Vaughn v. Dept. Of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
BURDELL VAUGHN,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7185
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 11-832, Judge Robert N.
Davis.
_________________________
Decided: February 9, 2012
_________________________
BURDELL VAUGHN, of West Milwaukee, Wisconsin, pro
se.
SARAH M. BIENKOWSKI, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With her on the brief were TONY WEST, Assis-
VAUGHN v. DVA 2
tant Attorney General, JEANNE E. DAVIDSON, Director,
and MARTIN F. HOCKEY, JR., Assistant Director.
__________________________
Before PROST, MAYER, and O’MALLEY, Circuit Judges.
PER CURIAM.
Burdell Vaughn, pro se, appeals an order of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) denying his petition for a writ of
mandamus. Vaughn v. Shinseki, 2011 WL 1229064 (Vet.
App. Apr. 4, 2011) (“Veterans Court Decision”). Because
Mr. Vaughn possesses adequate alternative means to
pursue the relief he requests, namely by direct appeal, we
conclude that the Veterans Court did not abuse its discre-
tion in denying mandamus relief. Accordingly, we affirm.
BACKGROUND
In December 1991, Mr. Vaughn filed a benefit claim
for a back injury he allegedly sustained while on active
duty. The Chicago Regional Office (“RO”) denied his
claim in a 1992 ratings decision, and Mr. Vaughn did not
appeal that decision. Over the next 18 years, Mr. Vaughn
made several filings with the RO, the Board of Veterans
Appeals (“Board”), and this court, attempting to revise the
1992 ratings decision through various means, including
petitions for writs of mandamus. 1
As it relates to the current appeal, in 2010 Mr.
Vaughn asserted clear and unmistakable error (“CUE”) in
1 See Vaughn v. Shinseki, 403 Fed. Appx. 514 (Fed.
Cir. Dec. 2, 2010) (dismissing appeal from denial of peti-
tion for writ of mandamus); Vaughn v. Shinseki, 2010 WL
1805365 (Vet. App. May 6, 2010) (denying mandamus
relief); Vaughn v. Principi, 2004 WL 1302469 (Vet. App.
May 25, 2004) (same); Vaughn v. West, 2000 WL 920249(Vet. App. June 22, 2000) (same).
3 VAUGHN v. DVA
the 1992 ratings decision, which the RO rejected. In
response, Mr. Vaughn filed a Notice of Disagreement with
the RO’s decision. In addition to filing this notice, Mr.
Vaughn sent a letter to the Board on January 10, 2011.
In the letter, Mr. Vaughn asserted that the Milwaukee
RO was biased in its September 2010 decision, contending
that the RO failed to provide adequate reasons and bases
for its decision, neglected to address several key pieces of
favorable evidence, and fabricated false evidence against
him. He further argued that the RO’s conduct violated
his constitutional rights to due process and equal protec-
tion of the laws.
The Board responded to Mr. Vaughn’s correspondence
on May 27, 2011, advising him of its inability to address
the decision made by the RO until he perfected an appeal.
It provided further instructions to Mr. Vaughn on how to
do so, directing him to file a Substantive Appeal by Sep-
tember 16, 2011. In accordance with the Board’s instruc-
tions, Mr. Vaughn completed and filed a Substantive
Appeal, and on June 22, 2011, the Board acknowledged
receipt of Mr. Vaughn’s file and confirmed docketing of his
appeal. 2
Nonetheless, before receiving the Board’s May 27,
2011 response, on March 18, 2011, Mr. Vaughn filed a
petition for extraordinary relief in the nature of a writ of
mandamus with the Veterans Court, apparently con-
cerned that the Board was ignoring his calls for the aid
articulated in the January 10, 2011 letter. In his petition,
Mr. Vaughn appears to have alleged statutory and consti-
tutional violations paralleling the language in the letter
and requested leave to proceed to discovery at the Veter-
ans Court.
2 This appeal to the Board is not before this court.
VAUGHN v. DVA 4
Assuming jurisdiction solely over the petition for writ
of mandamus, the Veterans Court found that Mr. Vaughn
had failed to demonstrate that he lacked alternative
means to obtain his desired relief. Veterans Court Deci-
sion, at *1. It specifically noted that Mr. Vaughn had
already initiated the direct appeals process, and that, at
that time, Mr. Vaughn was waiting to receive the Board’s
Statement of the Case, after which he could file his Sub-
stantive Appeal. Further, the Veterans Court was not
convinced that the Board was refusing to act on Mr.
Vaughn’s letter, explaining that the passage of three
months did not demonstrate a failure to respond and that
agency delay must be unreasonable before the Veterans
Court will inject itself into the direct appeal process.
Finally, noting that it was not a factfinding body, the
Veterans Court denied Mr. Vaughn’s motion to proceed to
discovery. Accordingly, on April 4, 2011, the Veterans
Court denied Mr. Vaughn’s petition, and on July 1, 2011,
it upheld its denial on reconsideration by a three-judge
panel. Mr. Vaughn subsequently filed a timely appeal
with this Court.
DISCUSSION
Our review of Veterans Court decisions is limited by
statute. Under 38 U.S.C. § 7292(a), we may review “the
validity of a decision of the [Veterans] Court on a rule of
law or of any statute or regulation . . . or any interpreta-
tion thereof (other than a determination as to a factual
matter) that was relied on by the Court in making the
decision.” Unless an appeal presents a constitutional
issue, we “may not review (A) a challenge to a factual
determination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case.” 38 U.S.C. §
7292(d)(2).
5 VAUGHN v. DVA
The government first argues that we lack subject mat-
ter jurisdiction over this appeal because Mr. Vaughn does
not challenge any Veterans Court interpretation of a
statute, regulation, or the Constitution. We disagree.
Although our review of Veterans Court decisions is lim-
ited, we do possess jurisdiction over an appeal challenging
the Veterans Court’s denial of a petition for a writ of
mandamus in circumstances such as those presented
here. See Hargrove v. Shinseki, 629 F.3d 1377, 1379 (Fed.
Cir. 2011). We review the Veterans Court’s denial of a
petition for a writ of mandamus for abuse of discretion.
Lamb v. Principi, 284 F.3d 1378, 1384 (Fed. Cir. 2002).
We, thus, turn to the government’s alternative argu-
ment that we should affirm the Veterans Court’s decision
denying the writ Mr. Vaughn seeks. “The remedy of
mandamus is a drastic one, to be invoked only in extraor-
dinary situations.” Kerr v. U.S. Dist. Court for N. Dist. of
Cal., 426 U.S. 394, 402 (1976). A court may issue a writ
of mandamus only if three conditions are satisfied: (1) the
party seeking issuance of the writ must have no other
adequate means to obtain the relief he desires; (2) the
petitioner must demonstrate a clear and indisputable
right to the writ; and (3) the court, in its discretion, must
be convinced that the circumstances warrant issuance of
the writ. Cheney v. U.S. Dist. Court for Dist. of Columbia,
542 U.S. 367, 380–81 (2004).
In its decision denying Mr. Vaughn’s petition for a
writ of mandamus, the Veterans Court relied on the
availability of alternative means by which Mr. Vaughn
can obtain his desired relief, namely the direct appeals
process. Veterans Court Decision, at *1. This process
allows a claimant to appeal an RO decision to the Board,
the Veterans Court, and, ultimately, the Federal Circuit,
in that order. See 38 U.S.C. §§ 511, 7104, 7252, 7292.
Indeed, the Veterans Court noted that “[Mr. Vaughn] has
VAUGHN v. DVA 6
filed a Notice of Disagreement with the RO’s rating deci-
sion, and has therefore initiated the appeals process.”
Veterans Court Decision, at *1. Approximately two
months after the Veterans Court issued its opinion,
moreover, the Board confirmed the docketing of Mr.
Vaughn’s direct appeal. It appears that Mr. Vaughn’s
direct appeal remains before the Board, to be processed in
the normal course.
On appeal, Mr. Vaughn does not contest that he is
without adequate means for relief, other than to contend
that the direct appeals process is inherently unfair due to
bias, conflict of interest, and delay. But those are argu-
ments that Mr. Vaughn can raise, if he so chooses,
through the normal appellate procedure before the Board,
the Veterans Court, and this court. See, e.g., Dillard v.
Shinseki, 2011 WL 6116444, *4 (Vet. App. Dec. 9, 2011)
(considering the veteran’s argument that the Board was
biased against him). As we noted in a prior appeal by Mr.
Vaughn to this court, “[s]hould Mr. Vaughn wish to dis-
pute the RO decisions, there are appropriate procedures
in place for doing so.” Vaughn v. Shinseki, 403 Fed. Appx.
514, 516 (Fed. Cir. Dec. 2, 2010) (dismissing appeal from
denial of petition for writ of mandamus). Those are
precisely the procedures that make mandamus relief
inappropriate in this case because those procedures
provide Mr. Vaughn with an adequate means for relief.
Mr. Vaughn may not short cut the normal appeals process
by resort to requests for extraordinary relief. Conse-
quently, we hold that the Veterans Court did not abuse its
discretion when it found that Mr. Vaughn has not suffi-
ciently demonstrated that he has “no other adequate
means to obtain the relief he desires.” Cheney, 542 U.S.
at 380.
Accordingly, the Veterans Court’s decision to deny
mandamus relief is affirmed.
7 VAUGHN v. DVA
AFFIRMED
COSTS
Each party shall bear its own costs.