Fermin v. McDonough

Case: 23-1482 Document: 32 Page: 1 Filed: 10/24/2023

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

FREDERICK C. FERMIN, Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2023-1482 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 22-7258, Judge William S. Green- berg. ______________________

Decided: October 24, 2023 ______________________

FREDERICK C. FERMIN, San Antonio, TX, pro se.

ROBERT R. KIEPURA, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, for respondent-appellee. Also represented by BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M. MCCARTHY. ______________________

Case: 23-1482 Document: 32 Page: 2 Filed: 10/24/2023 2 FERMIN v. MCDONOUGH

Before CHEN, STOLL, and CUNNINGHAM, Circuit Judges. PER CURIAM. Frederick C. Fermin appeals from an order of the United States Court of Appeals for Veterans Claims (“Vet- erans Court”) denying his petition for extraordinary relief. Fermin v. McDonough, No. 22-7258, 2023 WL 234755 (Vet. App. Jan. 18, 2023) (“Petition Order”). For the reasons dis- cussed below, we affirm the Veterans Court’s decision re- garding jurisdiction and dismiss for lack of jurisdiction Mr. Fermin’s appeal as it relates to his challenges to factual determinations or the law as applied to the facts. I. BACKGROUND Mr. Fermin served in the U.S. Army and received ser- vice-connected disability ratings. See S. App. 3. 1 After a series of proceedings concerning Mr. Fermin’s ratings, the Veterans Court remanded the matter to the Board of Vet- erans’ Appeals (“Board”) to address a January 2004 medi- cal record and how it may relate to Mr. Fermin’s service- connected disability ratings. See S. App. 3; App. 19–22. 2 In September 2021, the Board addressed the medical rec- ord and denied Mr. Fermin’s claim for an earlier effective date for special monthly compensation under 38 U.S.C. § 1114(p) at a rate intermediate between subsections (l) and (m) for additional independent fifty percent disabili- ties. See App. 19, 22–25; S. App. 3. Mr. Fermin appealed, and the Veterans Court issued a series of decisions. See Case No. 21-7853 (“the 21-7853 matter”). First, the Veter- ans Court affirmed the Board’s decision, explaining that

Case: 23-1482 Document: 32 Page: 3 Filed: 10/24/2023 FERMIN v. MCDONOUGH 3

Mr. Fermin failed to show that the Board erred in its treat- ment of the medical record. See Fermin v. McDonough, No. 21-7853, 2022 WL 1565248, at *¹–2 (Vet. App. May 18, 2022) (“Decision”); see also S. App. 2–5. Next, Mr. Fermin filed multiple motions leading to the Veterans Court issu- ing a panel order, denying the motion to reconsider the ear- lier single-judge decision and confirming that earlier decision remained the decision of the Veterans Court. See Fermin v. McDonough, No. 21-7853, 2022 WL 2046114, at *1 (Vet. App. June 7, 2022) (“Panel Order”). Mr. Fermin subsequently filed a motion for full court review, which the Veterans Court denied. See Fermin v. McDonough, No. 21- 7853, 2022 WL 2867100, at *1 (Vet. App. July 21, 2022). Mr. Fermin filed a petition for extraordinary relief from the “false judgment” entered in the 21-7853 matter, and the Veterans Court denied the petition. 3 See Petition Order at *1; S. App. 30–31. In denying the petition, the Veterans Court explained that its “writ authority is limited to issuing writs in aid of the [Veterans] Court’s jurisdic- tion.” Petition Order at *1; see 28 U.S.C. § 1651(a). The Veterans Court further explained that it “already decided” the challenge raised by Mr. Fermin “first as a single-judge decision, and then as a panel decision” in the 21-7853 mat- ter. Petition Order at *1. “Though [Mr. Fermin] disa- gree[d] with the outcome of the judgment entered under docket number 21-7853,” the Veterans Court could not “is- sue a writ or provide the relief” sought by Mr. Fermin in the 22-7258 matter. Id. After denying Mr. Fermin’s peti- tion, the Veterans Court entered judgment in the 22-7258 matter in February 2023. See App. 3. Mr. Fermin now ap- peals.

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II. DISCUSSION As a preliminary matter, Mr. Fermin appears to at- tempt to appeal from the judgment entered in the 21-7853 matter. See Appellant’s Informal Opening Br. 15–16; ECF No. 16 at 5. To be timely, a notice of appeal must be filed within sixty days of the entry of the Veterans Court’s judg- ment. See 28 U.S.C. § 2107(b), 38 U.S.C. § 7292(a). The parties agree that Mr. Fermin did not timely appeal the 21- 7853 matter to this court. See Appellant’s Informal Open- ing Br. 15; ECF No. 16 at 5; Appellee’s Informal Br. 11–12. Although Mr. Fermin appears to ask this court to excuse his lateness due to mail and computer issues, see Appel- lant’s Informal Opening Br. 15–16; ECF No. 16 at 5, we cannot do so because the statutorily prescribed time for fil- ing appeals from the Veterans Court to this court is man- datory and jurisdictional. See Henderson v. Shinseki, 562 U.S. 428, 438–39 (2011); Wagner v. Shinseki, 733 F.3d 1343, 1348 (Fed. Cir. 2013). Accordingly, we do not have jurisdiction over any appeal regarding the 21-7853 matter. Regarding the 22-7258 matter, Mr. Fermin appeals from the Veterans Court’s denial of his petition for extraor- dinary relief from the alleged “false judgment” entered in the 21-7853 matter. See Petition Order at *1; ECF No. 1 at 5–6; ECF No. 16 at 5–6. In the underlying order, the Vet- erans Court explained that Mr. Fermin’s petition raised a challenge to an issue “already decided” by the Veterans Court in the 21-7853 matter. See Petition Order at *1. The Veterans Court explained that its writ authority did not extend to Mr. Fermin’s request to effectively reconsider the 21-7853 matter because the Veterans Court’s “writ author- ity is limited to issuing writs in aid of the [Veterans] Court’s jurisdiction.” Id.; see 28 U.S.C. § 1651(a). To the extent Mr. Fermin argues that the Veterans Court erred in determining that it lacked jurisdiction, and thereby writ authority, we disagree.

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Under the All Writs Act, the Veterans Court “may issue all writs necessary or appropriate in aid of [its] respective jurisdiction[].” 28 U.S.C. § 1651(a). We review de novo whether the Veterans Court “properly declined to assert ju- risdiction.” Andre v. Principi, 301 F.3d 1354, 1358 (Fed. Cir. 2002) (citation omitted). The Veterans Court correctly determined here that it lacked jurisdiction over Mr. Fer- min’s challenge to the 21-7853 matter because its jurisdic- tion is limited to review of decisions from the Board, see 38 U.S.C. § 7252(a), and the 21-7853 matter was resolved by the Veterans Court in a single-judge decision and panel or- der. See Decision at *1–2; Panel Order at *1; see also Mor- ris v. Shulkin, 677 F. App’x 681, 681–82 (Fed. Cir. 2017) (affirming judgment of the Veterans Court, explaining that “this court has already determined, in a previous appeal, that it lacks jurisdiction over [Appellant’s] primary argu- ment and that the constitutional issue he raises lacks merit”). Therefore, we affirm the Veterans Court’s decision regarding jurisdiction. See, e.g., Blaney v. McDonald, 590 F. App’x 986, 989 (Fed. Cir. 2014); Jackson v. Wilkie, 839 F. App’x 463, 465 (Fed. Cir. 2020). Mr. Fermin’s remaining challenges to the Veterans Court’s denial of his petition for extraordinary relief fall outside of our jurisdiction. Our jurisdiction to review deci- sions of the Veterans Court is limited by statute. See 38 U.S.C. § 7292. We have jurisdiction to review “all relevant questions of law,” but lack jurisdiction to review “a chal- lenge to a factual determination,” or “a challenge to a law or regulation as applied to the facts of a particular case,” except to the extent that those challenges raise a constitu- tional issue. 38 U.S.C. § 7292(d). Mr. Fermin raises a series of arguments that merely challenge either the law as applied to the facts or factual determinations made by the Veterans Court and the Board in the 21-7853 matter. Mr. Fermin primarily argues that the Board fraudulently concealed the January 2004 medi- cal record and violated various statutes and regulations,

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and the Veterans Court failed to rectify these issues in the 21-7853 matter. See, e.g., Appellant’s Informal Opening Br. 15–16; ECF No. 16 at 5–6; Appellant’s Informal Reply Br. 1–3; ECF No. 29 at 2–3. As we have explained, the 21- 7853 matter is not on appeal here, and we lack jurisdiction over any challenge to that matter. To the extent Mr. Fer- min argues that the Veterans Court in the 22-7258 matter erred in its assessment of such underlying facts, we like- wise lack jurisdiction to review any such factual determi- nations. See 38 U.S.C. § 7292(d); see also Beasley v. Shinseki, 709 F.3d 1154, 1158 (Fed. Cir. 2013) (“We may not review the factual merits of the veteran’s claim,” and “we do not interfere with the CAVC’s role as the final ap- pellate arbiter of the facts underlying a veteran’s claim[.]”). Mr. Fermin also argues that the Veterans Court vio- lated a series of statutes and regulations, including 38 U.S.C. §§ 110, 7112 and 38 C.F.R. § 3.957. See Appellant’s Informal Opening Br. 15. However, in its order denying Mr. Fermin’s petition for extraordinary relief, the Veterans Court neither relied on nor interpreted the statutes and regulations raised in Mr. Fermin’s briefing. See Petitioner Order at *1. At most, Mr. Fermin challenges the applica- tion of a statute or regulation to the facts of his case. We therefore lack jurisdiction over any such argument. See Githens v. Shinseki, 676 F.3d 1368, 1372 (Fed. Cir. 2012) (“We have no jurisdiction over an issue of interpretation that does not exist.”); 38 U.S.C. § 7292(d). Mr. Fermin further raises an alleged constitutional due process violation. See Appellant’s Informal Opening Br. 15. However, Mr. Fermin’s purported due process challenge contests the merits of the Veterans Court’s and the Board’s decisions in the 21-7853 matter over which we lack juris- diction. See id. (arguing that the Veterans Court “ap- proved” of the Board’s “lying to the [Veterans] Court” about the January 2004 medical record, “which is in violation [of] due process of law”). Moreover, Mr. Fermin’s due process challenge is constitutional in name only and therefore not

Case: 23-1482 Document: 32 Page: 7 Filed: 10/24/2023 FERMIN v. MCDONOUGH 7

reviewable by this court. See Flores v. Nicholson, 476 F.3d 1379, 1382 (Fed. Cir. 2007) (“[T]he appellant’s characteri- zation of [the] question as constitutional in nature does not confer upon us jurisdiction that we otherwise lack.”) (cleaned up). III. MOTIONS AND OTHER FILINGS Mr. Fermin moves “for leave to restate [a] claim for brain damage . . . based on new evidence,” ECF No. 19 at 1 (emphases removed), and for leave to “submit proof . . . [of a] diagnosis of brain damage,” ECF No. 24 at 1. In both motions, Mr. Fermin appears to seek to submit alleged new medical evidence for our consideration. See ECF No. 19 at 1–2; ECF No. 24 at 1–2. We deny these motions raising challenges to factual determinations, recognizing that we lack jurisdiction to review Mr. Fermin’s alleged new evi- dence. See 38 U.S.C. § 7292(d). Additionally, Mr. Fermin asks this court to “enforce” our judgment and mandate in Mr. Fermin’s previous ap- peal, Appeal No. 20-1680. ECF No. 5 at 1–2; see also ECF No. 15 at 2 (“constru[ing] ECF No. 5 as additional continu- ation pages and appendix material to Mr. Fermin’s infor- mal opening brief”). In Appeal No. 20-1680, Mr. Fermin appealed from a Veterans Court decision affirming the Board’s finding of no clear and unmistakable error. See Fermin v. Wilkie, 816 F. App’x 488, 488–91 (Fed. Cir. 2020). This court dismissed Mr. Fermin’s appeal for lack of juris- diction, entered judgment, and issued a formal mandate. See id.; App. 42 (mandate), 44 (judgment). Mr. Fermin ar- gues that the Board and Appellee “failed to comply” with this court’s judgment and mandate, ECF No. 5 at 1–2, but offers no support for this allegation. Accordingly, we deny Mr. Fermin’s request. Lastly, Mr. Fermin moves “to expedite proceedings,” ECF No. 31 at 1, which is mooted by the issuance of this decision.

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IV. CONCLUSION We have considered Mr. Fermin’s remaining argu- ments and find that they either do not raise issues within our jurisdiction or are unpersuasive. For the reasons dis- cussed above, we affirm the Veterans Court’s decision re- garding jurisdiction and dismiss for lack of jurisdiction Mr. Fermin’s appeal as it relates to his challenges to factual determinations or the law as applied to the facts. AFFIRMED-IN-PART AND DISMISSED-IN-PART COSTS No costs.

Footnotes

[1] “S. App.” refers to the supplemental appendix at- tached to Appellee’s Informal Brief, ECF No. 22.

[2] “App.” refers to materials attached to Mr. Fermin’s Informal Opening Brief, ECF No. 16. Any citations to these materials, this docket entry, or to Mr. Fermin’s Informal Opening Brief refer to the ECF page number.

[3] The petition was denied in an order docketed under Case No. 22-7258 (“the 22-7258 matter”).