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Wilson v. Gibson

United States Court of Appeals, Federal Circuit

June 10, 2014

JOHN D. WILSON, JR., Claimant-Appellant,
v.
SLOAN D. GIBSON, Acting Secretary of Veteran Affairs, Respondent-Appellee

Appeal fro the United States Court of Appeals for Veterans Claims in No. 11-0165, Judge Lawrence B. Hagel.

AFFIRMED-IN-PART AND DISMISSED-IN-PART.

JOHN D. WILSON, JR., of Zephyr Hills, Florida, Pro se.

KATY M. BARTELMA, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee. With her on the brief were STUART F. DELERY, Principal Deputy Assistant Attorney General, and JEANNE E. DAVIDSON, Director. Of counsel were MICHAEL J. TIMINSKI, Deputy Assistant General Counsel, and RACHAEL T. BRANT, Attorney, United States Department of Veteran Affairs, of Washington, DC.

Before MOORE, CLEVENGER, and O'MALLEY, Circuit Judges.

OPINION

Page 1364

Clevenger, Circuit Judge

John David Wilson, Jr. appeals from the final decision of the United States Court of Appeals for Veterans Claims (" Veterans Court" ) affirming the decision of the Board of Veterans' Appeals (" Board" ) denying him a waiver of compensation overpayment in the amount of $15,464.50. Wilson v. Shinseki, No. 11-0165 (Vet. App. Aug. 28, 2012) (" Mem. Op ." ). The Veterans Court upheld the validity of the overpayment debt and found no clear error in the Board's findings that Mr. Wilson did not qualify for waiver. Id.

Mr. Wilson timely appealed to this court. He presents three issues. First, he challenges the validity of the overpayment debt. Second, he contends that the Board erred in denying him waiver of overpayment. And third, he presents a clear and unmistakable error claim for entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (" TDIU" ). For the reasons set forth below, we affirm the decision of the Veterans Court on the first issue and dismiss for want of jurisdiction on the other two issues.

I

Mr. Wilson served the Navy honorably from January 1986 to January 1990 and again from January 1992 to March 1994. He was given a 70% disability rating for several service-connected physical conditions.

On June 27, 2001, Mr. Wilson was found guilty by a jury in the 13th Judicial Circuit Court of Florida of two felonies: attempted first degree murder with a firearm and aggravated battery with a firearm. He was sentenced to two concurrent life sentences on October 10, 2001, at which time he was incarcerated. He began to serve his sentences on October 19, 2001. The Second District Court of Appeal of Florida affirmed per curiam Wilson's convictions and sentences on July 9, 2003. Wilson v. State, No. 2D01-4868, 853 So.2d 424 (Fla. Dist. Ct. App. 2003). The mandate issued on September 10, 2003.

Mr. Wilson then pursued collateral attacks against his conviction. On February 1, 2005, the Florida Second District Court of Appeal denied his state petition for writ of habeas corpus, Wilson v. State, No. 2D04-3354, 896 So.2d 761 (Fla. Dist. Ct. App. 2005), and on February 16, 2005, the Florida Supreme Court declined review. Wilson v. State, No. SC05-274, 895 So.2d 1068 (Fla. 2005). Petitioning the United States District Court for the Middle District of Florida fared no better. Wilson v. Sec'y, Dep't of Corr., No. 8:07-cv-2185, 2009 WL 2900716 (M.D. Fla. Sept. 4, 2009). The United States Supreme Court ultimately denied his petition for certiorari on October 4, 2010. Wilson v. McNeil, 131 S.Ct. 249, 178 L.Ed.2d 165 (2010).

For veterans who have service-connected disabilities rated at 20% or more and who are " incarcerated . . . for a period in excess of sixty days for conviction of a ...


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