Bauer v. McDonald ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FREDERICK W. BAUER,
Claimant-Appellant,
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7064
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-0132, Judge Alan G. Lance, Sr.
______________________
Decided: January 13, 2015
______________________
FREDERICK W. BAUER, of Texarkana, Texas, pro se.
RETA E. BEZAK, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee. On
the brief were STUART F. DELERY, Assistant Attorney
General, ROBERT E. KIRSCHMAN, JR., Director, SCOTT D.
AUSTIN, Assistant Director, and BENJAMIN MARK MOSS,
Trial Attorney. Of counsel on the brief were Y. KEN LEE,
Deputy Assistant General Counsel, and LARA K.
2 BAUER v. MCDONALD
EILHARDT, Attorney, United States Department of Veter-
ans Affairs, of Washington, DC.
______________________
Before WALLACH, TARANTO, and CHEN, Circuit Judges.
PER CURIAM.
Appellant Frederick W. Bauer appeals the order of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) denying his petition for a writ of
mandamus. See Bauer v. Shinseki, No. 14-0132 (Vet. App.
Feb. 21, 2014) (Appellee’s App. (“VA App.”) 1–2) (order
denying petition) (the “Order”). Because the Veterans
Court properly denied Mr. Bauer’s petition for manda-
mus, this court affirms.
BACKGROUND
According to Mr. Bauer, he is a veteran of the Vi-
etnam War who served in the United States Army from
1969 to 1972. On October 29, 2010, a United States
Department of Veterans Affairs (“VA”) regional office
received Mr. Bauer’s claim for pension benefits, which it
denied on December 28, 2010. The claim was apparently
denied because Mr. Bauer had been incarcerated for more
than sixty days for a felony or misdemeanor, and was
therefore ineligible for pension benefits. See 38 C.F.R.
§ 3.666 (2010). According to Mr. Bauer, on February 8,
2011, he filed a notice of disagreement with the regional
office’s decision to which he received an acknowledgment
of receipt on March 10, 2011.
On December 31, 2012, Mr. Bauer contacted the
Board regarding the status of his claim. In response, on
January 23, 2013, the Board wrote to Mr. Bauer explain-
BAUER v. MCDONALD 3
ing “no appeal . . . ha[d] been docketed at the Board.” 1 VA
App. 47. Therefore, the Board forwarded Mr. Bauer’s
correspondence to a regional office and directed that office
to reply to Mr. Bauer directly.
On July 29, 2013, in response to Mr. Bauer’s Notice of
Disagreement, the regional office issued its Statement of
the Case regarding the denial of the pension claim.
Subsequently, Mr. Bauer submitted additional statements
to the regional office on August 29, 2013, September 6,
2013, and December 17, 2013, along with copies of various
magazine and newspaper articles. On January 16, 2014,
while the additional information submitted by Mr. Bauer
was under review at the regional office, Mr. Bauer filed a
petition for a writ of mandamus, requesting the Veterans
Court to order the VA to adjudicate and grant his pension
claim.
While the Petition was pending at the Veterans
Court, the regional office completed its review of Mr.
Bauer’s additional evidence and issued a Supplemental
Statement of the Case on January 21, 2014. In the Sup-
plemental Statement, the regional office reached the same
conclusion as it had in the original Statement of the Case,
finding “[e]ntitlement to nonservice-connected pension
benefits is denied because pension is not payable as long
as you are incarcerated.” VA App. 15 (“Veterans that are
incarcerated for more than 60 days for a felony or misde-
meanor are not eligible to receive pension benefits based
on 38 [C.F.R. §] 3.666.”).
1 This is apparently because the regional office was
still working on the Statement of the Case in response to
Mr. Bauer’s Notice of Disagreement; therefore, an appeal
had not yet been certified to the Board. See VA App. 15;
Appellee’s Br. 19.
4 BAUER v. MCDONALD
Upon review of Mr. Bauer’s Petition, the Veterans
Court ordered the VA to submit information about the
status of Mr. Bauer’s claim. Order at 1; VA App. 4. In
response, the VA reported “on January 21, 2014, the Waco
[regional office] issued a Supplemental Statement of the
Case . . . as to Petitioner’s pension claim.” Order at 1
(internal quotation marks and citation omitted). Thereaf-
ter, the Veterans Court denied Mr. Bauer’s Petition on
February 21, 2014. 2 In doing so, the court noted the “VA
is currently in the process of adjudicating [Mr. Bauer’s]
claim, . . . and [he] has not demonstrated either that he
lacks adequate alternative means to obtain the desired
relief or an arbitrary refusal by the [VA] to act.” Id. at 2
(citations omitted). Mr. Bauer appeals.
DISCUSSION
I. Jurisdiction & Standard of Review
Pursuant to 38 U.S.C. § 7292(a) (2012), this court has
jurisdiction to review “the validity of a decision of the
[Veterans] Court on a rule of law or of any statute or
regulation . . . or any interpretation thereof (other than a
determination as to a factual matter) that was relied on
by the [Veterans] Court in making the decision.” Except
to the extent that a constitutional issue is presented, this
court may not review “a challenge to a factual determina-
tion,” or “a challenge to a law or regulation as applied to
the facts of a particular case.” Id. § 7292(d)(2). The
Veterans Court’s legal determinations are reviewed de
novo. Cushman v. Shinseki, 576 F.3d 1290, 1296 (Fed.
Cir. 2009).
2 The Veterans Court also noted that Mr. Bauer
sought additional remedies, “including his unconditional
release from federal custody and compensatory and
punitive damages,” which were outside the court’s pro-
spective jurisdiction. Order at 2.
BAUER v. MCDONALD 5
Thus, with regard to Mr. Bauer’s arguments that the
Veterans Court “ignor[ed] the facts of the case,” Appel-
lant’s Br. 1F, or misapplied the facts giving rise to his
claim for mandamus relief, id. at 1C (“This case is about
facts, not about law, obviously so.”), such arguments are
beyond this court’s jurisdiction. See 38 U.S.C.
§ 7292(d)(2). This court does have jurisdiction, however,
over the limited question of whether the Veterans Court
committed legal error in interpreting the law of manda-
mus. See Lamb v. Principi, 284 F.3d 1378, 1381–82 (Fed.
Cir. 2002) (“Excluding the review of factual issues from
our jurisdiction was intended to remove from our consid-
eration the factual details of veterans benefits cases . . . .
Congress intended the Veterans Court to be the final
arbiter of those factual issues. There is no indication,
however, that in thus limiting our jurisdiction, Congress
intended to insulate from judicial review that court’s
ruling on mandamus petitions.”).
II. The Veterans Court Properly Interpreted the Law of
Mandamus
“The remedy of mandamus is a drastic one, to be in-
voked only in extraordinary situations.” Kerr v. U.S. Dist.
Ct. for N. Dist. of Cal., 426 U.S. 394, 402 (1976). A peti-
tioner seeking mandamus relief must therefore prove a
“clear and indisputable” right to the writ, and the absence
of adequate alternative means to obtain the requested
relief. Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 381
(2004) (internal quotation marks and citation omitted).
Moreover, “the issuing court, in the exercise of its discre-
tion, must be satisfied that the writ is appropriate under
the circumstances.” Id. Mr. Bauer appears to argue a
writ should have issued because of the delays in the VA’s
processing of his claim. See Appellant’s Br. 1J–1K (stat-
ing his “claim for VA benefits has been in the works for
4+years, which is typical of federal courts stalling tactics
regarding pending litigation obviously, off the record, to
6 BAUER v. MCDONALD
allow avoidance of accountability to their own rule of law
or the administration of their own work product”).
Here, however, the Veterans Court properly stated
the law of mandamus, outlining three conditions, all of
which must be met for the writ to issue:
(1) The petitioner must demonstrate that he lacks
adequate alternative means to obtain the desired
relief, thus ensuring that the writ is not used as a
substitute for the appeals process; (2) the peti-
tioner must demonstrate a clear and indisputable
right to the writ; and (3) the Court must be con-
vinced, given the circumstances, that the issuance
of the writ is warranted.
Order at 1–2 (citing Cheney, 542 U.S. at 380–81). It then
examined Mr. Bauer’s Petition in light of these criteria
and found that because his claim was still before the VA,
which had issued the Supplemental Statement of the
Case “as recently as January 2014,” Mr. Bauer failed to
demonstrate he lacked “adequate alternative means to
obtain the desired relief” as required by the first element.
Id. at 2. It also found Mr. Bauer had not shown “an
arbitrary refusal by the [VA] to act.” Id. As the VA
points out, “Mr. Bauer’s arguments that the facts of his
case entitle him to nonservice-connected pension benefits
amount to a collateral attack on an ongoing agency adju-
dication.” Appellee’s Br. 15. The Veterans Court both
articulated and actually applied the correct law of man-
damus to deny the Petition in these circumstances.
CONCLUSION
For the foregoing reasons, the Veterans Court’s deci-
sion is
AFFIRMED
COSTS
No costs.