Bobby J. Steward v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

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# United States Court of Appeals for the Federal Circuit

2009-7095

BOBBY J. STEWARD,

Claimant-Appellant,
V.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims in
09-0030, Judge Bruce E. Kasold.

ON MOTION

Before MAYER, CLEVENGER, and RADER, Circuit Judges.
PER CURIAM.

ORDER

The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir.
R. 27(f) and dismiss for lack of jurisdiction Bobby J. Steward's appeal from a decision of
the United States Court of Appeals for Veterans Claims denying a petition for a writ of
mandamus.

Steward served on active duty in the Marine Corps from September 1958 to
September 1961. In 2005, the Indianapolis, Indiana regional office (RO) awarded
Steward temporary disability for August 2002 to December 2002 for ischemic heart
disease, but denied him entitlement to service connection for hypertension. Steward
appealed the RO's determinations to the Board of Veterans' Appeals, which in October
2008 remanded Steward's claims to the RO for additional development, including
obtaining a medical examination.

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While his claims were pending before the agency, Steward sought relief from the
Court of Appeals for Veterans Claims. He filed a "motion" to (1) stop circuitous
remands of his claims; (2) direct the RO to authorize payment of a 100% disability
rating; and (3) grant dependency status and retroactive dependent's education benefits
for his son. In its order, the Court of Appeals for Veterans Claims construed Steward's
motion as a petition for a writ of mandamus and denied the petition. The court
explained that to the extent Steward was challenging the remand order he had "not
demonstrated that the remand order was inappropriate or otherwise arbitrary and
capricious such that it might warrant judicial intervention." Regarding the status and
merits of his claims pending before the agency, the court held that Steward had failed to
demonstrate that "the Board was not processing his appeal or that mandamus
otherwise is warranted." Steward appealed, seeking review by this court.

The Federal Circuit has exclusive jurisdiction to review the validity of a decision
of the Court of Appeals for Veterans Claims on a rule of law or of any statute or
regulation. See 38 U.S.C. § 7292(a). This rule applies as well when we review the
validity of the Court of Appeals for Veterans Claims' application of the All Writs Act,
which requires that the court issue "all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. §
1651(a); see Lamb v. Principi, 284 F.3d 1378, 1381 (Fed. Cir. 2002). But, absent a
constitutional issue, we "may not review (A) a challenge to a factual determination, or
(B) a law or regulation as applied to the facts of a particular case" when evaluating a
denial of writ." 38 U.S.C. § 7292(d)(2).

Steward argues that the Court of Appeals for Veterans Claims erred because he
filed a motion, not a writ, seeking an order "compelling the VA [to] do what it was

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created to do." However, as the court explained, Steward was not seeking review from
a final Board decision. That court would only have had jurisdiction to entertain a writ,
because he could not file a motion if there was no appeal pending at the court. Thus, to
the extent there might be a legal issue whether the court correctly treated the
submission as a writ, we affirm.

Steward also appears to argue that the court should have addressed the merits
of the most recent RO determinations regarding his claims. We affirm the Court of
Appeals for Veterans Claims in its determination that the remand order was within the
Board's discretion and did not warrant intervention by mandamus. Any other arguments
made by Steward are outside of this court's jurisdiction and are not addressed.

Accordingly,

IT IS ORDERED THAT:

(1) The judgment of the Court of Appeals for Veterans Claims is summarily
affirmed. The Secretary's motions are moot.

(2)
Each side shall bear its own costs.

FOR THE COURT

AUG 1 7 2009

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc:
Bobby J. Steward
Jeffrey D. Klingman, Esq.
$19

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT

AUG 17 2009
JAN HORBALY
CLERK

2009-7095