NOTE: This order is nonprecedential. 

Wniteb $>tate~ (!Court of ~peaI~ 

for !be jf eberaI (!Circuit 

ROBERT R. DAVIS, JR., 

Claimant-Appellant, 

v. 

ERIC K. SHINSEKI, SECRETARY OF VETERANS 

AFFAIRS, 

Respondent-Appellee. 

2010-7030 

Appeal from the United States Court of Appeals for 

Veterans Claims in 09-2984, Judge Robert N. Davis. 

ON MOTION 

Before LINN, DYK, and PROST, Circuit Judges. 

PER CURIAM. 

ORDER 

The Secretary of Veterans Affairs move~ to waive the 

requirements of Fed. Cir. R. 27(f) and dismiss for lack of 

jurisdiction Robert R. Davis, Jr.'s appeal from a decision 

of the United States Court of Appeals for Veterans Claims 

that denied a petition for a writ of mandamus seeking to 
DAVISv. DVA 2 

compel the Chicago, Illinois Department of Veterans 

Affairs regional office (RO) to (1) notify Davis of the status 

of a pending attorney fees dispute, and (2) forward his 

appeal of the August 19, 2008, rating decision to the 

Board of Veterans' Appeals (Board). Davis moves "to 

submit additional evidence of denial of due process rights 

by the DV A." 

Davis served honorably in the United States Air Force 

from March 1961 to May 1965, including service in Vietnam. In April 2007, Davis entered into a fee agreement 

with Daniel Krasnegor and his law firm for representation before the agency in pursuit of a claim for disability 

compensation for post-traumatic stress disorder (PTSD). 

On August 7, 2008, the Board granted Davis entitlement 

to service connection for PTSD and remanded the matter 

to the RO for assignment of a disability rating and effective date. 

On remand, the RO assigned Davis's claim a 50% disability award rating and an effective date of May 14, 

1993. Davis began to receive compensation benefits. 

However, a portion of the retroactive benefit award was 

withheld by the RO pursuant to an attorney fees dispute 

currently pending before the agency with regard to Krasnegor's prior representation of Davis. In March 2009, 

Davis also sought review of the RO's determination from a 

decision review officer (DRO), seeking an earlier effective 

date and a total disability rating based on individual 

unemployability (TDIU). Both the attorney fees dispute 

and the DRO review appear to remain pending before the 

agency. 

On August 11, 2009, Davis petitioned- the Court of 

Appeals for Veterans Claims for a writ of mandamus 

seeking to compel the RO to take action on the attorney 

fees dispute and to compel the RO to forward his dispute 

regarding his disability compensation award to the Board. 

In response to the petition, the Secretary informed the 
3 DAVIS v. DVA 

court that on October 7, 2009 the RO had issued a decision on the attorney fees dispute, and with regard to 

Davis's increased rating and earlier effective date claims, 

Davis himself had not perfected his appeal with the Board 

and the DRO review was still in process. The Secretary 

further noted that with regard to the issue of TDIU, there 

was no evidence that Davis had ever filed a TDIU claim 

and the Secretary therefore sent him a letter informing 

Davis of the Secretary duty-to-notify requirements pursuant to 38 U.S.C. § 5103(a), beginning the processing of his 

claim. 

On November 9,2009, the Court of Appeals for Veterans Claims denied Davis's petition for a writ of mandamus. With regard to the attorney fees dispute, the court 

noted that the agency had now issued an initial decision 

on the matter and that Davis could appeal that decision to 

the Board. With regard to his compensation award dispute, the court stated that the RO had moved forward 

with his claim and that a DRO officer had been assigned 

and would issue a supplemental statement of the case, 

which Davis could then appeal to the Board. Satisfied 

that the agency's actions mooted the issues raised by 

Davis, the court denied his petition for a writ of mandamus. Additionally, the court noted that the issues raised 

by Davis in his petition were the same as those presented 

in a petition filed earlier in the year and that "[t]he court 

will therefore not entertain any further filings on these 

matters." Davis now seeks review by this court of that 

decision. 

The court's jurisdiction to review decisions of the 

Court of Appeals for Veterans Claims is -limited. See 

Forshey v. Principi, 284 F.3d 1335, 1338 (Fed. Cir. 2002) 

(en banc). Under 38 U.S.C. § 7292(a), this court has 

jurisdiction over rules of law or the validity of any statute 

or regulation, or an interpretation thereof relied on by the 

court in its decision. This court may also entertain chal-
DAVIS v. DVA 4 

lenges to the validity of a statute or regulation, and to 

interpret constitutional and statutory provisions as 

needed for resolution of the matter. 38 U.S.C. § 7292(c). 

In contrast, except where an appeal presents a constitutional question, this court lacks jurisdiction over challenges to factual determinations or laws or regulations as 

applied to the particular case. 38 U.S.C. § 7292(d)(2). 

In his brief, Davis contends that his appeal raises an 

issue of constitutional due process because the court 

denied him a full and fair hearing on the factual issues 

before the court based on its statement that "[t]he court 

will therefore not entertain any further filings on these 

matters." Davis further asserts in his brief that the 

Secretary incorrectly explained to the court that he never 

filed a TDIU claim because that claim was implicitly 

raised when he sought to file his claim for an increased 

rating. Finally, Davis contends that the agency is incorrectly withholding an amount of his retroactive disability 

compensation award because his prior attorney is not 

entitled to attorney fees pursuant to 38 U.s.C. § 5904. 

We agree with the Secretary that this court is without 

jurisdiction over Davis's assertions regarding his TDIU 

claim and his assertions regarding the withholding of a 

portion of his compensation award based on the ongoing 

fees dispute. As the Court of Appeals for Veterans Claims 

noted, those issues remain pending before the agency and 

Davis must exhaust all of his administrative remedies 

before pursuing an appeal. With regard to Davis's constitutional question argument, we cannot say that the 

court's statement that it would not entertain further 

filings on these matters amounted to a violation of the 

procedural due process. The court's statement does not 

preclude Davis from pursuing a proper appeal at the 

Court of Appeals for Veterans Claims on matters ongoing 

before the agency when those matters are ripe for appeal. 

Furthermore, Davis has now been afforded two decisions 
5 DAVIS v. DVA 

from the Court of Appeals for Veterans Claims on essentially the same matters and facts. Given the circumstances here, we cannot say it was improper for the court 

to deny further filings on the same matter. Therefore, to 

the extent that this issue falls within this court's jurisdiction, we reject Davis's argument. 

Accordingly, 

IT Is ORDERED THAT: 

(1) The Secretary's motions are granted. The appeal 

is dismissed in part and affirmed-in-part. 

(2) Each side shall bear its own costs. 

(3) Davis's motion is granted. 

OCT 272010 

Date 

FOR THE COURT 

lsI Jan Horbaly 

Jan Horbaly 

Clerk 

FILED 

u.s. COURt OF APPEALS FOR 

THE FEDERAL CIRCUIT 

cc: Robert R. Davis, Jr. 

Michael N. O'Connell, Esq. 

s19 

ISSUED AS A MANDATE: _O_C_T_2_7_2_01_D __ _ 

OCT 2 T ZOIO 

JAN HORBALY 

CLERK