Case: 21-2156 Document: 32 Page: 1 Filed: 02/09/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT E. RANDOLPH,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-2156
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-3333, Judge Coral Wong Pi-
etsch.
______________________
Decided: February 9, 2022
______________________
ROBERT E. RANDOLPH, Baton Rouge, LA, pro se.
STEPHEN J. SMITH, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.
MCCARTHY; AMANDA BLACKMON, Y. KEN LEE, Office of Gen-
eral Counsel, United States Department of Veterans Af-
fairs, Washington, DC.
Case: 21-2156 Document: 32 Page: 2 Filed: 02/09/2022
2 RANDOLPH v. MCDONOUGH
______________________
Before LOURIE, BRYSON, and CUNNINGHAM, Circuit
Judges.
PER CURIAM.
Robert E. Randolph appeals from the decision of the
United States Court of Appeals for Veterans Claims (“the
Veterans Court”) denying his petition for a writ of manda-
mus. Randolph v. Wilkie, No. 20-3333,
2020 WL 4280115
(Vet. App. July 27, 2020) (“Decision”); Randolph v. Wilkie,
No. 20-3333,
2021 WL 41133 (Vet. App. Jan. 6, 2021);
SAppx 2–7. 1 For the reasons detailed below, we dismiss
Randolph’s appeal as moot.
BACKGROUND
Randolph served on active duty in the U.S. Marine
Corps from March 1981 to December 1984. SAppx 9.
In January 1985, Randolph filed a claim for disability
compensation, seeking service connection for reactive air-
way disease. SAppx 18. In June 1985, the Department of
Veterans Affairs (“VA”) regional office (“RO”) granted him
service connection for reactive airway disease and hyper-
tension.
Id.
In March 1987, Randolph submitted a “Statement in
Support of Claim” explaining that he had a sinus condition
and requesting an evaluation to determine whether it was
ratable.
Id. In June 1987, the RO denied Randolph service
connection for his sinus condition. SAppx 19.
In March 2006, Randolph requested a higher disability
rating for his service-connected reactive airway disease
and hypertension.
Id. Randolph also submitted a
1 “SAppx” refers to the supplemental appendix of
materials accompanying the government’s response brief.
Case: 21-2156 Document: 32 Page: 3 Filed: 02/09/2022
RANDOLPH v. MCDONOUGH 3
statement indicating that he believed he already had a ser-
vice connection rating for sinusitis.
Id. In September 2006,
the RO responded, explaining that it had denied him ser-
vice connection for sinusitis in June 1987, that the decision
was final, and that Randolph must submit new and mate-
rial evidence to reopen the claim. Id.; SAppx 26.
In February 2008, Randolph sought to reopen his claim
for service connection for sinusitis. SAppx 26. In February
2009, the RO denied his request, finding that he had not
submitted new and material evidence to justify reopening
his claim.
Id.
In June 2009, Randolph filed a notice of disagreement,
requesting revision of the June 1987 rating decision based
on clear and unmistakable error (“CUE”).
Id. That same
month, Randolph submitted a letter stating that he did not
remember receiving a copy of the June 1987 rating deci-
sion.
Id.
In June 2012, the RO issued a Statement of the Case.
First, it found that Randolph had submitted new and ma-
terial evidence to reopen the sinusitis claim but denied the
claim on the merits. SAppx 19–20; SAppx 26–27. Second,
it determined there was no CUE in the June 1987 rating
decision.
Id.
Randolph appealed to the Board of Veterans’ Appeals
(“the Board”). In December 2014, the Board affirmed. It
determined that there was no CUE in the RO’s June 1987
rating decision, which denied Randolph service connection
for sinusitis. SAppx 27.
Randolph appealed to the Veterans Court. According
to Randolph, the Board erred in holding (1) that VA had
properly notified him of its June 1987 rating decision and
(2) that the June 1987 rating decision was final. SAppx 27.
Rather than respond to Randolph’s arguments, the Secre-
tary conceded that the Board’s findings were unsupported.
Case: 21-2156 Document: 32 Page: 4 Filed: 02/09/2022
4 RANDOLPH v. MCDONOUGH
Accordingly, the Secretary recommended that the court re-
mand the decision for further explanation. SAppx 27–28.
The Veterans Court agreed with the Secretary and in
August 2016, it vacated and remanded the Board’s deci-
sion. The court instructed that, should the Board find the
June 1987 rating decision to be nonfinal, then “the Board
must adjudicate it.” SAppx 28–29.
In December 2017, on remand, the Board again deter-
mined that the June 1987 rating decision was final. Ac-
cordingly, it denied Randolph’s motion for revision.
SAppx 20. The Board acknowledged Randolph’s assertion
that he never received notification of the June 1987 rating
decision.
Id. However, the Board pointed out that the pre-
sumption of regularity applied, which holds that, in the ab-
sence of clear evidence to the contrary, it presumes that
public officers have properly discharged their official du-
ties. It further explained that Randolph had not rebutted
that presumption. Randolph appealed to the Veterans
Court.
On February 22, 2019, the Veterans Court reversed the
Board’s determination that the June 1987 decision was fi-
nal. SAppx 20–21. According to the court, the Board erred
in holding that Randolph had not rebutted the presump-
tion of regularity.
Id. It remanded the case to the Board
for readjudication. SAppx 21.
On May 9, 2020, while the matter was pending before
the Board, Randolph petitioned the Veterans Court for a
writ of mandamus. Decision,
2020 WL 4280115, at *1. He
specifically requested that the court compel the Secretary
“to comply with [the Veterans Court’s] order to expedite the
processing of [his] appeal.”
Id.
Two months after Randolph’s petition, on July 1, 2020,
the Board decided Randolph’s claim.
Id. It determined
that, because the June 1987 decision was nonfinal, Ran-
dolph’s CUE request was moot, and his sinusitis claim was
Case: 21-2156 Document: 32 Page: 5 Filed: 02/09/2022
RANDOLPH v. MCDONOUGH 5
still pending and unadjudicated. Id.; see also SAppx 30–
32. In view of those determinations, the Board remanded
Randolph’s pending claim to the RO for “consideration of
any action deemed appropriate.” Decision,
2020 WL
4280115, at *1
After the Board’s decision, on July 27, 2020, the Veter-
ans Court denied Randolph’s petition for a writ of manda-
mus. Decision,
2020 WL 4280115, at *2. First, the court
explained that Randolph was not entitled to a writ of man-
damus because he had “adequate alternative means to seek
relief.”
Id. (citing Cheney v. U.S. Dist. Court,
542 U.S. 367,
380–81 (2004)). Specifically, according to the court, Ran-
dolph could appeal the July 1, 2020 Board decision regard-
ing his CUE claim. Id. at *1. Alternatively, he could seek
relief from any RO decision on his sinusitis claim. Id. The
court further emphasized that, should the RO fail to re-
spond expeditiously to the Board’s referral, then Randolph
could file a new petition. Id. at *2.
Second, the Veterans Court determined that any al-
leged delay did not warrant issuance of a writ. Id. at *1.
The court explained that, although additional litigation
was required to correct the two Board decisions, the time
taken to process Randolph’s claim did not “offend[] the rule
of reason” or otherwise require “extraordinary interven-
tion.” Id. at *2 n.3 (citing Telecomms. Rsch & Action Ctr.
v. FCC,
750 F.2d 70, 80 (D.C. Cir. 1984)). On January 6,
2021, a three-judge panel adopted the single-judge order as
the decision of the court. Randolph v. Wilkie, No. 20-3333,
2021 WL 41133, at *1 (Vet. App. Jan. 6, 2021); SAppx 2–3.
Randolph appealed to this court. As relevant here, af-
ter Randolph filed his opening brief, on September 29,
2021, the RO issued a decision concerning Randolph’s si-
nusitis claim. SAppx 33–39. It granted service connection
at a zero percent rating with an effective date of March 17,
1987. SAppx 33–34. Despite the RO’s decision, Randolph
continued to pursue his appeal to this court.
Case: 21-2156 Document: 32 Page: 6 Filed: 02/09/2022
6 RANDOLPH v. MCDONOUGH
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited. We may review the validity of a decision
with respect to a rule of law or interpretation of a statute
or regulation that was relied upon by the Veterans Court
in making its decision.
38 U.S.C. § 7292(a). However, ex-
cept with respect to constitutional issues, we may not re-
view challenges to factual determinations or challenges to
the application of a law or regulation to the facts of a case.
Id. § 7292(d)(2).
For appeals involving a denial of a petition for a writ of
mandamus, we have jurisdiction to review a decision of the
Veterans Court “that raises a non-frivolous legal question.”
Beasley v. Shinseki,
709 F.3d 1154, 1158 (Fed. Cir. 2013);
see also Lamb v. Principi,
284 F.3d 1378, 1381–82 (Fed.
Cir. 2002). Although we possess jurisdiction to “determine
whether the [veteran] has satisfied the legal standard for
issuing the writ,” we may “not review the factual merits of
the veteran’s claim.” Beasley, 709 F.3d at 1158. We review
the denial of a petition for a writ of mandamus for an abuse
of discretion. Lamb,
284 F.3d at 1382–1384.
Randolph asserts that the Veterans Court abused its
discretion in denying his petition for a writ of mandamus.
He requests that we require the Veterans Court to expedi-
tiously “enforce its own remand orders.” Appellant’s Infor-
mal Br. 3. Specifically, Randolph requests that we instruct
the Veterans Court to require VA to immediately adjudi-
cate his claim.
The government responds that Randolph’s appeal is
moot. According to the government, Randolph’s request
was fulfilled when the RO adjudicated his sinusitis claim
on September 21, 2021. SAppx 33.
We agree with the government. “If an event occurs
while a case is pending on appeal that makes it impossible
for the court to grant any effectual relief [whatsoever] to a
Case: 21-2156 Document: 32 Page: 7 Filed: 02/09/2022
RANDOLPH v. MCDONOUGH 7
prevailing party, the appeal must be dismissed as moot.”
Nasatka v. Delta Sci. Corp.,
58 F.3d 1578, 1580 (Fed. Cir.
1995) (internal quotations omitted). Such is the case here.
While Randolph’s appeal was pending, VA issued a rating
decision granting him service connection for sinusitis.
SAppx 34. In other words, VA “compli[ed] with [the Veter-
ans] Court’s order to expedite the processing of [Ran-
dolph’s] appeal.” Decision,
2020 WL 4280115, at *1.
Accordingly, Randolph’s challenge is moot. 2
CONCLUSION
We have considered Randolph’s remaining arguments
and find that they do not affect our conclusion. For the
foregoing reasons, we dismiss his appeal as moot.
DISMISSED
COSTS
No costs.
2 Our decision that this appeal is moot should not be
construed as an endorsement of the VA’s speed or lack
thereof in adjudicating Randolph’s claim.
