Veteranclaims’s Blog

April 14, 2022

FedCir Application; mandamus relief request for equitable relief; mandamus relief is only available “in aid of the jurisdiction already possessed by a court,” see Cox v. West, 149 F.3d 1360, 1363 (Fed. Cir. 1998); the Veterans Court lacks appellate jurisdiction over requests to the VA for equitable relief, see Burris v. Wilkie, 888 F.3d 1352, 1357–58 (Fed. Cir. 2018);

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit


LEROY ALFORD,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee


2021-2029


Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-7593, Judge Grant Jaquith.


Decided: April 13, 2022


LEROY ALFORD, Temple Hills, MD, pro se.
IN KYU CHO, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by BRIAN M.
BOYNTON, CLAUDIA BURKE, MARTIN F. HOCKEY, JR;
AMANDA BLACKMON, Y. KEN LEE, Office of General Counsel,
United States Department of Veterans Affairs, Washington,
DC.


Case: 21-2029 Document: 35 Page: 1 Filed: 04/13/2022
2 ALFORD v. MCDONOUGH
Before DYK, REYNA, and TARANTO, Circuit Judges.
PER CURIAM.
Veteran Leroy Alford appeals from an order of the
United States Court of Appeals for Veterans Claims (“Veterans
Court”) denying his petition for a writ of mandamus.
We affirm.
BACKGROUND
The appellant, veteran Leroy Alford, served in the
United States Air Force from 1982 to 2006. In June 2010,
Mr. Alford applied for Department of Veterans Affairs
(“VA”) Vocational Rehabilitation and Employment
(“VR&E”) benefits. The Vocational Rehabilitation and Employment
(subsequently renamed “Veteran Readiness and
Employment”) program is intended to “provide [] all services
and assistance necessary to enable veterans with service-
connected disabilities to achieve maximum
independence in daily living and, to the maximum extent
feasible, to become employable and to obtain and maintain
suitable employment.” 38 U.S.C. § 3100; 38 C.F.R.
§§ 21.1(a), 21.70. Thereafter, Mr. Alford received VR&E
benefits until April 22, 2016, when he was notified that his
benefits had been discontinued because he “ha[d] not pursued
the rehabilitation services outlined in [his rehabilitation]
plan and [had] not respond[ed] to [the VA’s]
attempt[s]” to contact him. S.A. 64–65.
On May 18, 2016, Mr. Alford requested administrative
review of the discontinuance, disputing the contention that
he had not responded to attempted contacts by the VA and
asserting that he had been “pursuing development of a
business plan.” S.A. 63. The following month, he filed a
claim with the VA Regional Office (“RO”), seeking a reversal
of the discontinuance based on “Clear and Unmistakable
Error (CUE).” S.A. 61. The RO processed Mr. Alford’s
claim as a notice of disagreement with the discontinuance
Case: 21-2029 Document: 35 Page: 2 Filed: 04/13/2022
ALFORD v. MCDONOUGH 3
decision. Upon review of his claim, the RO upheld the discontinuance,
advising Mr. Alford that he would need to reapply
for VR&E benefits.
Mr. Alford appealed the RO’s decision to the Board of
Veterans’ Appeals (“Board”) on July 28, 2017. The Board
held a hearing on February 4, 2019, and on June 3, 2019,
remanded the matter to the RO for further factual development.
On December 1, 2020, Mr. Alford was notified that
his case had returned to the Board post-remand and that a
new Veterans Law Judge (“VLJ”) at the Board had been
assigned to his matter. The new VLJ held a hearing on
July 7, 2021, and Mr. Alford’s appeal remains pending before
the Board.
While Mr. Alford’s CUE claim was pending before the
Board, Mr. Alford submitted a request for equitable relief
to the Secretary. Pursuant to 38 U.S.C. § 503(a), equitable
relief may be available if the Secretary of the VA determines
that a veteran has been denied benefits due to an
administrative error. Mr. Alford asserted that his VR&E
benefits had been discontinued as a result of administrative
error. The VA acknowledged that Mr. Alford had filed
a request for equitable relief, but because Mr. Alford’s appeal
of the discontinuation of his VR&E benefits was still
pending before the Board, the VA stayed consideration of
the request for equitable relief.
While both the Board appeal and request for equitable
relief were pending, Mr. Alford filed a petition for a writ of
mandamus from the Veterans Court (“the petition”), seeking
to compel a decision on his Board appeal and request
for equitable relief. On February 26, 2021, the Veterans
Court denied the petition. See Alford v. McDonough,
No. 20-7593 (Vet. App. Feb. 26, 2021). The court explained
that it could not issue a writ of mandamus to the Secretary
as to the request for equitable relief because it was outside
of the court’s appellate jurisdiction. With respect to the
Board appeal, the court held that Mr. Alford was not
Case: 21-2029 Document: 35 Page: 3 Filed: 04/13/2022
4 ALFORD v. MCDONOUGH
entitled to a writ of mandamus under the law. Specifically,
the court found that Mr. Alford had not established undue
delay by the Board in deciding his appeal. Mr. Alford appeals
to this court. We have jurisdiction under 38 U.S.C.
§ 7292(a).
DISCUSSION
I
Our jurisdiction to review decisions of the Veterans
Court under 38 U.S.C. § 7292 is limited. We have jurisdiction
to “decide all relevant questions of law, including interpreting
constitutional and statutory provisions.”
§ 7292(d)(1). “Except to the extent that an appeal . . . presents
a constitutional issue,” we “may not review (A) a challenge
to a factual determination, or (B) a challenge to a law
or regulation as applied to the facts of a particular
case.” § 7292(d)(2). We have held that these limitations
apply equally to but do not “insulate from our review [the
Veterans Court’s] decisions under the All Writs Acts
[“AWA”], 28 U.S.C. § 1651(a).” Lamb v. Principi, 284 F.3d
1378, 1381–82 (Fed. Cir. 2002). That is, this court has jurisdiction
to review the Veterans Court’s decision “whether
to grant a mandamus petition that raises a non-frivolous
legal question.” Beasley v. Shinseki, 709 F.3d 1154, 1158
(Fed. Cir. 2013).
“The remedy of mandamus is a drastic one, to be invoked
only in extraordinary situations.” Kerr v. U.S. Dist.
Ct. for N. Dist. of Cal., 426 U.S. 394, 402 (1976). For any
court to grant a writ of mandamus, three requirements
must be satisfied: (1) the petitioner “must have no other
adequate means to attain” the desired relief; (2) the petitioner
must show that the right to the relief is “clear and
indisputable”; and (3) exercising its discretion, the issuing
court must decide that the remedy “is appropriate under
the circumstances.” Cheney v. U.S. Dist. Ct. for D.C., 542
U.S. 367, 380–81 (2004) (internal quotation marks, alterations,
and citations omitted). Where the petitioner seeks
Case: 21-2029 Document: 35 Page: 4 Filed: 04/13/2022
ALFORD v. MCDONOUGH 5
relief from “unreasonable delay” in VA proceedings, see 38
U.S.C. § 7261(a)(2) (providing that the Veterans Court may
“compel action of the Secretary unlawfully withheld or unreasonably
delayed”), the Veterans Court must also consider
the factors articulated in Telecommunications
Research & Action Center v. FCC (TRAC), 750 F.2d 70, 79
(D.C. Cir. 1984).1 See Martin v. O’Rourke, 891 F.3d 1338,
1348 (Fed. Cir. 2018). We review denial of a petition for a
writ of mandamus for abuse of discretion. See Lamb, 284
F.3d at 1384.
1 The six TRAC factors are:
(1) [T]he time agencies take to make decisions
must be governed by a ‘rule of reason’;
(2) where Congress has provided a timetable
or other indication of the speed with
which it expects the agency to proceed in
the enabling statute, that statutory scheme
may supply content for this rule of reason;
(3) delays that might be reasonable in the
sphere of economic regulation are less tolerable
when human health and welfare are
at stake; (4) the court should consider the
effect of expediting delayed action on
agency activities of a higher or competing
priority; (5) the court should also take into
account the nature and extent of the interests
prejudiced by delay; and (6) the court
need not find ‘any impropriety lurking behind
agency lassitude’ in order to hold that
agency action is unreasonably delayed.
Martin v. O’Rourke, 891 F.3d 1338, 1344–45 (Fed. Cir.
2018) (quoting TRAC, 750 F.2d at 80).
Case: 21-2029 Document: 35 Page: 5 Filed: 04/13/2022
6 ALFORD v. MCDONOUGH
II
The Veterans Court did not abuse its discretion or commit
legal error in denying Mr. Alford’s petition. Mr. Alford
has not demonstrated entitlement to mandamus relief on
the basis of undue delay by the Board. The Veterans Court
properly applied the TRAC factors in assessing whether
Mr. Alford was entitled to a writ compelling the VA to process
his claims. Taken together, the Veterans Court found
the TRAC factors weighed against issuing a writ because
the Board was processing Mr. Alford’s appeal and the delay
was “the unavoidable result of ‘practical realities of the
burdened veterans’ benefits system.’” S.A. 4 (quoting Martin,
891 F.3d at 1347). We see no abuse of discretion or
legal error in that result.
Although we deny mandamus relief, we do note that it
has taken an exceptionally long time for the Board to finally
resolve Mr. Alford’s appeal. It has been more than
six years since Mr. Alford filed. We assume that the Board
will act promptly in deciding Mr. Alford’s appeal.
It also was proper for the Veterans Court to deny mandamus
relief as to Mr. Alford’s request for equitable relief,
since mandamus relief is only available “in aid of the jurisdiction
already possessed by a court,” see Cox v. West, 149
F.3d 1360, 1363 (Fed. Cir. 1998) (quotation marks omitted),
and the Veterans Court lacks appellate jurisdiction
over requests to the VA for equitable relief, see Burris v.
Wilkie, 888 F.3d 1352, 1357–58 (Fed. Cir. 2018)
.
Finally, Mr. Alford also asks this court to vacate the
Veterans Court decision and issue a decision on the merits
of his claims “de novo.” Appellant’s Inf. Br. at 3. But the
AWA does not expand our jurisdiction to consider the application
of law to facts, see Cox, 149 F.3d at 1363 (“[The
Act] provides for the issuance of writs ‘in aid of’ the jurisdiction
already possessed by a court.”), and in any event,
mandamus in these circumstances is not a mechanism for
rendering a merits decision, see Bankers Life & Cas. Co. v.
Case: 21-2029 Document: 35 Page: 6 Filed: 04/13/2022
ALFORD v. MCDONOUGH 7
Holland, 346 U.S. 379, 383 (1953) (“The office of a writ
of mandamus [may not] be enlarged to actually control the
decision of the trial court rather than used in its traditional
function of confining a court to its prescribed jurisdiction.”);
Lamb, 284 F.3d at 1384 (explaining that a writ
of mandamus cannot be used as a substitute for an appeal).
AFFIRMED
COSTS
No costs.
Case: 21-2029 Document: 35 Page: 7 Filed: 04/13/2022

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