Alford v. McDonough

• Court: Court of Appeals for the Federal Circuit
• Decided: April 13, 2022
• Docket: 21-2029
• Status: Unpublished

Opinion

Case: 21-2029 Document: 35 Page: 1 Filed: 04/13/2022

NOTE: This disposition is nonprecedential.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 Divi- sion, 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, Washing- ton, DC. ______________________ Case: 21-2029 Document: 35 Page: 2 Filed: 04/13/2022

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 (“Vet- erans 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 Em- ployment (subsequently renamed “Veteran Readiness and Employment”) program is intended to “provide [] all ser- vices and assistance necessary to enable veterans with ser- vice-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 pur- sued the rehabilitation services outlined in [his rehabilita- tion] 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 rever- sal of the discontinuance based on “Clear and Unmistaka- ble 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: 3 Filed: 04/13/2022

ALFORD v. MCDONOUGH 3

decision. Upon review of his claim, the RO upheld the dis- continuance, advising Mr. Alford that he would need to re- apply 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 develop- ment. 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 be- fore 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 deter- mines 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 administra- tive error. The VA acknowledged that Mr. Alford had filed a request for equitable relief, but because Mr. Alford’s ap- peal 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”), seek- ing 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: 4 Filed: 04/13/2022

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 ap- peals 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 jurisdic- tion to “decide all relevant questions of law, including in- terpreting constitutional and statutory provisions.” § 7292(d)(1). “Except to the extent that an appeal . . . pre- sents a constitutional issue,” we “may not review (A) a chal- lenge 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 ju- risdiction 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 in- voked 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 peti- tioner 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, altera- tions, and citations omitted). Where the petitioner seeks Case: 21-2029 Document: 35 Page: 5 Filed: 04/13/2022

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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 un- reasonably delayed”), the Veterans Court must also con- sider 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 deci- sions must be governed by a ‘rule of reason’; (2) where Congress has provided a timeta- ble 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 tol- erable 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 inter- ests prejudiced by delay; and (6) the court need not find ‘any impropriety lurking be- hind 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: 6 Filed: 04/13/2022

II The Veterans Court did not abuse its discretion or com- mit 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 pro- cess 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 Mar- tin, 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 fi- nally 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 man- damus relief as to Mr. Alford’s request for equitable relief, since mandamus relief is only available “in aid of the juris- diction already possessed by a court,” see Cox v. West, 149 F.3d 1360, 1363 (Fed. Cir. 1998) (quotation marks omit- ted), 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 ap- plication of law to facts, see Cox, 149 F.3d at 1363 (“[The Act] provides for the issuance of writs ‘in aid of’ the juris- diction 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: 7 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 jurisdic- tion.”); 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.