Kramer v. Wilkie

• Court: Court of Appeals for the Federal Circuit
• Decided: January 11, 2021
• Docket: 20-2112
• Status: Unpublished

Opinion

Case: 20-2112 Document: 16 Page: 1 Filed: 01/11/2021

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

KAREN KRAMER, Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2020-2112 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 19-6754, Judge Amanda L. Mere- dith. ______________________

Decided: January 11, 2021 ______________________

KAREN KRAMER, Mission Viejo, CA, pro se.

ZACHARY JOHN SULLIVAN, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, for respondent-appellee. Also repre- sented by JEFFREY B. CLARK, TARA K. HOGAN, ROBERT EDWARD KIRSCHMAN, JR.; Y. KEN LEE, BRYAN THOMPSON, Office of General Counsel, United Stats Department of Vet- erans Affairs, Washington, DC. Case: 20-2112 Document: 16 Page: 2 Filed: 01/11/2021

______________________

Before PROST, Chief Judge, WALLACH and CHEN, Circuit Judges. PER CURIAM. Appellant, Karen Kramer, appeals an order and judg- ment of the U.S. Court of Appeals for Veterans Claims (“Veterans Court”) denying her petition for a writ of man- damus. See Kramer v. Wilkie, No. 19-6754, 2020 WL 1238376, at *2 (Vet. App. Mar. 16, 2020); S.A. 32 (Judg- ment). 1 To the extent Ms. Kramer appeals the denial of her petition for writ of mandamus, we have jurisdiction pursu- ant to 38 U.S.C. § 7292(a) and (c), and affirm. To the extent Ms. Kramer argues that the Veterans Court should have reached the merits of her underlying claim, we dismiss for lack of jurisdiction. BACKGROUND The instant appeal concerns the denial of Ms. Kramer’s petition for a writ of mandamus by the Veterans Court. Ms. Kramer is the stepdaughter of the Veteran in this mat- ter, Paul Reiss, who owned a Veterans Affairs (“VA”) life insurance policy under the National Service Life Insurance (“NSLI”) program. S.A. 11. 2 In addition to the NSLI policy, Mr. Reiss also purchased a private life insurance policy from MetLife Insurance Company. Metro. Life Ins. Co. v.

1 In keeping with the parties’ naming of the appen- dices, “A.A.” refers to the appendix attached to Ms. Kra- mer’s opening brief, and “S.A.” refers to the appendix attached to the Secretary of Veterans Affairs’ (“the Secre- tary”) response brief. 2 For ease of reference, we cite to the Board’s undis- puted findings of fact, unless otherwise noted. See J.A. 11– 14 (Vacate Order), 22–28 (Remand Order); see also Appel- lant’s Br. 4 (“The facts in this case are not in dispute.”). Case: 20-2112 Document: 16 Page: 3 Filed: 01/11/2021

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Cohen, No. 11-cv-04108, 2013 WL 5537359, at *1 (E.D.N.Y. Oct. 7, 2013); S.A. 12. After Mr. Reiss died in Febru- ary 2008, Sylvia Reiss, Mr. Reiss’s wife and mother of Ms. Kramer, filed a claim for the insurance benefits as the sole primary beneficiary under the NSLI policy. S.A. 23. Ms. Reiss died in February 2009, and Ms. Kramer pro- ceeded with Ms. Reiss’s claim. S.A. 23–24. 3 In April 2009, the VA denied Ms. Reiss’s claim after determining that Mr. Reiss had changed the primary beneficiary on his NSLI policy to his three biological children: Lawrence Reiss, Joette Cohen, and Elissa Harris. A.A. 4. Mr. Reiss made the exact same change to his private life insurance policy. A.A. 5. Ms. Kramer appealed the VA’s decision to the Board of Veterans’ Appeals (“Board”), S.A. 22, and chal- lenged the changes made to the private life insurance pol- icy before the U.S. District Court for the Eastern District of New York (“District Court”), see Metro. Life Ins., 2013 WL 5537359, at *1. In February 2014, Ms. Kramer and Mr. Reiss’s biologi- cal children agreed to settle the NSLI and private life in- surance policy disputes, and a copy of the agreement (“the Settlement Agreement”) was submitted to the District Court. Stipulation of Settlement, Metro. Life Ins. Co. v. Co- hen, No. 11-cv-04108 (E.D.N.Y. Feb. 24, 2014), ECF. No. 40. The relevant terms of the agreement state that “it is . . . stipulated and agreed that the proceeds of the life in- surance policy issued by the [VA] on the life of Paul Reiss . . . shall be split . . . into two equal one half shares, with the [biological] children of Paul Reiss taking one equal half and the children of Sylvia Reiss taking one equal half.” Id. at 1–2. The District Court accepted the Settlement Agreement and stated that while “[t]he terms agreed [to] concerning the [VA] policy [are] part of this agreement,”

3 Ms. Kramer is the personal representative of Ms. Reiss’s estate. S.A. 11. Case: 20-2112 Document: 16 Page: 4 Filed: 01/11/2021

they were “not part of the case before th[e] [District C]ourt.” Docket Entry, Metro. Life Ins. Co. v. Cohen, No. 11-cv-04108 (E.D.N.Y. Feb. 24, 2014), ECF. No. 40. In September 2014, Ms. Kramer submitted a copy of the Set- tlement Agreement to the VA and the Regional Office & Insurance Center (“ROIC”) and requested that the pro- ceeds of the NSLI policy be distributed in accordance with the Settlement Agreement. S.A. 24. In October 2016, Ms. Kramer submitted email correspondence (“the 2016 Email Correspondence”) to the VA and ROIC that further explained that “the parties were all in agreement and that the matter was no longer contested[.]” S.A. 25. In Novem- ber 2017, the Board dismissed Ms. Kramer’s appeal as it interpreted the 2016 Email Correspondence submission as a request to withdraw the appeal. S.A. 25. In Janu- ary 2018, Ms. Kramer filed a motion for reconsideration and “clarified that she did not intend to withdraw [her] ap- peal and reiterated her request that the Board issue an or- der mandating that the . . . NSLI proceeds be distributed” pursuant to the Settlement Agreement. S.A. 25. 4 In September 2019, Ms. Kramer filed a petition for a writ of mandamus (“Petition”) with the Veterans Court, seeking an order to compel the VA to distribute the pro- ceeds of the NSLI in accordance with the Settlement Agree- ment. S.A. 4–6. In October 2019, the Board vacated its dismissal, reinstated Ms. Kramer’s appeal, and scheduled a hearing for December 2019. S.A. 25. Consequently, the Veterans Court deferred ruling on the Petition until after the December 2019 Board hearing. S.A. 8. In Decem- ber 2019, the Board concluded that the VA “ha[d] not made

4 According to the Veterans Court, the “VA has al- ready disbursed the NSLI policy proceeds” to Mr. Reiss’s biological children, Kramer, 2020 WL 1238376, at *1; how- ever, it is unclear from the record when exactly the VA dis- tributed the proceeds. Case: 20-2112 Document: 16 Page: 5 Filed: 01/11/2021

KRAMER v. WILKIE 5

an initial determination as to whether it would be proper to disburse the proceeds of the . . . NSLI policy in accord- ance with the . . . [S]ettlement [A]greement,” S.A. 27, and therefore remanded Ms. Kramer’s claim back to the VA, S.A. 28; see S.A. 22–28. In January 2020, on remand, the VA determined that: (1) it was “precluded by federal law from paying the policy proceeds according to the . . . [S]et- tlement [A]greement”; and (2) although “federal law per- mits designated beneficiaries to assign their interest to a certain class of people, such as a widow, [the] VA cannot compel the designated beneficiaries to assign their interest in the policy proceeds to [Ms.] Reiss’[s] estate.” S.A. 15; see S.A. 14–16. In February 2020, Ms. Kramer appealed the VA’s deci- sion to the Board, S.A. 17, which appears to be pending be- fore the Board. See generally S.A. 17. 5 Meanwhile, in March 2020, the Veterans Court denied Ms. Kramer’s Pe- tition. Kramer, 2020 WL 1238376, at *2. The Veterans Court explained that Ms. Kramer “ha[d] not demonstrated that she lack[ed] adequate alternative means to attain the relief she desires[,]” and that Ms. Kramer’s “remedy in this case is to pursue her appeal before the Board.” Id. Ms. Kramer filed a motion for panel consideration and the panel adopted the single judge’s decision. S.A. 29–30. Ms. Kramer appealed.

5 The Veterans Court stated that “the case will soon be returned to the Board for adjudication,” Kramer, 2020 WL 1238376, at *1; however, the Secretary and Ms. Kra- mer are both silent as to whether the Board has adjudi- cated her February 2020 appeal, see Appellee’s Br.; Appellant’s Reply 12 n.3. Accordingly, we presume the ap- peal is pending before the Board. Case: 20-2112 Document: 16 Page: 6 Filed: 01/11/2021

DISCUSSION I. Standard of Review and Legal Standard Our jurisdiction in appeals from 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.” 38 U.S.C. § 7292(d)(1). Except where a constitutional claim is raised, we “may not review (A) a challenge to a factual determina- tion, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2); see Wanless v. Shinseki, 618 F.3d 1333, 1336 (Fed. Cir. 2010). Those limits apply equally to an appeal under § 7292 of a Veterans Court decision on a petition for a writ of manda- mus; in particular, we may not review a Veterans Court decision whether to grant a mandamus petition asserting a statutory claim unless a “non-frivolous legal question” is properly presented. Beasley v. Shinseki, 709 F.3d 1154, 1158 (Fed. Cir. 2013); see Robles v. Wilkie, 815 F. App’x 527, 528 (Fed. Cir. 2020) (dismissing an appeal from a Veterans Court decision dismissing-in-part and denying-in-part a petition for a writ of mandamus, where the petitioner “ha[d] not identified a non-frivolous legal question” on ap- peal). Under the All Writs Act (“AWA”), a petitioner may seek a writ of mandamus from the Veterans Court. See 28 U.S.C. § 1651 (providing, in relevant part, that “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdic- tions and agreeable to the usages and principles of law”); see Cox v. West, 149 F.3d 1360, 1363–64 (Fed. Cir. 1998) (holding that the AWA extends to the Veterans Court). “The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.” Kerr v. U.S. Dist. Ct. for the 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 Case: 20-2112 Document: 16 Page: 7 Filed: 01/11/2021

KRAMER v. WILKIE 7

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 de- cide that the remedy “is appropriate under the circum- stances.” Cheney v. U.S. Dist. Ct. for the Dist. of D.C., 542 U.S. 367, 380–81 (1976) (internal quotation marks, altera- tions, and citations omitted). Further, where the petitioner seeks 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 with- held or unreasonably delayed”), the Veterans Court must also consider the factors articulated in Telecomms. Rsch. & Action Ctr. v. FCC (TRAC), 750 F.2d 70 (D.C. Cir. 1984); see Martin v. O’Rourke, 891 F.3d 1338, 1349 (Fed. Cir. 2018) (holding that TRAC factors provide the appro- priate framework for analyzing mandamus petitions based on alleged unreasonable delay by the VA). 6 We review

6 The TRAC factors are: (1) the 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 ex- pects the agency to proceed in the enabling stat- ute, 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 wel- fare 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 im- propriety lurking behind agency lassitude” in Case: 20-2112 Document: 16 Page: 8 Filed: 01/11/2021

denial of a petition for a writ of mandamus for abuse of dis- cretion. See Hargrove v. Shinseki, 629 F.3d 1377, 1378 (Fed. Cir. 2011) (reviewing the Veterans Court’s denial of writ of mandamus for abuse of discretion). II. The Veterans Court Did Not Abuse its Discretion or Commit Legal Error in Denying the Petition The Veterans Court “conclude[d] that [Ms. Kramer] ha[d] not demonstrated that she lack[ed] adequate alterna- tive means to attain the relief she desire[d],” and that “[f]rom the information before the [Veterans] Court, it ap- pear[ed] that [Ms. Kramer]’s remedy in this case [wa]s to pursue her appeal before the Board.” Kramer, 2020 WL 1238376, at *2. The Veterans Court further explained that “[a] petition for extraordinary relief cannot be used as a substitute for the administrative process.” Id. Ms. Kramer raises two arguments. First, Ms. Kramer contends that the Veterans Court “erred in concluding that [Ms. Kramer] had ‘adequate alternative means’ to attain relief.” Appellant’s Br. 13 (capitalization normalized). Second, Ms. Kramer ar- gues that the Veterans Court erred by “relying exclusively on Cheney” and “not conducting any analysis of the TRAC factors.” Id. (emphasis omitted). The Veterans Court did not abuse its discretion or com- mit legal error in denying the Petition. The Veterans Court correctly denied Ms. Kramer’s petition because Ms. Kra- mer was unable to meet all the requirements for a writ of mandamus. Specifically, Ms. Kramer failed to satisfy the first requirement of Cheney, i.e., that she have no other ad- equate means to attain the desired relief, namely, distribu- tion of the proceeds of the NSLI policy in keeping with the

order to hold that agency action is unreasonably delayed. Martin, 891 F.3d at 1344–45 (quoting TRAC, 750 F.2d at 80). Case: 20-2112 Document: 16 Page: 9 Filed: 01/11/2021

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Settlement Agreement. See Cheney, 542 U.S. at 380–81. In January 2020, after the Board remanded the matter to the VA, the VA, through a reasoned decision, denied Ms. Kramer’s request to disburse the proceeds of the NSLI pol- icy in accordance with the Settlement Agreement. S.A. 15. Thereafter, in February 2020, Ms. Kramer appealed the VA’s decision to the Board, S.A. 17, which appears to be pending before the Board, see Kramer, 2020 WL 1238376, at *1 (stating that “the case will soon be returned to the Board for adjudication”). Ms. Kramer’s February 2020 ap- peal is her adequate alternative means to attain relief, and thus, Ms. Kramer is unable to satisfy Cheney’s first re- quirement, that she has no other adequate means besides a writ of mandamus to obtain the relief she desires. 7 Ac- cordingly, the Veterans Court correctly determined that Ms. Kramer did not satisfy the first requirement of Cheney. Ms. Kramer’s counterarguments are unpersuasive. First, Ms. Kramer argues that pursuant to Martin, the Vet- erans Court abused its discretion and committed reversible error by not applying the TRAC factors to determine whether the VA has unreasonably delayed in its process. Appellant’s Br. 12–13 (“[T]h[is] [c]ourt directed the [Veter- ans Court] to conduct a ‘searching inquiry,’ meaning a de- tailed and systematic judicious examination, of each of the six TRAC factors.” (citing Martin, 891 F.3d at 1348)). Spe- cifically, Ms. Kramer, relying on Mote v. Wilkie, 976 F.3d 1337 (Fed. Cir. 2020), argues that the Veterans Court “must first analyze the six TRAC factors and then, ‘as in- formed’ by such analysis, consider the three Cheney

7 Alternatively, if it is the case that the VA has al- ready disbursed the proceeds of the NSLI policy to the des- ignated beneficiaries, Ms. Kramer might file suit against Mr. Reiss’s biological children to enforce the Settlement Agreement. Therefore, Ms. Kramer may have yet another adequate means to attain the desired relief. Case: 20-2112 Document: 16 Page: 10 Filed: 01/11/2021

conditions,” and that “by not conducting any analysis of the TRAC factors,” the Veterans Court committed legal error. Appellant’s Br. 13 (emphasis omitted) (citing Mote, 976 F.3d at 1343). Ms. Kramer is incorrect. “In Martin, [we] adopted the TRAC standard as the ap- propriate standard for the Veterans Court to use in evalu- ating mandamus petitions alleging unreasonable delay by the VA.” Mote, 976 F.3d at 1343 (citing Martin, 891 F.3d at 1348). Accordingly, “before dismissing or otherwise denying mandamus petitions alleging unreasonable agency delay,” the Veterans Court should consider the TRAC factors. Id. at 1344. We also “acknowledged that ‘all three [Cheney] requirements must [still] be demonstrated for mandamus to issue,’” id. at 1344 (quoting Martin, 891 F.3d at 1343 n.5), and that TRAC did not supplant the en- tire mandamus analysis, id. However, as we explained in Mote, we have not “resolve[d] specifically where and how TRAC fits in” with the Cheney analysis, nor do we need to resolve such a question today. Id. at 1344 n.6; see Martin, 891 F.3d at 1343 n.5 (remanding “for the Veterans Court to consider the [Cheney] mandamus requirements as in- formed by the TRAC analysis”). Here, it is unnecessary for us to reach the application of the TRAC factors. Although Ms. Kramer alleges unrea- sonable delay in the VA’s process, Appellant’s Br. 2, Ms. Kramer’s requested relief is neither a reasoned deci- sion nor further development of her claim, see S.A. 5 (“Pe- titioner seeks a [w]rit of [m]andamus from this [c]ourt compelling Respondent to comply with the Settlement Agreement and to pay forthwith the insurance proceeds in accordance therewith.”); see also TRAC, 750 F.2d at 76 (ex- plaining that “claims of unreasonable delay” occur where “an agency . . . fails to resolve disputes” giving the appel- late court interlocutory jurisdiction to consider the claim). Instead, she seeks substantive relief—an order reversing the VA’s decision and compelling the VA to pay her one- half of the NSLI policy. S.A. 5; see Martin, 891 F.3d at 1344 Case: 20-2112 Document: 16 Page: 11 Filed: 01/11/2021

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(explaining that the TRAC factors are relevant when a pe- titioner’s requested relief is adjudication). A writ of man- damus may not be used to compel an outcome-specific order. See Bankers Life & Casualty Co. v. 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.”); McChesky v. McDonald, 635 F. App’x 882, 884–85 (Fed. Cir. 2015) (per curiam), abrogated on other grounds by Martin, 891 F.3d at 1344 (“In general, ‘[a] writ of manda- mus may be used to compel an inferior tribunal to act on a matter within its jurisdiction, but not to control its discre- tion while acting, nor reverse its decisions when made.’” (quoting Ex parte Burtis, 103 U.S. 238, 238 (1880))). Be- cause a writ of mandamus cannot be used to compel Ms. Kramer’s desired relief, the Veterans Court did not commit error by not applying the TRAC factors. Second, Ms. Kramer argues that by “refus[ing] to issue [a] writ of mandamus[,]” the Veterans Court “implicitly re- jected” her “interpretation/application of 38 U.S.C. § 1918(b)” and “constitutional due process claim.” Appel- lant’s Br. 1; see 38 U.S.C. § 1918(b) (providing for assign- ment of NSLI benefits). Although framed as questions concerning statutory interpretation and constitutionality, Ms. Kramer’s appeal involves neither the interpretation of a statute or regulation nor a constitutional issue. A plain reading of the Veterans Court’s decision shows that it made no determination concerning Ms. Kramer’s interpretation or application of § 1918(b). See generally Kramer, 2020 WL 1238376, at *1–2. Instead, the Veterans Court applied the AWA to the facts of Ms. Kramer’s case and, as a result, denied her petition because she had an adequate alterna- tive means to obtain her desired relief. Id. at *2. To the extent that Ms. Kramer raises arguments concerning the merits of her underlying claim, it is outside the scope of our review. When a veteran or beneficiary petitions for a writ Case: 20-2112 Document: 16 Page: 12 Filed: 01/11/2021

of mandamus, “[w]e may not review the factual merits of the [underlying] claim”; instead, “we may determine whether the petitioner has satisfied the legal standard for issuing the writ.” Beasley, 709 F.3d at 1158; see TRAC, 750 F.2d at 79 (“[W]e must be circumspect in exercising juris- diction over interlocutory petitions[.]”). In particular, “we do not interfere with the [Veterans Court]’s role as the final appellate arbiter of the facts underlying a veteran’s claim or the application of veterans’ benefits law to the particular facts of a veteran’s case.” Beasley, 709 F.3d at 1158; see also 38 U.S.C. § 7292(d)(2) (providing that we lack jurisdic- tion to “review . . . a challenge to a law or regulation as ap- plied to the facts of a particular case”). Moreover, “[a]lthough we have jurisdiction to consider constitutional questions, [Ms. Kramer] must do more than state that improper application of law to fact in the Veter- ans Court implicitly violates the constitution.” Wright v. Wilkie, No. 2020-1982, 2020 WL 7332570, at *2 (Fed. Cir. Dec. 14, 2020) (per curiam); see Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999) (holding that an appellant’s “characterization of [a] question as constitutional in nature does not confer upon us jurisdiction that we otherwise lack”). Here, Ms. Kramer has presented no arguments for us to evaluate beyond the bare assertions of constitutional wrongdoing. See Helfer, 174 F.3d at 1335 (“[W]hen [a peti- tioner] contends that the [Veterans Court] violated his con- stitutional rights by ignoring mandatory authority that compelled a [different] finding . . . he is really arguing the merits of his [substantive] claim, not raising a separate constitutional contention.” (internal quotation marks omit- ted)); Randolph v. McDonald, 576 F. App’x 973, 975 (Fed. Cir. 2014) (“Without an explanation providing an adequate basis for [an appellant]’s claims, they are constitutional claims in name only and thus outside of our jurisdiction.” (citation omitted)). Consequently, because the Veterans Court’s decision did not make any determination regarding Ms. Kramer’s interpretation or application of § 1918(b) or Case: 20-2112 Document: 16 Page: 13 Filed: 01/11/2021

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constitutional due process claim, we have no jurisdiction to consider these arguments. Therefore, the Veterans Court did not abuse its discretion or commit legal error by deny- ing Ms. Kramer’s Petition. CONCLUSION We have considered Ms. Kramer’s remaining argu- ments and find them unpersuasive. For the above reasons, we affirm the Judgment of the U.S. Court of Appeals for Veterans Claims and dismiss those parts of Ms. Kramer’s appeal over which we lack jurisdiction. AFFIRMED-IN-PART AND DISMISSED-IN-PART COSTS No costs.