Note : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________

SHELIA WINSETT, Claimant

- Appellant,

v.

E RIC K. SHINSEKI , S ecretary of Veterans Affairs , Respondent

- Appellee.

______________________

2012

- 7180

______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 12

- 784, Judge Alan G. Lance Sr.

- - - - - - - - - - - - - - - - - - - - - -
SHELIA WINSETT, Claimant

- Appellant,

v.

ERIC K. SHINSEKI , S ecretary of Veterans Affairs , Respondent

- Appellee.

______________________

2013

- 7043

______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 12

- 1572, Judge Robert N. Davis.SHELIA WINSETT v. SHINSEKI 2

______________________

Decided: July 16, 2013

______________________

S HELIA W INSETT , of Parrish, Alabama, pro se, in a ppeals N os. 2012

- 7180 and 2013

- 7043

.

A MANDA L. T ANTUM , Trial Attorney, Commercial Lit igation Branch, Civil D ivision, United States Department of Justice, of Washington, DC, for respondent

- appellee , in appeal no. 2012

- 7180 . With her on the brief were S TUART F. D ELERY , Assistant Attorney General, J EANNE E. D AVIDSON , Director, and M ARTIN F. H OCKEY , J R ., Assistant Director. Of counsel on the brief were D AVID J. B ARRANS , Deputy Assistant General Counsel.

B ARBARA E. T HOMAS , Trial Attorney, Commercial Li tigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent

- appelle e , in appeal no. 2013

- 7043 . With her on the brief were S TUART F. D ELERY , Principal Deputy Assistant Attorney General, J EANNE E. D AVIDSON , Director, and M ARTIN F. H OCKEY , J R

. , Assistant Director. Of counsel was J OSHUA P. M AYER , United States Department of Veterans Affairs, of Was hington, DC.

______________________

Before L OURIE , B RYSON , and T ARANTO , Circuit Judges.

P ER C URIAM

. Th ese two consolidated appeals stem from the long

running efforts of Shelia Winsett to receive benefits as the surviving spouse of Gary W. Jacks , a veteran

. 1 T he

1 Ms. Winsett has filed eight other appeals in this
court relating to her surviving spouse claim. Winsett v.SHELIA WINSETT v. SHINSEKI 3

couple married in 1969 and lived together until 1977, when they divorced. Mr. Jacks subsequently died in 1989. Ms. Winsett claims that, after their divorce, she and Mr. Jacks reconciled and lived together in a common law marriage. The appeals currently befo re us, however, stray far from her underlying benefits claim.
At issue are two mandamus petitions filed by Ms. Winsett, both of which were denied by the Court of A ppeals for Veterans Claim s (“CAVC”) and are now consol idated on appeal. Ms. Winsett filed the appeals after lodging three successive surviving spouse claims before a regional office (“RO”) of the Department of Veterans Affairs (“ DVA ”) , each one initiated before the appeal of the prior claim had run its course.

I

A

The RO denied Ms. Winsett’s first relevant claim in 2004 , finding that she did not qualify as Mr. Jacks’s surviving spouse. The Board of Veterans’ Appeals a ffirmed that decision in 200 5, and the CAVC affirmed the

Shinseki , 397 F. App’x 627 (Fed. Cir. 2010) ; Winsett v. Peake , 302 F. App’x 915 (Fed. Cir. 2008) ; Winsett v. Peake

, 283 F. App'x 796 (Fed. Cir. 2008); Winsett v. Nicholson

, 174 F. App’ x 567 (Fed. Cir. 2006) ; In re Winsett , 90 F. App’ x 398 (Fed. Cir. 2004) ; Winsett v. Principi , 341 F.3d 1329 (Fed. Cir. 2003) ; Winsett v. Principi , 65 F. App’ x 301 (Fed. Cir. 2003); and Winsett v. W est , 217 F.3d 854 (Fed. Cir. 1999)

.SHELIA WINSETT v. SHINSEKI 4

Board in 2007. This Court affirmed the CAVC in July of 2008. Winsett v. Peake , 283 F. App’x 796 (Fed. Cir. 2008).
By that time, Ms. Winsett had already filed a se cond surviving spouse cla im with the RO , which she filed the day after the Board affirmed the RO’s original dec ision. The RO denied th at new claim in 2005. Ms. Winsett then appealed that denial to the Board. On December 21, 2007, the Board determined that she had presented new and material evidence

, and it reopen ed her case, even though her original claim w as still pending on appeal

. Upon considering th e new and material evidence, the Board affirmed the RO’s denial of her claim . The Board also denied Ms. Winsett’s motion arguing that its 2005 decision constituted clear and unmistakable error (“ CUE ” ), because that decision had, by th at point, already been upheld by the CAVC and was therefore not subject to revision by the Board

. Ms. Winsett appealed th e Board’s 2007 decision to the CAVC, a rguing that the Board lacked jurisdiction over her second claim because her first claim was still pending on appeal. The court rejected that argument, noting that the Board has jurisdiction to reopen a case upon submi ssion of new and material evidence. S ee 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The court also rejected Ms. Winsett’s CUE claim as to the Board’s 2005 decision, because that claim had been finally adjudicated by the CAVC and this
court
, and therefore was law of the case. Winsett v. Shinseki

, No. 08

- 0210, 2010 WL 276193 (Vet. App. Jan. 26, 2010). This court affirmed the CAVC , holding that

“ there was no error in allowing [Ms. Winsett’s] claim to be reopened while the case was on appeal.” Winsett v. Shinseki , 397 F. App’x 627, 629 (Fed. Cir. 201 0). We further held that we lacked jurisdiction to review the Board’s determination that she and Mr. Jacks did no t have a common law marriage at the time of Mr. Jacks’s death. Id.

More than a year before this court’s decision on her second surviving spouse claim, Ms. Winsett filed a thirdSHELIA WINSETT v. SHINSEKI 5

such claim with the RO on March 27, 2009. The RO denied th at claim on April 16 , 2009 . Ms. Winsett then corresponded with the RO by mail, arguing tha t the RO had issued its denial too quickly to have reviewed her case properly and that the RO lacked jurisdiction to issue a decision while the denial of her second claim was still on appeal.
On December 6, 2011, the RO a greed with Ms. Winsett that it had lacked jurisdiction to issue its deni als of both her January 25, 2005

, and March 27, 2009

, claims (her second and third claims, respectively) while she had an earlier claim pending on appeal. 2 The RO stated that the denial of the January 2005 claim “was a lready before the Board of Veterans’ Appeals before anyone [at the RO] was aware of the situation.” The Board’s decision, as affirmed by the CAVC and this court, remained legally operable. But as to the denial of the March 2009 claim

, th e RO did no t issu e a Statement of the Case and did not respond to Ms. Winsett’s Notice of D isagreement

, thereby effectively closing her third claim

. The RO interpreted Ms. Winsett’s communication as a request to reopen the case, and it advised her how she could submit evidence supporting that request.

B

2 The CAVC note d that it is “unclear” whether the RO confessed error regarding Ms. Winsett’s second claim

, decided by the Board in 2007, or regarding some other action it may have taken as to Ms. Winsett’s third claim

. Winsett v. Shinseki

, No. 12

- 784, 2012 WL 1 155918

, at *1 (Vet. App. Apr. 6, 2012). Because the CAVC did not decide that issue and the resolution of that question is not necessary to decide th is case, we will assume the RO confe ssed error regarding the claim that prompted the Board’s 2007 decision. The government does not appear to dispute that characterization.SHELIA WINSETT v. SHINSEKI 6

On February 17, 2012, Ms. Winsett filed a petition for a writ of mandamus in the CAVC. Relying on the RO’s admission that it lacked jurisdiction to decide her second claim while the first was still on appeal, she asked the court to declare that the Board had lacked jurisdiction in December of 2007 to affirm the RO’s ruling. She asserted that if the Board had waited for this court to rule, it would have been bound by different facts

— namely, the fact s described in a portion of this court’s 2008 opinion affirming the CAVC

. See Winsett

, 283 F. App’x at 798. Ms. Winsett also requested that the CAVC order the Board to consider her CUE claim.
The CAVC dismissed the petition on April 6, 2012, explaining that this court had already affirmed the Board’s decision and had explicitly noted its authority to reopen a case based on new and material evidence. Th at determination was therefore binding on Ms. Winsett. Moreover, the court held that the Board’s deni al of Ms. Winsett’s CUE claim was proper because that decision had already been affirmed by the CAVC , and the Board therefore could not revise its CUE ruling. Ms. Winsett then took this appeal from the CAVC’s dismissal of her mandamus petition

. In the meantime, Ms. Winsett submitted a fourth surviving spouse clai m to the RO on April 24, 2012.
On May 9, 2012, a little more than a month after her first mandamus petition was dismissed, Ms. Winsett filed a second petition for mandamus in the CAVC. In
t hat petition she argued that the RO had violated her rights under the first and fifth amendments to the Const itution by holding that it lacked jurisdiction to process her appeal from the RO’s April 16, 2009

, denial of her third surviving spouse claim. The CAVC denied that petition on August 20, 2012. The court held that Ms. Winsett ha d provided no plausible basis to conclude that the RO’s decision regarding its jurisdiction, “even if legally in error,” violated her constitutional rights. Winsett v. Shins eki

, No. 12

- 1572, 2012 WL 3554585

, at *2 (Vet. App.SHELIA WINSETT v. SHINSEKI 7

Aug. 20, 2012)

. The court further ruled that Ms. Winsett had an alternative avenue to challenge the RO’s dec ision

— namely, the April 24, 2012

, claim to the RO

. Ms. Winsett now appeals from the CAVC’s dis missal of that mandamus petition as well.
Ms. Winsett has initiated additional proceedings that bear upon the issues in this case. While her first mandamus petition was pending before the CAVC, Ms. Winsett filed a motion before the Board asserting that the December 21, 2007, Board decision constituted CUE. On August 22, 2012, the Board denied th at motion, noting that the CAVC had already determined there was no CUE in the Board’s 2007 decision, and that the Board lacked authority to revi se that ruling. Ms. Winsett has appealed th at decision to the CAVC.
Finally, on August 10, 2012

— after the CAVC had dismissed the first mandamus petition but ten days before it ruled on her second mandamus petition

— Ms. Winsett filed a third mandamus petiti on in the CAVC, alleging numerous errors by the court , the RO, and the Board

, including an allegation that DVA e mployees had falsified or destroyed records relating to her various appeals

. The CAVC rejected the petition on November 1 , 2012, stating that M s. Winsett had exhausted her appellate rights with respect to the December 21, 2007, Board decisions. Wi nsett v. Shinseki , No. 12

- 2664

, 2012 WL 5360974 , at *5 (Vet. App. Nov. 1, 2012). In addition, the court sanctioned Ms. Winsett for abuse of process ; t he court stated

, “in light of the voluminous, repetitive, and frivolous filings received from Ms. Winsett, both in this case and in the past,” that with certain exceptions she would not be permitted to file any further pleadings before the CAVC without mov ing for permission and paying a filing fee

. Id.
at *5-7

. II
On appeal to this court, Ms. Winsett argues that it was improper for the RO to disclaim jurisdiction over herSHELIA WINSETT v. SHINSEKI 8

third surviving spouse claim on the ground that the appeal of her second case was still pending . She points out that the Board had earlier affirmed the RO’s denial of her second claim while the first was still pending

. The answer to her argument is that the DVA has jurisdiction to re

- open a case if it is presented with new and material evidence. “If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.” 38 U. S.C. § 5108; 38 C.F.R. § 3.156. Th e reopened c laim is a sep arate proceeding that is not tied to the fate of an earlier claim still on appeal. Sims v. Shinseki , 578 F.3d 1332, 1335 (Fed. Cir. 2009) (“While a request to reopen is not a new claim for benefits, it is treated as a new matter distinct from the original claim for VA benefits. ”)

. The Board in 2007 made a finding of new and m aterial evidence with regard to Ms. Winsett’s second claim

, origi nally brought before the RO in January of 2005

. 3 T hat decision, affirmed by the CAVC and this court,

su bsumed and rendered harmless the RO’s initial error in entertaining the second claim. 4 By contrast, there has been no finding of new and material evidence as to the third claim, brought in March of 2009. Without such a

3 Ms. Winsett argues that the Board improperly converted her CUE claim regarding its 2005 decision into

a submission of new and material evidence, but this court’s earlier ruling foreclosed any argument that the Board’s 2005 decision contained CUE

. Winsett

, 283 F. App’ x 796 (Fed. Cir. 2008).

4 Because the Board did not err in reopening the case, Ms. Winsett’s argument that she would have caught the error with the aid of counsel is beside the point. The RO’s error no longer had any effect after the Board’s decision was affirmed by the CAVC and t his court

.SHELIA WINSETT v. SHINSEKI 9

finding, the RO rightly determined that it could not disturb the Board’s December 2007 decision

, and it closed the case. See 38 U.S.C. § 7104.
For that reason, Ms. Winsett’s first mandamus p etition is meritless. The Board had jurisdiction to reopen her January 2005 claim in light of new and material evidence

. In addition, the Board correctly denied her motion to revive her CUE claim that this court had a lready decided on appeal. Winsett v. Shinseki , 397 F. Ap p’x 627 (Fed. Cir. 2010 ) . Our ruling became the law of the case and was not s ubject to further review by the Board. See Suel v. Sec’y of Health and Human Servs.

, 192 F.3d 981, 985 (Fed. Cir. 1999). As a result, Ms. Winsett does not have the clear right to relief from the Board’s December 2007 decision that is required to invoke t he extraordinary remedy of mandamus. Cheney v. U.S. Dist. Court for Dist. of Columbia , 542 U.S. 367, 381 (2004). Ms. Winsett has exhausted her appeals regarding the Board’s Decem ber 2007 decision, and our ruling affirming the Board’s decision and the CAVC’s judgment is final.

Ms. Winsett argues that a precedential opinion of the DVA’s General Counsel, VAOPGCPREC 20

- 94, su ggests that the Board lacks jurisdiction to act on any claim currently on appeal before this court. But that opinion is inapposite h ere . It applies only to appeals to this court of decisions in which the CAVC ha s remanded a case back to the Boa rd. While this court hears the appeal, the Board

may not act on the CAVC’s remand . The same is not true where the Board has itself reopened a case upon finding new and material evidence. In that situation, the Board has jurisdic tion to reopen and decide th at new and sep arate matter. See Sims , 578 F.3d at 1335

. The second mandamus petition fares no better. The RO’s determination that it cou ld not act on Ms. Winsett’s March 27, 2009

, claim rests on the principle that the RO may not disturb the Board’s rulings unless a claimant presents new and material evidence. We lack jurisdiction to review the factual question whether anySHELIA WINSETT v. SHINSEKI 10

new and material evidence was presented at that time

. 38 U.S.C. § 7292(d)(2). The RO’s jurisdictional determ ination did not deprive Ms. Winsett of any constitutional right or any other clear right that would justify the exceptional remedy of mandamus

. Ms. Winsett argues that if the Board had waited to issue its decisio n until this court had ruled she could have submitted a portion of our opinion as evidence showing that she and Mr. Jacks cohabited. The CAVC was correct
to dismiss that argument. This court’s 2008 opinio n stated that, “according to family and friends,” Ms. Winsett and Mr. Jacks “cohabited” for some time following their divorce. Winsett

, 283 F. App’x at 798. But that reference
to the record does not constitute a factual finding. The passage merely descr ibes certain evidence ; neither that passage nor anything else in this court’s opinion const itutes a finding as to whether Mr. Winsett and Mr. Jacks cohabited.
Moreover, Ms. Winsett also has an alternative forum to adjudicate her u nderlying surviving spou se claim: the April 24, 2012

, proceeding she has filed with the RO. S he is free to present any new and material evidence on the surviving spouse issue that she would have presented had the RO heard those earlier claims . I f she objects to the RO’s determi nation, she may appeal to the Board and then to the CAVC, provided that she abides by the filing requirements that court has imposed. Relief by writ of mandamus is plainly inappropri ate under these circu mstances.

III
In support of her various contentions, Ms. Winsett has made a number of accusations against DVA and judicial personnel. She accuses the DVA of fabricating records to suggest that she had appealed the 2009 RO decision to the Board , supposedly in an attempt to convince the CAVC to d ismiss her mandamus petitions in light of this imaginary pending appeal. Ms. Winsett does not ad e-SHELIA WINSETT v. SHINSEKI 11

quately support such a serious charge , and the CAVC did not rely on any alleged pending claim before the Board to deny her mandamus petitions.

Ms. Winsett als o accuses the CAVC of holding ex parte communications with the DVA and otherwise impugns the integrity and impartiality of the members of that
court . These unsupported accusations are frivolous. She further contends that the CAVC’s decision not to assign her case to a three

- judge panel deprived her of due pr ocess. Th at argument , too, is baseless. See Arnesen v. Principi , 300 F.3d 1353, 1360

- 61 (Fed. Cir. 2002); 38 U.S.C. § 7254(b).
Finally, Ms. Winsett seeks review of the CAVC’s sanctions order entered as a remedy for her abuse of process. That order was not even issued when Ms. Wi nsett filed the two mandamus petitions here at issue

, so it is not properly before this court in these appeals.

AFFIRMED