This morning, the Federal Circuit issued a nonprecedential opinion in a veterans case and a nonprecedential order denying a petition for an interlocutory appeal. The court also issued two Rule 36 judgments. Here is the introduction to the opinion, text from the order, and links to the Rule 36 judgments.
May v. McDonough (Nonprecedential)
Appellant, Robert J. May, appeals a decision of the U.S. Court of Appeals for Veterans Claims (“Veterans Court”), affirming a decision of the Board of Veterans’ Appeals (“Board”) denying Mr. May’s request for: (1) entitlement to compensation benefits for right and left shoulder disabilities pursuant to 38 U.S.C. § 1151; (2) an earlier effective date for the grant of service connection for depression, secondary to herpes simplex virus 2 (“HSV-2”); (3) to revise an October 2004 rating decision regarding his disability rating assigned for sciatic nerve paralysis, bilateral knee disability, and a total disability rating based on individual unemployability (“TDIU”) premised on clear and unmistakable error (“CUE”); and (4) to revise an April 2007 rating decision assigning a non-compensable rating for tinea versicolor. May v. Wilkie, No. 17-4809, 2019 WL 3366794, at *1 (Vet. App. July 26, 2019); see R.A. 19 (Judgment); see also R.A. 20–61 (Board Decision). The Veterans Court also determined that it “lack[ed] jurisdiction to address [Mr. May]’s argument that the [S]ecretary lacks authority to issue a non[-]compensable rating.” May, 2019 WL 3366794, at *9. To the extent Mr. May appeals the denial of his entitlement benefits for right and left shoulder disabilities under 38 U.S.C. § 1151, we have jurisdiction pursuant to 38 U.S.C. § 7292(a), and affirm. To the extent Mr. May argues that the Veterans Court should have reached the merits of his other underlying claims, we dismiss for lack of jurisdiction.
Arunachalam v. McNamara (Nonprecedential Order)
The United States District Court for the District of Delaware denied Lakshmi Arunachalam’s motion for leave to proceed in forma pauperis (“IFP”). Dr. Arunachalam now petitions this court pursuant to 28 U.S.C. § 1292(b) for permission to bring an interlocutory appeal in this case. She also moves to be allowed to proceed IFP in this court.
Section 1292(b) authorizes a court of appeals to permit an appeal of an interlocutory order only after the district court has certified that that the appeal presents a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. And here, no such certification was issued. Therefore, no appeal can be brought under section 1292(b).
Although Dr. Arunachalam has not filed a notice of appeal from the district court’s order denying her IFP motion, we may treat her petition as such, because those orders are immediately appealable. See Roberts v. U.S Dist. Court for the N. Dist. of Cal., 339 U.S. 844, 845 (1950); Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 n.1 (2d Cir. 1988) (citing Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987); Potnick v. E. State Hosp., 701 F.2d 243 (2d Cir. 1983)).
Given that Dr. Arunachalam has also moved to proceed IFP before this court, it is appropriate to assess whether her appeal is frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i) (stating that the court shall dismiss the case at any time if the court determines that . . . the . . . appeal is frivolous”); Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296, 307–08 (1989) (explaining that while § 1915 “authorizes courts to dismiss a ‘frivolous or malicious’ action, . . . there is little doubt they would have the power to do so even in the absence of this statutory provision”).
The determination of whether to allow a litigant to proceed IFP is generally committed to the sound discretion of the trial court. See Cotto v. Tennis, 369 F. App’x 321, 322 (3d Cir. 2010) (citing Jones v. Zimmerman, 752 F.2d 76, 78 (3d. Cir. 1985) (“We review the denial of leave to proceed IFP for abuse of discretion.”). Here, the district court denied Dr. Arunachalam’s motion based on inconsistencies in her applications and failure to establish an inability to pay the fee.
Dr. Arunachalam has failed to make any cogent, nonfrivolous argument as to why that determination was incorrect, let alone an abuse of discretion. Instead, Dr. Arunachalam petition before this court consists for the most part of assertions going to the merits of her complaint: that the defendants violated their oaths of office and the Constitution during the previous adjudications that resulted in the invalidation of her patents. Because her appeal from the denial of IPF status in the district court is clearly frivolous, the court finds dismissal of the appeal appropriate.
In light of our disposition of the appeal, Dr. Arunachalam’s request to proceed IFP before this court is moot.
IT IS ORDERED THAT:
(1) This matter is dismissed.
(2) All pending motions are denied as moot.