Philippeaux v. McDonough

Case: 21-1774 Document: 39 Page: 1 Filed: 09/07/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EDDY JEAN PHILIPPEAUX,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-1774
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-720, Judge Coral Wong Pietsch.
______________________
Decided: September 7, 2021
______________________
EDDY JEAN PHILIPPEAUX, Miami, FL, pro se.
BORISLAV KUSHNIR, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., ELIZABETH
MARIE HOSFORD; AMANDA BLACKMON, Y. KEN LEE, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Case: 21-1774 Document: 39 Page: 2 Filed: 09/07/2021
2 PHILIPPEAUX v. MCDONOUGH
Before NEWMAN, O’MALLEY, and TARANTO, Circuit Judges.
PER CURIAM.
Eddy Jean Philippeaux appeals from a decision of the
Court of Appeals for Veterans Claims (“Veterans Court”)
denying his petition for a writ of mandamus in Philippeaux
v. McDonough, Case No. 21-720 (Vet. App. Feb. 23, 2021).
We affirm.
I. BACKGROUND
Mr. Philippeaux served on active duty in the United
States Navy from 1972 to 1980. In 1977, while stationed
aboard the U.S.C. McCandless, Mr. Philippeaux hit his
head and suffered a minor laceration. He received two su-
tures and returned to duty. Three years later he was hon-
orably discharged from the Navy.
In 2009, Mr. Philippeaux filed a claim for disability
compensation for traumatic brain injury (“TBI”) which he
alleges he suffered when he hit his head in 1977. That
claim has a lengthy procedural history, only a portion of
which is relevant to this appeal. On March 16, 2018, the
Board of Veterans’ Appeals (“Board”) denied Mr.
Philippeaux’s claim of entitlement to service connection for
TBI and TBI residuals, including hyperthyroidism. Mr.
Philippeaux appealed that denial to the Veterans Court.
In 2019, the Veterans Court remanded Mr.
Philippeaux’s claim to the Board because the Board failed
to address evidence favorable to Mr. Philippeaux in its
analysis. Mr. Philippeaux appealed that remand order to
this court. We dismissed because the remand order was
not an appealable final decision. Philippeaux v. Wilkie, 814
F. App’x 603, 604 (Fed. Cir. 2020).
On remand, Mr. Philippeaux asked the Board to vacate
its March 16, 2018 decision because it had failed to adjudi-
cate a claim for hyperthyroidism. The Board denied his
Case: 21-1774 Document: 39 Page: 3 Filed: 09/07/2021
PHILIPPEAUX v. MCDONOUGH 3
motion, explaining that the hyperthyroidism claim was not
before it at the time of the March 16, 2018 decision.
On February 1, 2021, Mr. Philippeaux filed a petition
for a writ of mandamus in the Veterans Court. He argued
that the Board wrongly denied his motion to vacate and
that the Department of Veterans Affairs (“VA”) had unrea-
sonably delayed implementation of the Veterans Court’s
August 26, 2019 remand order.
The Veterans Court denied the petition. As to Mr.
Philippeaux’s first argument, the Veterans Court found
that mandamus was inappropriate because any challenge
to the March 16, 2018 board decision, including challenges
that the Board failed to adjudicate a hyperthyroidism
claim, could be resolved through the regular appeals pro-
cess. As to Mr. Philippeaux’s second argument, the Veter-
ans Court found that Mr. Philippeaux had “failed to show
that VA has unreasonably delayed implementing [the Vet-
erans Court’s] decision” and that any delay “was partially
due to Mr. Philippeaux appealing that matter to the Fed-
eral Circuit and not the fault of VA.” S. App. 4–5. 1
Mr. Philippeaux timely appealed.
II. DISCUSSION
This court has limited subject matter jurisdiction over
appeals from the Veterans Court. 38 U.S.C. § 7292. We
have jurisdiction to review “the validity of a decision of the
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 Court in mak-
ing the decision.” Id. at § 7292(a). We do not have juris-
diction to “review findings of fact or application of law to
1 All S. App. citations refer to the Supplemental Ap-
pendix filed by the United States in this appeal, Dkt. No.
22.
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4 PHILIPPEAUX v. MCDONOUGH
the facts, except to the extent that an appeal presents a
constitutional issue.” Cayat v. Nicholson, 429 F.3d 1331,
1333 (Fed. Cir. 2005) (citing 38 U.S.C. § 7292(d)(2)).
Within those constraints, we have jurisdiction to review
the Veterans Court’s rulings on mandamus petitions.
Lamb v. Principi, 284 F.3d 1378, 1381 (Fed. Cir. 2002). We
review a denial of mandamus for abuse of discretion. Id. at
1384.
Mr. Philippeaux devotes much of his briefs to argu-
ments concerning the merits of his underlying disability
claim. But the merits of his claim were not at issue before
the Veterans Court in the decision on appeal here and
therefore are not properly before this court. Even if the
Veterans Court had determined the merits of Mr.
Philippeaux’s claim, we would not have jurisdiction to re-
view the Veterans Court’s factual findings under 38 U.S.C.
§ 7292.
In reviewing the Veterans Court’s denial of mandamus,
we may only ask “whether the petitioner has satisfied the
legal standard for issuing the writ.” Beasley v. Shinseki,
709 F.3d 1154, 1158 (Fed. Cir. 2013). To prevail on his re-
quest for the extraordinary writ of mandamus, Mr.
Philippeaux was required to show that (1) he has a clear
and indisputable legal right to the writ, (2) he has no other
adequate avenue of obtaining relief, and (3) the writ is war-
ranted under the circumstances. See Cheney v. U.S. Dist.
Court, 542 U.S. 367, 380–81 (2004).
The Veterans Court denied Mr. Philippeaux’s request
because he did not show that he had no other adequate av-
enue of obtaining his requested relief. We find that the
Veterans Court’s finding that an adequate alternate ave-
nue of relief exists is neither legally incorrect nor an abuse
of discretion. Should Mr. Philippeaux be unsatisfied with
the Board’s determination on his claim, including any fail-
ure to address his claim of hyperthyroidism, he may appeal
the Board’s determination in the normal course. Moreover,
Case: 21-1774 Document: 39 Page: 5 Filed: 09/07/2021
PHILIPPEAUX v. MCDONOUGH 5
in its remand order, the Veterans Court instructed the
Board to “consider any such relevant evidence and argu-
ment” that Mr. Philippeaux introduces as to the remanded
matters. S. App. 12. Thus, to the extent that Mr.
Philippeaux has not previously raised his hyperthyroidism
claim, he may do so on remand. And he may appeal any
Board determination on that claim in the normal course,
rendering mandamus improper. Mandamus is an extraor-
dinary remedy that should “not be used as a substitute for
the regular appeals process.” Cheney, 542 U.S. at 380–81.
Mr. Philippeaux also requested mandamus to rectify
the Board’s allegedly unreasonable delay in processing his
claim on remand. 2 The Veterans Court found that Mr.
Philippeaux had “failed to show that VA has unreasonably
delayed implementing” the Veteran’s Court’s August 26,
2019 remand order. Indeed, the Veterans Court found that
any delay in implementing the remand order “was partially
due to Mr. Philippeaux appealing the matter to the Federal
Circuit and not the fault of VA.” S. App. 4. We find no
error in the Veterans Court’s holding. The Board must
treat Mr. Philippeaux’s claims expeditiously on remand.
See 38 U.S.C. § 7112. It does not appear that the Board
has failed to do so.
The Board had just a few months to adjudicate Mr.
Philippeaux’s claim after remand. Its failure to complete
that process within that short time frame is not unreason-
able under the circumstances of this case. The Veterans
Court issued its remand order on August 26, 2019. On Jan-
uary 10, 2020, Mr. Philippeaux filed a notice of appeal from
2 Mr. Philippeaux argues only that the Board has not
promptly considered the issue on remand. We cabin our
analysis to that narrow question. We do not address
whether the VA has unreasonably delayed the disposition
of Mr. Philippeaux’s claim at any other point since he orig-
inally filed the claim over a decade ago.
Case: 21-1774 Document: 39 Page: 6 Filed: 09/07/2021
6 PHILIPPEAUX v. MCDONOUGH
that remand decision before this court. On August 4, 2020,
we dismissed that appeal. Philippeaux, 814 F. App’x 603.
After that appeal, the Veterans Court issued its mandate
on October 6, 2020, releasing jurisdiction back to the
Board. Less than four months later, on February 1, 2021,
Mr. Philippeaux filed his petition seeking a writ of manda-
mus. Thus, it appears that the Board had slightly more
than four months (between August 26, 2019 and January
10, 2020) and a second instance of just under four months
(October 6, 2020 to February 1, 2021) in which to adjudi-
cate Mr. Philippeaux’s claim. Contrary to Mr.
Philippeaux’s argument, the Board did not have jurisdic-
tion to proceed with his claim while the case was before the
Veterans Court or this court on appeal. See Graves v. Prin-
cipi, 294 F.3d 1350, 1352 (Fed. Cir. 2002). Under these cir-
cumstances, we find no legal error or abuse of discretion in
the Veterans Court’s finding that Mr. Philippeaux “failed
to show that VA has unreasonably delaying implementing”
the remand order. S. App. 5.
III. CONCLUSION
We have considered Mr. Philippeaux’s remaining argu-
ments and conclude that they are without merit. For the
reasons discussed above, we affirm the Veterans Court.
AFFIRMED
COSTS
No costs.