Proceviat v. McDonough

Case: 21-1810 Document: 18 Page: 1 Filed: 09/16/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICHARD A. PROCEVIAT,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2021-1810
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-5432, Judge Michael P. Allen.
______________________
Decided: September 16, 2021
______________________
RICHARD A. PROCEVIAT, Elma, Manitoba, Canada, pro
se.
BRENDAN DAVID JORDAN, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, CLAUDIA BURKE, MARTIN F.
HOCKEY, JR.; Y. KEN LEE, BRYAN THOMPSON, Office of Gen-
eral Counsel, United States Department of Veterans Af-
fairs, Washington, DC.
Case: 21-1810 Document: 18 Page: 2 Filed: 09/16/2021
2 PROCEVIAT v. MCDONOUGH
______________________
Before MOORE, Chief Judge, PROST and STOLL, Circuit
Judges.
PER CURIAM.
Richard A. Proceviat appeals an order of the United
States Court of Appeals for Veterans Claims dismissing in
part and denying in part Mr. Proceviat’s petition for a writ
of mandamus. S.A. 1–3. 1 For the reasons below, we vacate
and remand.
I
On March 20, 2018, the Department of Veterans Af-
fairs (VA) examined Mr. Proceviat in connection with his
claim for service-connected disability compensation. Ulti-
mately, the medical examiner opined that Mr. Proceviat’s
rheumatoid arthritis is not service connected. Although
the medical opinion is not in the record, the VA claims the
examiner relied on medical literature indicating there is no
known cause for rheumatoid arthritis. S.A. 57. Based on
the medical examiner’s opinion, the VA denied Mr. Proce-
viat’s claim.
In February 2019, Mr. Proceviat filed a notice of disa-
greement. He questioned the VA examiner’s qualifications
and, therefore, requested copies of “the VA examiner[’]s
curriculum vitae [CV], [the] examination notes and the spe-
cific medical literature that was relied upon.” S.A. 20. He
also requested an independent medical opinion. S.A. 22.
For more than a year, the VA attempted to determine
the specific appeals process that Mr. Proceviat selected,
i.e., whether the appeal would proceed under the legacy
system or the Veterans Appeals Improvement and
1 “S.A.” refers to the supplemental appendix filed
with the government’s brief.
Case: 21-1810 Document: 18 Page: 3 Filed: 09/16/2021
PROCEVIAT v. MCDONOUGH 3
Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat.
1105. Throughout that process, Mr. Proceviat repeated his
request for documents and an independent medical opin-
ion. It was not until March 11, 2020, however, that the VA
regional office even requested the examiner’s CV. And it
did not, at that time, request any other documentation.
That “request was misrouted and a follow-up request that
was to be done two weeks after the March 11 request was
not scheduled due to an administrative oversight.” S.A. 9
(citing S.A. 15–17). Thus, Mr. Proceviat was not provided
with the requested documents.
On July 27, 2020, Mr. Proceviat petitioned the Veter-
ans Court for a writ of mandamus. S.A. 4–5. He requested
an order compelling the VA to provide him with the exam-
iner’s CV, the examination notes, and “the specific medical
literature that was relied upon.” S.A. 4. He also requested
the Veterans Court compel an independent medical opin-
ion. Id. That is, Mr. Proceviat sought the relief he had re-
quested (in nearly identical terms) about a year-and-a-half
earlier.
Interpreting the petition as requesting only the exam-
iner’s CV, the Veterans Court ordered the VA to respond.
S.A. 76. A week later, the VA re-requested the examiner’s
CV and then mailed it to Mr. Proceviat. S.A. 72–75. Be-
cause it had provided Mr. Proceviat that CV, the VA ar-
gued Mr. Proceviat’s mandamus petition was moot.
S.A. 9–12. The Veterans Court agreed and dismissed
Mr. Proceviat’s petition. S.A. 77.
Mr. Proceviat sought reconsideration, arguing that his
initial request quite clearly was for more than just the ex-
aminer’s CV. S.A. 77. The Veterans Court, then, ordered
the VA to respond to Mr. Proceviat’s request for examina-
tion notes and medical literature. A month later, the VA
mailed Mr. Proceviat a letter noting no examination notes
exist and providing Mr. Proceviat a weblink to a general
repository of medical literature. S.A. 88. Based on that
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4 PROCEVIAT v. MCDONOUGH
letter, the VA again argued Mr. Proceviat’s request for doc-
uments was moot. It also argued that Mr. Proceviat could
request an independent medical opinion through the ordi-
nary appellate process. Thus, in the VA’s view, that por-
tion of Mr. Proceviat’s petition should have been denied.
The Veterans Court agreed on both grounds. S.A. 1–3.
It determined that “the Secretary [had] complied with
[Mr. Proceviat’s] requests for the examiner’s CV, medical
literature, and medical notes.” S.A. 2. Thus, it dismissed
Mr. Proceviat’s request for an order to compel the produc-
tion of documents as moot. It also determined that
Mr. Proceviat could raise his request for an independent
medical opinion during his direct appeal. Because
Mr. Proceviat had an alternative means to obtain his de-
sired relief, the Veterans Court denied this portion of
Mr. Proceviat’s petition. Mr. Proceviat sought reconsider-
ation, which the Veterans Court denied, and a panel deci-
sion, which a three-judge panel granted. The panel
adopted the single-judge order. Mr. Proceviat appeals.
II
We begin with Mr. Proceviat’s partial challenge to the
Veterans Court’s mootness holding. Appellant’s Informal
Br. at 4–5. We review de novo the Veterans Court’s reso-
lution of legal questions, including whether a petition for
mandamus is moot. 38 U.S.C. § 7292(d)(1) (We “shall de-
cide all relevant questions of law . . . .”); see also Maggitt v.
West, 202 F.3d 1370, 1374 (Fed. Cir. 2000) (“The jurisdic-
tional reach of the Veterans Court presents a question of
law for our plenary review.”). For a petition to be moot
based on the VA providing the requested relief, the claim-
ant must have “receive[d] all [his] requested relief.” Mote
v. Wilkie, 976 F.3d 1337, 1342 (Fed. Cir. 2020) (emphasis
added). When a decision “did not provide all of the relief
. . . requested, . . . a case or controversy remains.” Id.Mr. Proceviat requested the VA provide him with “the
specific medical literature that was relied upon” to deny his
Case: 21-1810 Document: 18 Page: 5 Filed: 09/16/2021
PROCEVIAT v. MCDONOUGH 5
claim for service connection. S.A. 20. Yet the VA only pro-
vided him with a weblink to a general repository of medical
literature. S.A. 88. On appeal, Mr. Proceviat argues that
he was unable to access the requested medical literature at
that link: “VA provided me with a website link to the med-
ical lit[erature] . . . which I clicked . . . but did not see the
specific medical lit[erature] that was relied upon.” Infor-
mal Br. at 4. And on this record, we cannot even determine
whether those articles are available at www.up-
todate.com. 2 In short, Mr. Proceviat has not been provided
all his requested relief.
Accordingly, his request for the specific medical litera-
ture relied upon is not moot. Mote, 976 F.3d at 1342. To
be clear, we do not address the merits of Mr. Proceviat’s
request. That is, we offer no opinion on whether the VA is
obligated, under the statutory and regulatory framework,
to comply with Mr. Proceviat’s request for the specific jour-
nal articles. Nor do we foreclose the possibility that the VA
will take further actions (e.g., mailing Mr. Proceviat phys-
ical copies of the medical literature) that will indeed moot
Mr. Proceviat’s request. But as of now, based on the record
before this court, the VA has not provided Mr. Proceviat all
of his requested relief. Accordingly, the Veterans Court
erred in holding this portion of Mr. Proceviat’s petition was
moot.
III
We next consider Mr. Proceviat’s challenge to the Vet-
erans Court’s denial of mandamus for an independent med-
ical opinion. Appellant’s Informal Br. at 6–9. We have
2 This failure is indicative of a broader failure to pro-
vide the court with a complete record. Many important
documents, like the medical examiner’s report and the Vet-
erans Court’s interlocutory orders, were not included in the
VA’s supplemental appendix.
Case: 21-1810 Document: 18 Page: 6 Filed: 09/16/2021
6 PROCEVIAT v. MCDONOUGH
“jurisdiction to review the [Veterans Court]’s decision
whether to grant a mandamus petition that raises a non-
frivolous legal question.” Beasley v. Shinseki, 709 F.3d
1154, 1158 (Fed. Cir. 2013). When a mandamus claim is
based on unreasonable delay, the Veterans Court must ap-
ply the six-factor test adopted in Martin v. O’Rourke, 891
F.3d 1338, 1344–45 (Fed. Cir. 2018). Failure to consider
those factors, often called the TRAC factors, is legal error.
See, e.g., Mote, 976 F.3d at 1345.
Mr. Proceviat requested a writ of mandamus because
he had “not received . . . any mention of an [independent
medical opinion].” S.A. 5. We see two possible interpreta-
tions of that request, which are not mutually exclusive.
First, Mr. Proceviat may have been requesting a writ com-
pelling the VA to provide him an independent medical opin-
ion. Second, Mr. Proceviat may have been requesting a
writ compelling the VA to issue a decision on his request
for an independent medical opinion. We are required,
given Mr. Proceviat’s pro se status, to interpret his filings
liberally. Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir.
2009); cf. Erickson v. Pardus, 551 U.S. 89, 94 (2007). So we
treat Mr. Proceviat’s request as seeking both forms of re-
lief.
We see no legal error under the first interpretation of
Mr. Proceviat’s request. As the Veterans Court held,
Mr. Proceviat is free to seek an independent medical opin-
ion in his direct appeal. And mandamus is available only
when a petitioner lacks adequate alternative means to ob-
tain the desired relief. Cheney v. U.S. Dist. Court, 542 U.S.
367, 380–81 (2004).
But the Veterans Court failed to apply the correct legal
framework under the second interpretation. At no point
did that court consider or apply the TRAC factors to
Mr. Proceviat’s request. Instead, it denied mandamus be-
cause Mr. Proceviat “has an alternative means to obtain
his desired relief.” S.A. 3. But that reflects a fundamental
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PROCEVIAT v. MCDONOUGH 7
misunderstanding of unreasonable delay claims. A veteran
who is claiming the VA has failed to render a timely deci-
sion cannot seek relief through direct appeal. He must pe-
tition for a writ of mandamus before the Veterans Court to
obtain that relief. And Mr. Proceviat did just that, as we
interpret his request. Therefore, to resolve Mr. Proceviat’s
unreasonable delay claim, the Veterans Court was obli-
gated to apply the TRAC factors. See Mote, 976 F.3d at
1345. And we remand for it to fulfill that obligation. 3
Again hereto the VA could moot this portion of the petition
by issuing a decision on Mr. Proceviat’s request for an in-
dependent medical opinion—a decision that he is still wait-
ing for more than two-and-one-half years after he
requested it.
IV
Because the VA committed legal errors in both its hold-
ings, the Veterans Court’s opinion is
VACATED AND REMANDED
COSTS
Costs to Mr. Proceviat.
3 It is worth noting that at many points throughout
this process the adjudicator (VA and Veterans Court) fum-
bled Mr. Proceviat’s requests. The Secretary in fact
acknowledged the VA’s poor handling of the matter.
S.A. 7–9. It is our hope that, recognizing the repeated de-
lays and fumbles, the VA will act promptly to resolve this
case.