London v. McDonough

• Court: Court of Appeals for the Federal Circuit
• Decided: March 15, 2021
• Docket: 20-1915
• Status: Unpublished

Opinion

Case: 20-1915 Document: 37 Page: 1 Filed: 03/15/2021

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

STEVEN LONDON, Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________

2020-1915 ______________________

Appeal from the United States Court of Appeals for Veterans Claims in No. 19-5784, Judge Michael P. Allen. ______________________

Decided: March 15, 2021 ______________________

STEVEN LONDON, Blagoevgrad, Bulgaria, pro se.

JIMMY MCBIRNEY, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, for respondent-appellee. Also represented by JEFFREY B. CLARK, STEVEN J. GILLINGHAM, ROBERT E. KIRSCHMAN, JR. ______________________

Before DYK, LINN, and MOORE, Circuit Judges. Case: 20-1915 Document: 37 Page: 2 Filed: 03/15/2021

PER CURIAM. Petitioner Steven L. London appeals an order of the United States Court of Appeals for Veterans Claims (“Vet- erans Court”) denying his petition for a writ of mandamus. Because the Veterans Court did not conduct the necessary analysis of Mr. London’s petition, we remand. BACKGROUND I Mr. London first filed a disability claim with the De- partment of Veterans Affairs (“VA”) on July 12, 2013. The Regional Office (“RO”) issued its rating decision on March 17, 2014, in which it variously granted, deferred, and de- nied Mr. London’s disability claims. On June 6, 2014, the RO granted some of the claims and denied other claims it had previously deferred. The Board of Veterans’ Appeals (“Board”) certified Mr. London’s appeal on February 28, 2018. Mr. London’s hearing before the Board was eventu- ally held on December 2, 2019. On January 21, 2020, the Board granted service connection for fibromyalgia and re- manded to the RO with respect to thirteen other disability claims; final decisions on these claims do not appear to have issued. II While awaiting his Board hearing, Mr. London filed a petition for mandamus with the Veterans Court on August 21, 2019, seeking “full adjudication” of his disability ap- peals within sixty days. J.A. 161. The Veterans Court de- nied his petition on December 18, 2019, finding that a writ of mandamus was not warranted because Mr. London had already had a hearing before the Board, which was working to adjudicate his claims. After Mr. London moved for re- consideration, the Veterans Court granted a panel decision to review the denial of his petition, and the panel upheld the denial. Mr. London appealed to this court. Case: 20-1915 Document: 37 Page: 3 Filed: 03/15/2021

LONDON v. MCDONOUGH 3

DISCUSSION When evaluating a mandamus petition alleging unrea- sonable agency delay, we have held that the VA must spe- cifically apply the six-factor standard articulated by the D.C. Circuit in Telecommunications Research & Action Center v. FCC (TRAC), 750 F.2d 70, 80 (D.C. Cir. 1984). Mote v. Wilkie, 976 F.3d 1337, 1343 (Fed. Cir. 2020) (citing Martin v. O’Rourke, 891 F.3d 1338, 1348 (Fed. Cir. 2018)). When the Veterans Court has failed to conduct the requi- site TRAC analysis, we will remand for it to do so. Id. at 1346–47; Martin, 891 F.3d at 1349. This is true even when the petitioner has had a hearing on their requested relief before the Board, if the mandamus petition has requested relief going beyond requiring that a hearing be conducted. See Mote, 976 F.3d at 1339–41, 1346–47 (remanding for consideration under TRAC standard, even though peti- tioner had already had a Board hearing on her claims, be- cause the Board’s hearing and remand did not constitute a “decision,” i.e., “a grant or denial of benefits”). Here, Mr. London’s petition for mandamus alleged un- reasonable delay and requested relief directed to “full ad- judication” of his pending claims. J.A. 161. That request has not been mooted by the Board’s remand. At the same time, the Veterans Court denied his petition without con- sideration or mention of the TRAC standard. The govern- ment agrees that remand is appropriate. We therefore remand for the Veterans Court to apply the TRAC stand- ard. VACATED AND REMANDED COSTS Costs to Mr. London.