Jackson v. Nicholson ( 2005 )


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  •                NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is
    not citable as precedent. It is a public record.
    United States Court of Appeals for the Federal Circuit
    05-7084
    RAYMOND JACKSON,
    Claimant-Appellant,
    v.
    R. JAMES NICHOLSON, Secretary of Veterans Affairs,
    Respondent-Appellee.
    __________________________
    DECIDED: July 11, 2005
    __________________________
    Before MAYER, RADER, and PROST, Circuit Judges.
    PER CURIAM.
    Raymond Jackson (“Jackson”) appeals the order of the United States Court of
    Appeals for Veteran’s Claims (“Veterans Court”), which dismissed-in-part and denied-in-
    part Jackson’s May 10, 2004, petition for extraordinary relief in the nature of a writ of
    mandamus. Jackson v. Principi, No. 04-763 (Vet. App. Aug. 25, 2004). We affirm.
    “Writs of mandamus are to be used only in extraordinary circumstances and
    when no meaningful alternatives are available.” In re Newman, 
    763 F.2d 407
    , 409-10
    (Fed. Cir. 1985) (citing Kerr v. United States Dist. Court, 
    426 U.S. 394
    , 402 (1976)). To
    obtain mandamus, Jackson must show: (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 v.
    Principi, 
    284 F.3d 1378
    , 1382 (Fed. Cir. 2002) (internal quotations omitted).
    Jackson sought to compel the Secretary of Veterans Affairs (“VA”) to: (1) refund
    his readjustment pay that was recouped by VA; and (2) award service connection for
    defective distance vision. The board denied Jackson’s recoupment claim on December
    11, 2000. Because he did not appeal that decision until May 10, 2004, the Veterans
    Court properly dismissed his appeal for lack of jurisdiction. Consequently, the Veterans
    Court correctly found that it also lacked jurisdiction to issue a writ of mandamus with
    respect to that claim.
    Jackson’s second contention, that the VA regional office’s (“RO’s”) delay in
    adjudicating his defective vision claim warrants mandamus, also fails. In September
    2003 the VA increased his disability rating for service-related glaucoma with defective
    vision from 50% disabling to 70% disabling. In March 2004 the board remanded his
    claim to the RO for further adjudication; two months later, Jackson petitioned the
    Veterans Court for mandamus. While frustrating, this delay is not so extraordinary that
    issuance of a writ of mandamus is warranted. See Lamb, 
    284 F.3d at 1383
     (finding that
    a fifteen-month delay in adjudicating a claim did not constitute an extraordinary delay
    warranting mandamus). Jackson’s defective vision claim is purely factual, raises no
    cognizable constitutional issue, and, therefore, is not appropriate for disposition by this
    court. See 
    38 U.S.C. § 7292
    (d)(2) (2000); Helfer v. West, 
    174 F.3d 1332
    , 1335 (Fed.
    Cir. 1999). Jackson cannot circumvent the VA’s administrative appellate process by
    requesting Veterans Court review before the VA completes its adjudication process.
    See Lamb, 
    284 F.3d at 1384
     (“[E]xtraordinary writs cannot be used as substitutes for
    appeals, even though hardship may result from delay.”) (internal quotations omitted).
    05-7084                                     2