Mathis v. McDonald ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GEIRY L. MATHIS,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-1583
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-3298, Judge Robert N. Davis.
______________________
Decided: June 13, 2016
______________________
GEIRY L. MATHIS, Home, PA, pro se.
JESSICA COLE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, Jr., MARTIN
F. HOCKEY, JR.; Y. KEN LEE, BRANDON A. JONAS, Office of
2 MATHIS v. MCDONALD
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before DYK, PLAGER, and REYNA, Circuit Judges.
PER CURIAM.
Geiry L. Mathis appeals from a decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) denying his petition for extraordinary relief in the
nature of mandamus. We affirm.
BACKGROUND
Mr. Mathis served on active duty in the U.S. Army
from June 1968 to September 1969. In 1979, Mr. Mathis
asserted entitlement to a total disability based on indi-
vidual unemployability (“TDIU”) after having received a
30 percent disability rating for non-psychotic organic
brain syndrome (“OBS”), brain trauma, and tinnitus. The
Department of Veterans Affairs (“VA”) denied his TDIU
claim. Mr. Mathis appealed, and in 1989 the Board of
Veterans’ Appeals (“Board”) also denied TDIU. Mr.
Mathis did not appeal further, and the decision became
final.
In 2013, Mr. Mathis alleged clear and unmistakable
error (“CUE”) with respect to the denial of his TDIU claim
in 1979. The Board in 2013 remanded the issue of wheth-
er the 1979 decision denying entitlement to TDIU should
be reversed or revised on the basis of CUE. While that
Board decision was still pending on remand to the VA,
Mr. Mathis appealed to the Veterans Court, which dis-
missed for lack of jurisdiction. We affirmed. Mathis v.
McDonald, 625 F. App’x 539, 542 (Fed. Cir. 2015).
Between 2013 and 2015, the VA did not act on Mr.
Mathis’s remanded TDIU claim. In July 2015, Mr.
Mathis filed a motion with the Veterans Court which the
MATHIS v. MCDONALD 3
court construed as a petition for mandamus on the basis
that the VA had failed to expeditiously process Mr.
Mathis’s TDIU claim. The Secretary of Veterans Affairs
filed a response indicating that Mr. Mathis’s TDIU claim
had been merged with a separate claim remanded by the
Veterans Court in 2015. As to that separate claim, the
Veterans Court had concluded in 2015 that the Board in a
separate decision erred by failing to consider whether Mr.
Mathis was entitled to a disability rating for headaches
separate from his tinnitus and OBS, and remanded for a
consideration of whether the error manifestly changed the
outcome of Mr. Mathis’s disability rating. The Secretary
apologized for the delay in resolving the TDIU claim and
explained that the merged claims were both formally
docketed before the Board and would be decided promptly
after the mandate issued on the Veterans’ Court’s 2015
decision and Mr. Mathis’s 90-day period to submit evi-
dence expired.
In January 2016, the Veterans Court denied Mr.
Mathis’s petition for mandamus. Geiry L. Mathis v.
Robert A. McDonald, No. 15-3298 (Vet. App. Jan. 20,
2016). The court explained that Mr. Mathis did not
demonstrate a clear and indisputable right to the writ
because his case had been placed on the Board’s docket
and he had not demonstrated that the decision to merge
the claims on remand had caused unreasonable delay
amounting to a refusal to act. The court declined to
address Mr. Mathis’s arguments on the merits of the CUE
issue, explaining that a writ is not a substitute for the
appeals process. Mr. Mathis now appeals to our court the
2016 decision of the Veterans Court denying his petition.
We have limited jurisdiction to review decisions of the
Veterans Court. We have jurisdiction to review the
Veterans Court’s denial of a writ of mandamus only in
circumstances involving a constitutional claim or the
interpretation of a regulation or statute. 38 U.S.C.
4 MATHIS v. MCDONALD
§ 7292(c); Lamb v. Principi, 284 F.3d 1378, 1381 (Fed. Cir.
2002). Because Mr. Mathis alleges constitutional due
process violations in connection with the denial of his
petition, we have jurisdiction. See Lamb, 284 F.3d at
1381. We review the Veterans Court’s denial of a petition
for a writ of mandamus for abuse of discretion. Id. at
1384; see also Hargrove v. Shinseki, 629 F.3d 1377, 1379
(Fed. Cir. 2011).
DISCUSSION
On appeal, Mr. Mathis challenges the delay associated
with his CUE motion between 2013 and 2015 and argues
that the VA impermissibly merged that motion with the
disability rating issue remanded in 2015. To be entitled
to a writ of mandamus, a petitioner must demonstrate
“(1) that he has a ‘clear and indisputable right’ to the writ
and (2) that he has no alternative way to obtain the relief
sought.” Lamb, 284 F.3d at 1382 (quoting Kerr v. U.S.
Dist. Court for N. Dist. of Cal., 426 U.S. 394, 403 (1976)).
“The remedy of mandamus is a drastic one, to be invoked
only in extraordinary situations.” Kerr, 426 U.S. at 402.
At the time the Veterans Court considered Mr.
Mathis’s petition for writ of mandamus, the Board had
already docketed but not resolved Mr. Mathis’s CUE
motion regarding the TDIU issue. While there has been a
continuing delay in deciding the TDIU claim associated
with the merger of the TDIU claim with the disability
rating claim remanded in 2015, the Board is not required
to adjudicate each claim in a separate decision, and it was
not unreasonable for the Board to merge the two related
claims here. There is no suggestion that the VA has
delayed in resolving the disability rating issue, and the
disability rating would affect the TDIU decision. We
assume that the VA will act promptly to resolve Mr.
Mathis’s claims. The Veterans Court did not abuse its
discretion in denying Mr. Mathis’s petition for manda-
MATHIS v. MCDONALD 5
mus. We have considered Mr. Mathis’s other arguments
and find them to be without merit.
AFFIRMED
COSTS
No costs.