Buholtz v. Snyder ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KENNETH L. BUHOLTZ,
Claimant-Appellant
v.
ROBERT D. SNYDER, ACTING SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-2485
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-853, Judge Robert N. Davis.
______________________
Decided: February 13, 2017
______________________
KENNETH L. BUHOLTZ, Petersburg, VA, pro se.
MATTHEW PAUL ROCHE, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., SCOTT D. AUSTIN; Y. KEN LEE, AMANDA
BLACKMON, Office of General Counsel, United States
Department of Veterans Affairs, Washington, DC.
______________________
2 BUHOLTZ v. MCDONALD
Before MOORE, TARANTO, and CHEN, Circuit Judges.
PER CURIAM.
Kenneth Buholtz filed various claims with the De-
partment of Veterans Affairs, including multiple claims
for benefits for service-connected disabilities and a claim
for apportionment of his benefits to his dependent son.
He eventually filed a petition for a writ of mandamus
with the Court of Appeals for Veterans Claims (Veterans
Court), arguing that the processing of his claims had been
delayed for an unreasonable amount of time and that the
Department had made multiple errors in the determina-
tions it had already reached. The Veterans Court denied
the petition. We affirm, because Mr. Buholtz did not meet
essential requirements for the extraordinary relief of
mandamus.
I
In March 2016, Mr. Buholtz filed a document with the
Veterans Court, which that court construed as a petition
for a writ of mandamus under the All Writs Act, 28 U.S.C.
§ 1651. According to Mr. Buholtz, the Board of Veterans’
Appeals unreasonably delayed processing his claims and
reached incorrect results on the claims it had already
processed. The claims at issue are claims for benefits
based on various allegedly compensable conditions, in-
cluding post-traumatic stress disorder (PTSD), and a
claim to apportion some benefits to Mr. Buholtz’s minor
son. Mr. Buholtz later filed an amended mandamus
petition that contained, in addition to his original argu-
ments, a request for “back apportionment reimburse-
ment.” Appellant’s App. 138.
On June 2, 2016, the Secretary of Veterans Affairs re-
sponded by explaining that the relevant regional office of
the Department had issued a November 2014 rating
decision adjudicating seventeen disability claims filed by
BUHOLTZ v. MCDONALD 3
Mr. Buholtz in November 2013. Appellant’s App. 32. The
Secretary further explained that Mr. Buholtz’s claim
based on PTSD was pending on appeal to the Board and
that the “appeals team” would handle his claim for a total
disability rating based on individual unemployability,
which was tied to his PTSD claim. Id. at 33, 116. The
Secretary also noted that the regional office was pro-
cessing the apportionment claim and had requested
additional information from Mr. Buholtz’s former spouse
as recently as May 27, 2016. Id. at 33. Lastly, the Secre-
tary informed the Veterans Court that the regional office
had written a draft decision regarding the additional
claims related to Mr. Buholtz’s right knee, right wrist,
and gastroesophageal reflux disease—a decision that was
released on June 6, 2016. See Appellee’s App. 4–5. The
regional office’s June 6 decision explained that Mr.
Buholtz could file a notice of disagreement to initiate an
appeal. Id. at 6. Mr. Buholtz filed such a notice on Sep-
tember 10, 2016. Id. at 16.
The Veterans Court denied the mandamus petition,
explaining that Mr. Buholtz “ha[d] not evidenced a clear
and indisputable right to the writ.” Buholtz v. McDonald,
No. 16-0853, 2016 WL 3467420, at *2 (Vet. App. June 24,
2016). The Veterans Court reasoned that the Secretary’s
response demonstrated that the regional office “ha[d]
adjudicated [Mr. Buholtz’s] various claims for disability
benefits, and that [the Department was] processing his
apportionment claim, PTSD appeal, and claim for” a total
disability rating based on individual unemployability. Id.
Accordingly, the Veterans Court held, Mr. Buholtz had
“not demonstrated that the Secretary has refused to act
on his claim.” Id. (citing Constanza v. West, 12 Vet. App.
133, 134 (1999) (explaining that a petitioner seeking a
writ of mandamus based on delay must demonstrate an
extraordinary delay equivalent “to an arbitrary refusal to
act”)). Mr. Buholtz appeals.
4 BUHOLTZ v. MCDONALD
II
Our review of appeals from the Veterans Court is lim-
ited. We have 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.” 38 U.S.C. § 7292(a). We may review “a chal-
lenge to a factual determination” or “a challenge to a law
or regulation as applied to the facts of a particular case”
to the extent, but only to the extent, that the veteran
“presents a constitutional issue.” Id. § 7292(d)(2); see
Edwards v. Shinseki, 582 F.3d 1351, 1354 (Fed. Cir.
2009); In re Bailey, 182 F.3d 860, 868–70 (Fed. Cir. 1999).
Under those provisions, we may review the Veterans
Court’s denial of a writ of mandamus for legal error and,
as to constitutional issues, both factual determinations
and the application of the mandamus standards to the
facts. See, e.g., Beasley v. Shinseki, 709 F.3d 1154, 1157–
58 (Fed. Cir. 2013); Lamb v. Principi, 284 F.3d 1378,
1381–82 (Fed. Cir. 2002).
Mr. Buholtz argues that the Veterans Court erred in
failing to compel the Department to comply with 38
C.F.R. § 3.451, which concerns the apportionment of
benefits between a veteran and his dependents, and 38
C.F.R. § 3.665(e), which allows “[a]ll or part of the com-
pensation not paid to an incarcerated veteran” to be
apportioned “to the veteran’s spouse, child or children and
dependent parents on the basis of individual need.”
Appellant’s Br. 1, 3–7. He also argues that the Depart-
ment’s 2014 disability assessment contained an inappro-
priate “combined” rating in violation of the Department’s
regulations. Appellant’s Br. 1, 14–16. And he argues that
the Department failed to expedite his PTSD claim, in
violation of 10 U.S.C. § 1553 and his due process rights.
Appellant’s Br. 1, 8–10. The Secretary here states that
Mr. Buholtz did not raise many of those contentions to the
BUHOLTZ v. MCDONALD 5
Veterans Court. But he did raise at least his due process
contention and, more generally, complained about delay
in the Department’s processing of his claims.
The Veterans Court did not decide whether the De-
partment correctly applied its regulations and the rele-
vant statutes or violated Mr. Buholtz’s due process rights.
Rather, it concluded that his petition did not meet the
demanding standards for mandamus relief. The Veterans
Court invoked the correct legal standards. Buholtz, 2016
WL 3467420, at *2. “The remedy of mandamus is a
drastic one, to be invoked only in extraordinary situa-
tions.” Kerr v. U.S. Dist. Ct. for the N. Dist. of Cal., 426
U.S. 394, 402 (1976). “To obtain that remedy, the peti-
tioner must show (1) that he has a clear legal right to
relief; (2) that there are no adequate alternative legal
channels through which the petitioner may obtain that
relief; and (3) that the grant of mandamus relief is appro-
priate under the circumstances.” Beasley, 709 F.3d at
1158. Those requirements apply to mandamus sought
from the Veterans Court. See id.; Youngman v. Peake, 22
Vet. App. 152, 154 (2008).
We see no reversible error in the Veterans Court’s ap-
plication of this legal standard in denying mandamus
relief in this case: Mr. Buholtz has not shown either the
inadequacy of alternative legal channels for obtaining
relief or a clear legal right to relief. As the Veterans
Court explained, the Secretary’s unrefuted evidence
shows that, at the time of denial of mandamus, all of Mr.
Buholtz’s claims had either been processed or were active-
ly being processed. Buholtz, 2016 WL 3467420, at *2.
Mr. Buholtz has provided no evidence that he is unable to
directly appeal these determinations or that his challeng-
es, including any constitutional challenges to the De-
partment’s processes, cannot or will not be considered on
direct appeal. Mandamus does not substitute for ade-
quate appeal processes. See Bankers Life & Cas. Co. v.
Holland, 346 U.S. 379, 383 (1953). As to the amount of
6 BUHOLTZ v. MCDONALD
time the Department process is taking, we need only say
that no precedent cited to us, or of which we are aware,
establishes that the delays at issue here clearly violate
Mr. Buholtz’s due process rights, as would be required for
him to be entitled to relief under the applicable manda-
mus standards. See, e.g., Johnson v. Shinseki, 549 F.
App’x 994, 997 (Fed. Cir. 2013) (rejecting delay-based due
process contention); Woznick v. Shinseki, 492 F. App’x
100, 102 (Fed. Cir. 2012) (similar).
Lastly, Mr. Buholtz may be understood to argue a
statutory point—that 10 U.S.C. § 1553 gives a clear legal
right to expedited treatment of a PTSD-based claim for
veterans’ benefits. That contention is incorrect. The
statute addresses only the review of a “discharge or
dismissal” of “any former member of the armed forces.”
10 U.S.C. § 1553(a), (d). Mr. Buholtz’s claim is not seek-
ing any such review.
III
For the foregoing reasons, the Veterans Court’s deci-
sion is affirmed.
No costs.
AFFIRMED