NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VARIETA O. MARTIN MCLEAN,
Petitioner-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-1508
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-4905, Judge Michael P. Allen.
______________________
Decided: July 22, 2019
______________________
VARIETA O. MARTIN MCLEAN, Victorville, CA, pro se.
ROBERT C. BIGLER, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
JOSEPH H. HUNT, STEVEN JOHN GILLINGHAM, ROBERT
EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN, BRYAN
THOMPSON, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
______________________
2 MCLEAN v. WILKIE
Before LOURIE, O’MALLEY, and CHEN, Circuit Judges.
PER CURIAM.
Varieta O. Martin McLean appeals from a decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) dismissing McLean’s petition for ex-
traordinary relief in the form of a writ of mandamus.
McLean v. Wilkie, No. 18-4905, 2018 U.S. App. Vet. Claims
LEXIS 1511 (Vet. App. Nov. 16, 2018). Because McLean
challenges only factual findings and the application of law
to fact, we dismiss for lack of jurisdiction.
BACKGROUND
McLean is a veteran of the United States Air Force who
served on active duty at the March Air Force Base in Cali-
fornia. After her service, she applied to her Regional Office
(“RO”) seeking entitlement to service connection for vari-
ous ailments. Suppl. A. at 29–30. The RO denied her
claims, and McLean appealed to the Board of Veterans’ Ap-
peals. In June of 2017, the Board remanded McLean’s case
back to the RO with instructions to further develop the rec-
ord and readjudicate the appeal. The Board also directed
the RO to return the case to the Board for comprehensive
review of the entire record should the RO again deny any
of McLean’s claims. Suppl. A. at 49.
In July of 2018, McLean sent letters to the Board and
the Veterans Court expressing concerns regarding the de-
lay in adjudicating her remanded claims. Suppl. A. at 49;
McLean, 2018 U.S. App. Vet. Claims LEXIS 1511, at * 1.
The Veterans Court construed her letter as a petition for a
writ of mandamus, but found that the petition was noncom-
pliant because it did not “include an appendix containing
copies of any order or decision or other documents neces-
sary to understand and support the petition.” McLean,
2018 U.S. App. Vet. Claims LEXIS 1511, at *1. The Veter-
ans Court granted McLean twenty-one days to file a
MCLEAN v. WILKIE 3
compliant corrected petition. Meanwhile, the Board re-
sponded to McLean’s letter on August 2, 2018, assuring her
that it had forwarded her correspondence to the RO for di-
rect reply and that, should the RO transfer the case back
to the Board, it would adjudicate her appeal promptly.
Suppl. A. at 49.
On September 20, 2018, the RO sent a letter to McLean
notifying her that it had complied with the Board’s instruc-
tion to further develop the record and enclosing a Supple-
mental Statement of the Case. Suppl. A. at 15. The RO
again denied McLean’s claims and stated that the case
would be returned to the Board within thirty days of the
RO’s decision. Suppl. A. at 15, 29–30.
On October 11, 2018, the Veterans Court received an-
other letter from McLean. Although the letter was again
noncompliant, the Veterans Court “construe[d it] as a
timely substitute petition for extraordinary relief.”
McLean, 2018 U.S. App. Vet. Claims LEXIS 1511, at *1. It
noted that McLean failed to attach necessary supporting
documents, 1 but concluded that there was “enough infor-
mation” from McLean’s letter to discuss the merits of her
request.
Id. It also accepted McLean’s allegations as true
and concluded that it did not need a response from the Sec-
retary to resolve the matter.
Id. at *3.
In a decision dated November 16, 2018, the Veterans
Court denied McLean’s petition. Although the Veterans
Court acknowledged its authority to issue extraordinary
writs pursuant to the All Writs Act, 28 U.S.C. § 1651(a), it
1 For example, McLean failed to provide the Veter-
ans Court with the above-referenced Supplemental State-
ment of the Case. See Suppl. A. at 12–13. On July 1, 2019,
we requested that the government provide this document
in connection with this appeal. The government so supple-
mented the appendix on July 8, 2019.
4 MCLEAN v. WILKIE
explained that it is “a ‘drastic’ remedy that the Court will
invoke only in extraordinary circumstances.”
Id. at *2
(quoting Kerr v. U.S. Dist. Court,
426 U.S. 394, 402 (1976)).
The Veterans Court further explained that three condi-
tions must be met before it could issue the writ: (1) “the
petitioner must show a lack of adequate alternative means
of obtaining the relief sought;” (2) “the petitioner must
show a clear and indisputable right to the writ;” and (3) the
court must be convinced that the writ is appropriate under
the circumstances.
Id. (citing Cheney v. U.S. Dist. Court,
542 U.S. 367, 380–81 (2004)). The Veterans Court then ap-
plied the factors from Telecommunications Research & Ac-
tion Center v. FCC (“TRAC”),
750 F.2d 70 (D.C. Cir. 1984),
which this court has adopted “as the appropriate standard
for the Veterans Court to use in evaluating mandamus pe-
titions based on alleged unreasonable delay.” Martin v.
O’Rourke,
891 F.3d 1338, 1348 (Fed. Cir. 2018).
Applying the TRAC factors to the facts in McLean’s
case, the Veterans Court concluded that the delay was not
“so egregious that it warrants a writ of mandamus.” 2018
U.S. App. Vet. Claims LEXIS 1511, at *5. The court
acknowledged that McLean’s “claim was remanded . . . and
that, on some level the . . . delay is unreasonable.”
Id. at *4. But it balanced this finding against the fact that
the Supplemental Statement of the Case sent in 2018 ap-
peared to end that delay and the fact that McLean could
still appeal that decision.
Id. Accordingly, the Veterans
Court dismissed the petition. McLean appeals.
DISCUSSION
Our jurisdiction to review Veterans Court decisions is
limited by statute. Pursuant to 38 U.S.C. § 7292(a), we
may 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 with respect to
MCLEAN v. WILKIE 5
constitutional issues, we “may not review (A) a challenge
to a factual determination, or (B) a challenge to a law or
regulation as applied to the facts of a particular case.”
§ 7292(d)(2).
This limited jurisdiction extends to our review of the
Veterans Court’s dismissal of a petition for a writ of man-
damus. See 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). Specifically, we have jurisdiction “to
review the [Veterans Court’s] decision whether to grant a
mandamus petition that raises a non-frivolous legal ques-
tion,” but cannot “review the factual merits of the veteran’s
claim.”
Beasley, 709 F.3d at 1158. Nor can we interfere
with the Veterans Court’s “role as the final appellate arbi-
ter of the facts underlying a veteran’s claim or the applica-
tion of veterans’ benefits law to the particular facts of a
veteran’s case.”
Id.
Here, McLean’s appeal presents only issues challeng-
ing factual determinations and the application of law to
fact. In her informal brief, McLean states that the Veter-
ans Court “knowingly made amoral, untrue, [and] unsub-
stantiated statements.” Appellant’s Informal Br. at 1. This
is a challenge to the Veterans Court’s factual determina-
tions. McLean also continues to argue on appeal that the
delay in resolving her case is unreasonable. This is a chal-
lenge of the Veterans Court’s application of the factors out-
lined in TRAC to the facts in this case. 2 And, although
2 We note that certain facts recited in McLean’s pe-
tition, which the Veterans Court accepted as true when
denying mandamus, were inaccurate. For instance,
McLean’s petition stated that the Board remanded
McLean’s case in 2015 to the RO, where it was pending for
three years before McLean received the Supplemental
Statement of the Case in 2018. Suppl. A. at 12; 2018 U.S.
App. Vet. Claims LEXIS 1511, at *5. But, as is clear from
6 MCLEAN v. WILKIE
McLean states that military records were “interfered with
and removed . . . which is an amoral, illegal and unconsti-
tutional offense,” Appellant’s Informal Br. at 5, that state-
ment alone is insufficient to raise a constitutional
challenge, especially when no such challenge was raised
before the Veterans Court. Accordingly, we lack jurisdic-
tion over McLean’s appeal.
CONCLUSION
Because McLean’s appeal presents only challenges to
factual determinations and the application of law to fact,
we dismiss for lack of jurisdiction.
DISMISSED
COSTS
No costs.
the Supplemental Statement of the Case, the Board re-
manded McLean’s appeal in June of 2017. Suppl. A. at 19.
The duration of any purported delay between the remand
and the Supplemental Statement of the Case was thus only
a little over a year. This further weakens McLean’s claim
that the delay was unreasonable.
