Dray v. Dept. Of Veterans Affairs , 474 F. App'x 774 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
LEMUEL C. BRAY,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2012-7005
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in 11-2194, Judge Robert N. Davis.
___________________________
Decided: April 5, 2012
___________________________
LEMUEL C. BRAY, of Kumamotoken, Japan, pro se.
SHELLEY D. WEGER, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With her on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and MARTIN
F. HOCKEY, JR., Assistant Director. Of counsel on the
BRAY v. DVA 2
brief were DAVID J. BARRANS, Deputy Assistant General
Counsel, and MARTIN J. SENDEK, Attorney, Department of
Veterans Affairs, of Washington, DC.
__________________________
Before BRYSON, MAYER, and DYK, Circuit Judges.
PER CURIAM.
Lemuel C. Bray (“Bray”) appeals from a decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”), Bray v. Shinseki, No. 11-2194, 2011
WL 3510166 (Vet. App. Aug. 11, 2011). The Veterans
Court denied Bray’s petition for a writ of mandamus.
Because we conclude that the Veterans Court did not
abuse its discretion in denying the writ, we affirm.
BACKGROUND
On July 15, 2011, Bray, a veteran, filed a petition for
writ of mandamus in the Veterans Court. In his petition,
Bray sought (1) an extension of time in which to bring a
“substantive appeal” to the Board of Veterans’ Appeals
(“Board”) or to the Veterans Court; (2) an earlier effective
date for previously awarded disability benefits; (3) com-
pletion of several “research studies” relating to “organic
brain syndromes”; and (4) permission to email, rather
than mail, documents filed with the clerk. Bray, 2011 WL
3510166, at *1-2.
On August 11, 2011, the Veterans Court denied Bray’s
petition. Regarding Bray’s request for an extension of
time in which to bring his appeal, the Veterans Court
found that Bray had not exhausted his administrative
remedies and that the proper remedy was for Bray to first
file his appeal. Id. at *1. With respect to Bray’s request
for an earlier effective date for his disability benefits, the
3 BRAY v. DVA
Veterans Court found that it was “unable to review these
matters because they have not yet been timely appealed.”
Id. at *2. As to Bray’s request for research studies, the
court found that Bray had failed to show “a clear and
indisputable right” to the requested relief as necessary for
issuance of a writ of mandamus. Id. Finally, the Veter-
ans Court denied Bray’s request to file documents by
email, noting that “Rule 25 of the Court’s Rules of Prac-
tice and Procedure states that documents to be filed with
the Clerk must be filed by either mail or fax.” Id. This
appeal followed.
DISCUSSION
Our jurisdiction to review the decisions of the Veter-
ans Court is limited by statute. We may review the
decisions of the Veterans Court “on a rule of law or of any
statute or regulation,” or “any interpretation thereof”
relied upon by the Veterans Court in rendering its deci-
sion. 38 U.S.C. § 7292(a). However, with the exception of
appeals that “present[] a constitutional issue,” this court
“may not review (A) a challenge to a factual determina-
tion, or (B) a challenge to a law or regulation as applied to
the facts of a particular case.” Id. § 7292(d)(2); see also
Conway v. Principi, 353 F.3d 1369, 1372 (Fed. Cir. 2004).
Nonetheless, “[e]xcluding the review of factual issues
from our jurisdiction was intended to remove from our
consideration the factual details of veterans benefits
cases,” but “[t]here is no indication, however, that in thus
limiting our jurisdiction, Congress intended to insulate
from judicial review [the Veterans Court’s] ruling on
mandamus petitions.” Lamb v. Principi, 284 F.3d 1378,
1381-82 (Fed. Cir. 2002). We review the Veterans Court’s
denial of a writ of mandamus for abuse of discretion. See
id. at 1384.
BRAY v. DVA 4
The writ of mandamus is a “drastic and extraordinary
remedy reserved for really extraordinary causes.” Cheney
v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004)
(quoting Ex parte Fahey, 332 U.S. 258, 259-60 (1947))
(internal quotation marks omitted). A petitioner seeking
a writ of mandamus must establish that (1) he has “no
other adequate means to attain the relief he desires”; (2)
his right to issuance of the writ is “clear and indisput-
able”; and (3) “the writ is appropriate under the circum-
stances.” Id. at 380-81; see also Hargrove v. Shinseki, 629
F.3d 1377, 1378 (Fed. Cir. 2011). Bray fails to make such
a showing in this case.
On appeal, Bray appears to primarily contend that
the Veterans Court erred in denying a writ of mandamus
to compel the Secretary of Veterans Affairs (“Secretary”)
to conduct studies on the economic and social effects of
organic brain syndromes to support the promulgation of
diagnostic ratings for such disabilities. However, Bray
has not alleged any statute or regulation which entitles
him to such relief. See generally Browder v. Nicholson,
177 F. App’x 989, 991 (Fed. Cir. 2006) (“The Veterans
Court generally does not have authority to review deci-
sions made by the Secretary that are entirely discretion-
ary and not subject to review by the Board.”). Thus, Bray
fails to demonstrate that his right to issuance of the writ
is “clear and indisputable.” For that reason, we conclude
that the Veterans Court’s denial of Bray’s petition for writ
of mandamus with respect to these studies was not an
abuse of discretion. We also see no error in the Veterans
Court’s decision to reject the other grounds for mandamus
presented to the Veterans Court. To the extent that Bray
raises claims and seeks relief not presented to the Veter-
ans Court, those issues are not properly before us. Bray’s
Motion to Expedite is dismissed as moot.
5 BRAY v. DVA
COSTS
No costs.