-
consideration of our order denying stay pending appeal, or
in the alternative, en banc reconsideration and a new mo-
tion for stay or injunction for interlocutory relief pending
appeal. ECF Nos. 39, 42. As we have decided the appeal,
Mr. and Mrs. Latham’s motions are moot.
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