In Re RUSH

• Court: Court of Appeals for the Federal Circuit
• Decided: October 18, 2023
• Docket: 23-142
• Status: Unpublished

Opinion

Case: 23-142 Document: 9 Page: 1 Filed: 10/18/2023

NOTE: This order is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

In re: THOMAS L. RUSH, Petitioner ______________________

2023-142 ______________________

On Petition for Writ of Mandamus to the United States Court of Appeals for Veterans Claims in Nos. 15-4845 and 22-1168, Senior Judge Lawrence B. Hagel. ______________________

ON PETITION AND MOTION ______________________

Before REYNA, TARANTO, and HUGHES, Circuit Judges. PER CURIAM. ORDER Thomas L. Rush has filed a petition seeking a writ of mandamus directing various relief. He also moves to pro- ceed in forma pauperis with regard to the petition. In 2016, the United States Court of Appeals for Veter- ans Claims (“CAVC”) entered judgment in CAVC No. 15- 4845 dismissing Mr. Rush’s appeal from the denial of his benefits claims for lung and heart disorders. In February 2023, the CAVC also entered judgment in CAVC No. 22- 1168 affirming the denial of Mr. Rush’s benefits claim for Case: 23-142 Document: 9 Page: 2 Filed: 10/18/2023

2 IN RE: RUSH

a cardiovascular disorder. Mr. Rush did not file a timely appeal from either of those cases. Mr. Rush’s petition now seeks, inter alia, payment of his claim in CAVC No. 15-4845 and the “declassification” of CAVC No. 22-1168. * ECF No. 2 at 1. But mandamus is an extraordinary remedy, available only where the peti- tioner shows: (1) a clear and indisputable right to relief; (2) there are no adequate alternative legal channels through which he may obtain that relief; and (3) the grant of man- damus is appropriate under the circumstances. See Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380-81 (2004). Mr. Rush has not met that standard here. Generally, “[m]andamus relief is not appropriate when a petitioner fails to seek relief through the normal appeal process.” In re Fermin, 859 F. App’x 904, 905 (Fed. Cir. 2021); see also Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26 (1943) (finding that mandamus “may not appropriately be used merely as a substitute for the appeal procedure”); In re Pollitz, 206 U.S. 323, 331 (1907) (explaining “manda- mus cannot . . . be used to perform the office of an appeal”). Because Mr. Rush did not timely raise his challenges in a normal appeal, mandamus is not appropriate here. Accordingly,

* Mr. Rush also requests the removal of an attorney “imposed on him secretly.” ECF No. 2 at 1. However, the CAVC’s February 2023 decision noted that Mr. Rush was “[s]elf-represented.” Id. at 4. Case: 23-142 Document: 9 Page: 3 Filed: 10/18/2023

IN RE: RUSH 3

IT IS ORDERED THAT: The petition and all pending motions are denied. FOR THE COURT

October 18, 2023 Date