Bryan v. McDonald , 615 F. App'x 681 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PATRICK FRANK BRYAN,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7010
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-1088, Chief Judge Bruce E.
Kasold.
______________________
Decided: June 19, 2015
______________________
JARED LEVINSON, The Veterans Law Office of Jared
Levinson, P.C., Easton, MD, argued for claimant-
appellant.
AMANDA TANTUM, Commercial Litigation Branch, Civ-
il Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also
represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., ALLISON KIDD-MILLER; Y. KEN LEE,
2 BRYAN v. MCDONALD
MEGHAN ALPHONSO, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
______________________
Before NEWMAN, LOURIE, and CHEN, Circuit Judges.
CHEN, Circuit Judge
Patrick F. Bryan petitions for review of the Court of
Appeals for Veterans Claims (Veterans Court) order
denying his petition for writ of mandamus. Bryan v.
Gibson, No. 14-1088, 2014 WL 3747034 (Vet. App. July
30, 2014) (Order). In his underlying claim, Mr. Bryan
seeks a service connection for loss of maxilla under 38
C.F.R. § 4.150, Diagnostic Code (DC) 9914, dating back to
1978. Mr. Bryan also seeks increased disability benefits
for his traumatic brain injury (TBI), post-traumatic stress
disorder (PTSD), and scarring. Because we agree that
Mr. Bryan failed to demonstrate that he lacks alternative
means to obtain relief, we affirm in part. And because
Mr. Bryan’s remaining arguments fall outside our juris-
diction, we dismiss in part.
I. BACKGROUND
Mr. Bryan served on active duty in the United States
Marine Corps from April 1973 to March 1977. Service
treatment records indicate that Mr. Bryan suffered vari-
ous injuries arising out of an automobile accident in
August 1973, and from being struck in the head by a
hatch door while aboard the USS Guam (LPH-9) in March
1975.
In a January 9, 1979 rating decision, he was granted
a service connection for residual lacerations of the lower
lip and scalp, residual fracture on the fourth and fifth
metacarpals of the right hand, and inguinal hernia.
Supplemental Appendix (S.A.) 113. Each condition was
rated as noncompensable with an effective date of No-
vember 29, 1978. Id. Around that time, he was also
BRYAN v. MCDONALD 3
granted service connection for dental trauma for treat-
ment purposes only. S.A. 114.
Mr. Bryan subsequently filed numerous claims and
appeals claiming service connections for multiple inju-
ries. 1 The Board of Veterans Appeals (Board) issued a
decision on February 22, 2013 addressing, inter alia, the
service connection claims at issue here. In particular, the
decision found that Mr. Bryan had properly raised the
issue of whether his loss of maxilla warranted a service
connection. But because the Regional Office (RO) had not
yet adjudicated that claim, the Board remanded with
instructions that the RO take appropriate action. S.A. 32.
The Board also examined Mr. Bryan’s TBI, PTSD, and
scarring claims, but found they should be remanded to the
RO for further development as well. S.A. 54–56.
On August 5, 2013, the RO issued a statement of the
case denying entitlement to an initial evaluation in excess
of ten percent for both the TBI and PTSD. S.A. 80. The
next day, on August 6, 2013, the RO issued a supple-
mental statement of the case denying a compensable
evaluation for scarring. S.A. 106. The decision also
addressed Mr. Bryan’s loss of maxilla claim. The RO
noted that a June 4, 2013 VA examination had found no
loss of supporting bone, maxilla, or mandible. S.A. 109
(“[A]ll maxillary bone is clinically and radiologically
present.”). The RO thus denied service connection for loss
of maxilla. Id. (“Loss of teeth without loss of mandible or
maxilla is not considered a disability for compensation
purposes.”).
1 The history of Mr. Bryan’s various claims and ap-
peals after the 1979 decision is unclear from the record.
It appears that Mr. Bryan resumed seeking benefits, at
the latest, around 2002. See S.A. 33 (referencing Febru-
ary 2002 rating decision).
4 BRYAN v. MCDONALD
On April 10, 2014, Mr. Bryan filed a petition with the
Veterans Court for extraordinary relief in the form of a
writ of mandamus. Mr. Bryan petitioned the Veterans
Court to find a service connection for loss of maxilla under
Diagnostic Code 9914 beginning in 1978. He also claimed
that the RO erred in assessing his claims for benefits
relating to his TBI, PTSD, and scarring. In addition to
arguing the merits of these claims, Mr. Bryan contended
that mandamus was necessary to remedy the RO’s “un-
conscionable” delay in addressing his claims. S.A. 18.
The Veterans Court denied Mr. Bryan’s petition in a
July 30, 2014 order, noting that mandamus is warranted
when, for example, the Secretary refuses—or his actions
amount to a refusal—to process a claim, and the petition-
er has no alternative means of relief. Veterans Court
Order at *1 (citing Constanza v. West, 12 Vet. App. 133,
134 (1999) and Cheney v. U.S. Dist. Court, 542 U.S. 367,
380–81 (2004)). The Veterans Court determined that
mandamus was not warranted with respect to Mr. Bry-
an’s various claims because he had not demonstrated that
he will be unable to use the normal appeals process to
obtain the relief sought. Id. at *1–2.
Mr. Bryan now appeals to this Court.
II. DISCUSSION
A
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Guillory v. Shinseki, 603 F.3d
981, 986 (Fed. Cir. 2010). We have jurisdiction over “all
relevant questions of law, including interpreting constitu-
tional and statutory provisions.” 38 U.S.C. § 7292(d)(1).
We lack jurisdiction over any “challenge to a factual
determination” or “challenge to a law or regulation as
applied to the facts of a particular case” absent a constitu-
tional issue. 38 U.S.C. § 7292(d)(2). We set aside a
Veterans Court decision only if it is “arbitrary, capricious,
BRYAN v. MCDONALD 5
an abuse of discretion, or otherwise not in accordance
with law. . . .” 38 U.S.C. § 7292(d)(1)(A).
To obtain mandamus, the petitioner 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 appropriate under the circumstances.
See Cheney, 542 U.S. at 380–81; Hargrove v. Shinseki, 629
F.3d 1377, 1378 (Fed. Cir. 2011). Moreover, the issuance
of a writ of mandamus is “in large part a matter of discre-
tion with the court to which the petition is addressed.”
Kerr v. U. S. Dist. Court for N. Dist. of Calif., 426 U.S.
394, 403 (1976) (citations omitted).
B
As a preliminary matter, the government contends
that we must dismiss this appeal for lack of jurisdiction.
We disagree in part. The government’s position on ap-
peals of mandamus denials has already been rejected by
this court’s decision in Lamb v. Principi, 284 F.3d 1378,
1381 (Fed. Cir. 2002). In response to a similar jurisdic-
tional argument advanced by the government in this case,
this court determined that although Congress intended
the Veterans Court to be the final arbiter of all factual
issues, “[t]here is no indication, however, that in thus
limiting our jurisdiction, Congress intended to insulate
from judicial review that court's ruling on mandamus
petitions.” Id. at 1382. This court has thus consistently
exercised jurisdiction over mandamus petitions that raise
legal questions within our jurisdiction. See, e.g., Beasley
v. Shinseki, 709 F.3d 1154, 1158 (Fed. Cir. 2013); Lamb,
284 F.3d at 1381–82; Cox v. West, 149 F.3d 1360, 1365–66
(Fed. Cir. 1998). In doing so, “[w]e may not review the
factual merits of the veteran’s claim, but we may deter-
mine whether the petitioner has satisfied the legal stand-
ard for issuing the writ.” Beasley, 709 F.3d at 1158.
6 BRYAN v. MCDONALD
C
Mr. Bryan has not shown that he was entitled to a
writ of mandamus as a matter of law. Importantly, Mr.
Bryan fails to show that he lacks alternative means to
obtain the relief he seeks. Although he acknowledges
there is a mechanism for challenging the RO decision, i.e.,
appeal to the Board, he contends that it would be “futile”
to seek relief through that process. Reply Br. at 13.
Underlying this contention is Mr. Bryan’s belief that the
RO has failed to address his claims in a timely manner.
The record indicates that the RO has recently taken
action on Mr. Bryan’s claims. On February 20, 2015, after
the appeal to this court was filed, the RO issued a new
rating decision addressing Mr. Bryan’s claims. In particu-
lar, the RO found that Mr. Bryan was entitled to a 10%
service connection for injuries related to his loss of maxil-
la claim, an increase from 10% to 30% for his PTSD, and
an increase from 10% to 30% for his scarring. S.A. 117–
18. The RO also found that the claim for increased evalu-
ation due to TBI should be deferred for further examina-
tion. S.A. 124–25.
While Mr. Bryan may be frustrated with the speed at
which his case is being adjudicated, he has not shown a
refusal to act by the Secretary—effective or otherwise.
We note that a different outcome would not be warranted
even if the February 20, 2015 rating decision had not been
issued. As the Veterans Court correctly noted, “‘the
extraordinary writs cannot be used as substitutes for
appeals, even though hardship may result from delay and
perhaps unnecessary trial.’” Lamb, 284 F.3d at 1384(quoting Bankers Life & Cas. Co. v. Holland, 346 U.S.
379, 383 (1953)).
D
We have examined Mr. Bryan’s remaining arguments
and find them beyond the scope of our jurisdiction. For
BRYAN v. MCDONALD 7
example, Mr. Bryan raises various arguments that are
clearly factual in nature, e.g., whether the RO correctly
assessed his various claims, and thus unreviewable by
this court. See, e.g., Cayat v. Nicholson, 429 F.3d 1331,
1333 (Fed. Cir. 2005) (“We may not review findings of fact
or application of law to the facts[.]”).
Mr. Bryan also makes various arguments that do not
involve a claim for veteran benefits. For example, he
raises claims sounding in tort, e.g., the “gross misconduct”
of the RO and Board has caused him irreparable emotion-
al harm. The Veterans Court did not have jurisdiction to
grant Mr. Bryan’s petition as to those claims and neither
does this court. See 38 U.S.C. § 7104 (describing the
Board’s jurisdiction).
Accordingly, we hold that the Veterans Court did not
abuse its discretion or otherwise commit legal error in
denying Mr. Bryan’s petition for writ of mandamus. We
also hold that Mr. Bryan’s remaining claims are outside of
this court’s jurisdiction and are dismissed.
CONCLUSION
We affirm the order of the Veterans Court denying the
petition for mandamus and dismiss in part Mr. Bryan’s
appeal.
AFFIRMED IN PART and DISMISSED IN PART
COSTS
No costs.