Case: 23-2200 Document: 24 Page: 1 Filed: 03/12/2024
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit ______________________
RODNEY KEITH WRIGHT, Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________
2023-2200 ______________________
Appeal from the United States Court of Appeals for Veterans Claims in No. 23-196, Judge Coral Wong Pietsch. ______________________
Decided: March 12, 2024 ______________________
RODNEY WRIGHT, Brooklyn, NY, pro se.
NATALEE A. ALLENBAUGH, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, for respondent-appellee. Also repre- sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., PATRICIA M. MCCARTHY; BRIAN D. GRIFFIN, Office of Gen- eral Counsel, United States Department of Veterans Af- fairs, Washington, DC. ______________________ Case: 23-2200 Document: 24 Page: 2 Filed: 03/12/2024
Before MOORE, Chief Judge, CLEVENGER and CHEN, Circuit Judges. PER CURIAM. Mr. Rodney Keith Wright appeals an order of the United States Court of Appeals for Veterans Claims (Vet- erans Court) denying in part and dismissing in part Mr. Wright’s petition for extraordinary relief. Wright v. McDonough, No. 23-0196, 2023 WL 4175143, at *11 (Vet. App. June 26, 2023) (Order). We affirm the Veterans Court’s order denying the petition and dismiss the parts of Mr. Wright’s appeal over which we do not have jurisdiction. BACKGROUND Mr. Wright served in the United States Army from June 1990 to October 1990 and in the United States Air Force from August 2001 to October 2001. Appx. at 15–16. 1 On January 11, 2023, Mr. Wright filed with the Veter- ans Court a petition for a writ of mandamus. Order, 2023 WL 4175143, at *1. As it pertains to this appeal, the peti- tion principally argued that the Department of Veterans Affairs (VA) committed clear and unmistakable error (CUE) in determining his eligibility for Special Monthly Compensation (SMC) benefits and alleged that the VA un- reasonably delayed acting on an alleged April 2019 CUE motion. Id. at *1, *6. The Veterans Court found that issuing a writ of man- damus was not appropriate, dismissing in part and deny- ing in part the petition. Id. at *11. It dismissed the matter of whether Mr. Wright was entitled to SMC benefits be- cause he failed to exhaust his administrative remedies, id. at *6–7, and it denied Mr. Wright’s request to compel VA
1 “Appx.” refers to the appendix filed concurrently with Respondent’s brief. Case: 23-2200 Document: 24 Page: 3 Filed: 03/12/2024
WRIGHT v. MCDONOUGH 3
action on his alleged April 2019 CUE motion because he failed to show unreasonable delay under the factors artic- ulated in Telecommunications Research and Action Center v. Federal Communications Commission, 750 F.2d 70 (D.C. Cir. 1984) (TRAC), id. at *9–11. Mr. Wright appeals the Veterans Court’s decision. He “is solely appealing the [Veterans Court’s] opinion regard- ing the [CUE] related to his [SMC] benefits as a matter of law and the Appellee’s unreasonable delay in processing [his] CUE claim.” Appellant’s Br. at 1. DISCUSSION Our jurisdiction to review decisions of the Veterans Court is limited by statute. See 38 U.S.C. § 7292. We may review “the validity of a decision of the Court on a rule of law or of any statute or regulation . . . or any interpretation thereof . . . that was relied on by the Court in making the decision.” 38 U.S.C. § 7292(a). We have “jurisdiction to re- view the [Veterans Court’s] decision whether to grant a mandamus petition that raises a non-frivolous legal ques- tion.” Beasley v. Shinseki, 709 F.3d 1154, 1158 (Fed. Cir. 2013). Although we “may not review the factual merits of the veteran’s claim,” “we may determine whether the peti- tioner has satisfied the legal standard for issuing the writ.” Id. We review the Veterans Court’s denial of a petition for a writ of mandamus for abuse of discretion. See Lamb v. Principi, 284 F.3d 1378, 1384 (Fed. Cir. 2002); Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 426 U.S. 394, 403 (1976). To obtain mandamus, the petitioner must show (1) that there are no adequate alternative legal channels through which the petitioner may obtain the requested relief, (2) that he has a clear and indisputable legal right to that relief, and (3) that the grant of mandamus relief is appro- priate under the circumstances. See Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380–81 (2004); Hargrove v. Shinseki, 629 F.3d 1377, 1378 (Fed. Cir. 2011). Case: 23-2200 Document: 24 Page: 4 Filed: 03/12/2024
For the SMC-benefits claim, the Veterans Court found the writ to be inappropriate because “Mr. Wright has not shown that he lacks alternative means to pursue relief.” Order, 2023 WL 4175143, at *2; see also id. at *7. The proper course of action, in the Veterans Court’s view, would be for Mr. Wright to appeal through the Regional Office as a “request for a writ is not a substitute for the claims and appeals process.” Id. at *6–7. Because Mr. Wright did not exhaust his administrative remedies, the Veterans Court did not abuse its discretion in dismissing the petition for a writ of mandamus. See Hargrove, 629 F.3d at 1378. Nor did the Veterans Court abuse its discretion in denying the petition based on its finding that Mr. Wright had not shown unreasonable delay on his alleged April 2019 CUE motion. When analyzing petitions based on al- leged unreasonable delay by the VA, the Veterans Court is guided by the six TRAC factors: (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 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 expedit- ing delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the na- ture and extent of the interests prejudiced by delay; and Case: 23-2200 Document: 24 Page: 5 Filed: 03/12/2024
WRIGHT v. MCDONOUGH 5
(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, 1348 (Fed. Cir. 2018) (quoting TRAC, 750 F.2d at 79–80). Here, the Veterans Court concluded that Mr. Wright failed to show unreasonable delay under the TRAC factors because his only pending CUE motion was filed in January 2023. Order, 2023 WL 4175143, at *10. Mr. Wright argues that the TRAC factors favor him. See Appellant’s Br. 22–29.
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Case: 23-2200 Document: 24 Page: 1 Filed: 03/12/2024
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit ______________________
RODNEY KEITH WRIGHT, Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________
2023-2200 ______________________
Appeal from the United States Court of Appeals for Veterans Claims in No. 23-196, Judge Coral Wong Pietsch. ______________________
Decided: March 12, 2024 ______________________
RODNEY WRIGHT, Brooklyn, NY, pro se.
NATALEE A. ALLENBAUGH, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, for respondent-appellee. Also repre- sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., PATRICIA M. MCCARTHY; BRIAN D. GRIFFIN, Office of Gen- eral Counsel, United States Department of Veterans Af- fairs, Washington, DC. ______________________ Case: 23-2200 Document: 24 Page: 2 Filed: 03/12/2024
Before MOORE, Chief Judge, CLEVENGER and CHEN, Circuit Judges. PER CURIAM. Mr. Rodney Keith Wright appeals an order of the United States Court of Appeals for Veterans Claims (Vet- erans Court) denying in part and dismissing in part Mr. Wright’s petition for extraordinary relief. Wright v. McDonough, No. 23-0196, 2023 WL 4175143, at *11 (Vet. App. June 26, 2023) (Order). We affirm the Veterans Court’s order denying the petition and dismiss the parts of Mr. Wright’s appeal over which we do not have jurisdiction. BACKGROUND Mr. Wright served in the United States Army from June 1990 to October 1990 and in the United States Air Force from August 2001 to October 2001. Appx. at 15–16. 1 On January 11, 2023, Mr. Wright filed with the Veter- ans Court a petition for a writ of mandamus. Order, 2023 WL 4175143, at *1. As it pertains to this appeal, the peti- tion principally argued that the Department of Veterans Affairs (VA) committed clear and unmistakable error (CUE) in determining his eligibility for Special Monthly Compensation (SMC) benefits and alleged that the VA un- reasonably delayed acting on an alleged April 2019 CUE motion. Id. at *1, *6. The Veterans Court found that issuing a writ of man- damus was not appropriate, dismissing in part and deny- ing in part the petition. Id. at *11. It dismissed the matter of whether Mr. Wright was entitled to SMC benefits be- cause he failed to exhaust his administrative remedies, id. at *6–7, and it denied Mr. Wright’s request to compel VA
1 “Appx.” refers to the appendix filed concurrently with Respondent’s brief. Case: 23-2200 Document: 24 Page: 3 Filed: 03/12/2024
WRIGHT v. MCDONOUGH 3
action on his alleged April 2019 CUE motion because he failed to show unreasonable delay under the factors artic- ulated in Telecommunications Research and Action Center v. Federal Communications Commission, 750 F.2d 70 (D.C. Cir. 1984) (TRAC), id. at *9–11. Mr. Wright appeals the Veterans Court’s decision. He “is solely appealing the [Veterans Court’s] opinion regard- ing the [CUE] related to his [SMC] benefits as a matter of law and the Appellee’s unreasonable delay in processing [his] CUE claim.” Appellant’s Br. at 1. DISCUSSION Our jurisdiction to review decisions of the Veterans Court is limited by statute. See 38 U.S.C. § 7292. We may review “the validity of a decision of the Court on a rule of law or of any statute or regulation . . . or any interpretation thereof . . . that was relied on by the Court in making the decision.” 38 U.S.C. § 7292(a). We have “jurisdiction to re- view the [Veterans Court’s] decision whether to grant a mandamus petition that raises a non-frivolous legal ques- tion.” Beasley v. Shinseki, 709 F.3d 1154, 1158 (Fed. Cir. 2013). Although we “may not review the factual merits of the veteran’s claim,” “we may determine whether the peti- tioner has satisfied the legal standard for issuing the writ.” Id. We review the Veterans Court’s denial of a petition for a writ of mandamus for abuse of discretion. See Lamb v. Principi, 284 F.3d 1378, 1384 (Fed. Cir. 2002); Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 426 U.S. 394, 403 (1976). To obtain mandamus, the petitioner must show (1) that there are no adequate alternative legal channels through which the petitioner may obtain the requested relief, (2) that he has a clear and indisputable legal right to that relief, and (3) that the grant of mandamus relief is appro- priate under the circumstances. See Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380–81 (2004); Hargrove v. Shinseki, 629 F.3d 1377, 1378 (Fed. Cir. 2011). Case: 23-2200 Document: 24 Page: 4 Filed: 03/12/2024
For the SMC-benefits claim, the Veterans Court found the writ to be inappropriate because “Mr. Wright has not shown that he lacks alternative means to pursue relief.” Order, 2023 WL 4175143, at *2; see also id. at *7. The proper course of action, in the Veterans Court’s view, would be for Mr. Wright to appeal through the Regional Office as a “request for a writ is not a substitute for the claims and appeals process.” Id. at *6–7. Because Mr. Wright did not exhaust his administrative remedies, the Veterans Court did not abuse its discretion in dismissing the petition for a writ of mandamus. See Hargrove, 629 F.3d at 1378. Nor did the Veterans Court abuse its discretion in denying the petition based on its finding that Mr. Wright had not shown unreasonable delay on his alleged April 2019 CUE motion. When analyzing petitions based on al- leged unreasonable delay by the VA, the Veterans Court is guided by the six TRAC factors: (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 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 expedit- ing delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the na- ture and extent of the interests prejudiced by delay; and Case: 23-2200 Document: 24 Page: 5 Filed: 03/12/2024
WRIGHT v. MCDONOUGH 5
(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, 1348 (Fed. Cir. 2018) (quoting TRAC, 750 F.2d at 79–80). Here, the Veterans Court concluded that Mr. Wright failed to show unreasonable delay under the TRAC factors because his only pending CUE motion was filed in January 2023. Order, 2023 WL 4175143, at *10. Mr. Wright argues that the TRAC factors favor him. See Appellant’s Br. 22–29. The gist of his argument is that even though he did not file a CUE motion until January 2023, he called one of the VA’s call centers as early as April 2019 and thus alerted the VA of a CUE by that date. So according to Mr. Wright, April 2019 is the relevant starting point, and a five-year delay is unreasonable. The Veterans Court, however, found no record of a pending CUE claim prior to January 2023 and explained that VA regulations dictate how Mr. Wright should have proceeded in order to adjudicate a CUE motion that he be- lieved to be pending. Order, 2023 WL 4175143, at *6–7. Mr. Wright provides no legal authority for his argument that calling the VA amounts to the filing of a CUE motion. The Veterans Court therefore acted within its discretion in finding that January 2023 was the relevant date from which to measure the reasonableness of any delay and that there was not an unreasonable delay. Mr. Wright also raises various arguments character- ized as constitutional. However, an “appellant’s ‘character- ization of [a] question as constitutional in nature does not confer upon us jurisdiction that we otherwise lack.’” Flores v. Nicholson, 476 F.3d 1379, 1382 (Fed. Cir. 2007) (quoting Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999)). Mr. Wright’s allegedly constitutional arguments appear to Case: 23-2200 Document: 24 Page: 6 Filed: 03/12/2024
simply reargue the merits of his case, issues over which we do not have jurisdiction. See id. CONCLUSION We have considered Mr. Wright’s remaining argu- ments and find them unpersuasive. We affirm the Veter- ans Court’s order as to the writ of mandamus and dismiss those issues over which we lack jurisdiction. AFFIRMED-IN-PART AND DISMISSED-IN-PART COSTS No costs.