Deflanders v. Wilkie ( 2019 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DARREN L. DEFLANDERS,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-1969
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-6858, Chief Judge Robert N. Da-
vis.
______________________
Decided: December 11, 2019
______________________
DARREN L. DEFLANDERS, Ocean Spring, MS, pro se.
ZACHARY JOHN SULLIVAN, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by JOSEPH H. HUNT, CLAUDIA BURKE, ROBERT
EDWARD KIRSCHMAN, JR.; MARTIE ADELMAN, Y. KEN LEE,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
2 DEFLANDERS v. WILKIE
______________________
PER CURIAM.
Darren DeFlanders filed a petition for extraordinary
relief with the Court of Appeals for Veterans Claims (Vet-
erans Court), principally challenging the length of time the
Department of Veterans Affairs (VA) was taking to rule on
his claims for disability benefits. The Veterans Court
treated the petition as a request for mandamus relief and
denied the petition. Finding no abuse of discretion under
the demanding standards for mandamus relief, we affirm
the denial. Mr. DeFlanders raises several additional
claims in his appeal to this court, but we lack jurisdiction
over those claims, which we therefore dismiss.
I
A
Mr. DeFlanders served on active duty in the United
States Army from 1989 to 1996. In 1997, he filed with the
VA an initial application for disability compensation, as-
serting at least 28 disabilities. In 1998, a regional office of
the VA denied the majority of those claims. After an ex-
tensive series of appeals, the VA eventually determined
that Mr. DeFlanders met the requirements for compensa-
tion for a number of disability-causing conditions, includ-
ing polyarthralgia of the shoulders, hips, ankles, and feet;
a headache disorder; frequent bowel movements; and lat-
eral epicondylitis of the left elbow. Mr. DeFlanders contin-
ued to appeal several unfavorable determinations of the
regional office and the Board of Veterans’ Appeals.
In 2006, Mr. DeFlanders received an unfavorable deci-
sion from the Board on claims involving psychiatric disa-
bilities and substance abuse. Mr. DeFlanders did not
appeal that decision. In 2010, the VA regional office made
a similar negative determination regarding a psychiatric
disability and also denied Mr. DeFlanders an increased
DEFLANDERS v. WILKIE 3
disability rating for his lateral epicondylitis of the left el-
bow. In 2011, the Board remanded the matter for the re-
gional office to determine whether new and material
evidence had been submitted regarding the psychiatric-dis-
ability claim and to reopen the claim if warranted. The
Board did not address the claim based on substance abuse,
but the Veterans Court remanded for the Board to consider
that claim. When Mr. DeFlanders appealed to this court,
we dismissed the appeal for lack of jurisdiction. DeFlan-
ders v. Gibson, 566 F. App’x 953 (Fed. Cir. 2014). In 2014,
the Board determined that there was no new and material
evidence regarding the asserted psychiatric disability. In
2015, the Board made a similar determination regarding
the substance-abuse claim. In January 2017, the Veterans
Court vacated the Board’s decision refusing to reopen the
psychiatric-disability claim. On remand, the Board noted
that the VA Appeals Management Center had recently
granted both of those claims. Therefore, the Board consid-
ered the issues resolved.
Some aspects of Mr. DeFlanders’s claims, it appears,
have not yet been resolved. According to a statement of the
case prepared by the VA in March 2019, there are continu-
ing disputes about the compensation rating and effective
date regarding the psychiatric disability and substance
abuse, the effective date and compensation rating for left
breast gynecomastia, and whether shortness of breath is
connected to his military service.
B
In October 2018, Mr. DeFlanders filed a petition for ex-
traordinary relief—in the nature of a request for a writ of
mandamus—with the Veterans Court. Mr. DeFlanders ar-
gued principally that his petition should be granted be-
cause the VA had unreasonably delayed the adjudication of
his outstanding claims. He also asked the court to compel
the VA to pay him $3 million either as compensation for an
4 DEFLANDERS v. WILKIE
alleged breach of confidentiality or, alternatively, as a set-
tlement of his outstanding disability claims.
Considering Mr. DeFlanders’s underlying claim of un-
due delay of agency action, the Veterans Court applied the
legal framework for such claims articulated in Telecommu-
nications Research & Action Center v. FCC, 750 F.2d 70, 79
(D.C. Cir. 1984) (TRAC). The Veterans Court concluded
that Mr. DeFlanders did not establish entitlement to man-
damus relief based on the TRAC framework. DeFlanders
v. Wilkie, 2019 WL 1893323, at *2 (Vet. App. 2019). The
court also concluded that it lacked jurisdiction over claims
arising from breaches of confidentiality and that it lacked
any separate equitable power to award Mr. DeFlanders
money as a settlement for his outstanding claims (which
are to be adjudicated through the statutorily prescribed
process of Board decisions and Veterans Court review of
such decisions). Id. at *3.
Mr. DeFlanders now appeals the denial of his petition.
II
Congress has given this court limited subject matter
jurisdiction over appeals from the Veterans Court. See 38
U.S.C. § 7292. We have jurisdiction to review “the validity
of a decision of the [Veterans] 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 [Veterans] Court in making the deci-
sion.” Id., § 7292(a). We do not have jurisdiction to “review
findings of fact or application of law to 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)). We have jurisdiction to re-
view 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.
DEFLANDERS v. WILKIE 5
A
The Veterans Court has authority, pursuant to the All
Writs Act, 28 U.S.C. § 1651(a), “to issue writs of mandamus
in aid of its jurisdiction.” Cox v. West, 149 F.3d 1360, 1363
(Fed. Cir. 1998). Issuance of a writ of mandamus is a dras-
tic and extraordinary remedy, reserved for exceptional cir-
cumstances. Cheney v. U.S. District Court for D.C., 542
U.S. 367, 380 (2004). In a case like this one, issuance of the
writ would require Mr. DeFlanders to show that he had “no
other adequate means” to obtain relief, that he had a “clear
and indisputable” right to issuance of the writ, and that the
writ is appropriate under the circumstances. Id. at 380–
81.
1
When an allegedly unreasonable delay is the basis of a
mandamus petition, we have analyzed the petition’s merits
within the framework of TRAC. See Martin v. O’Rourke,
891 F.3d 1338, 1344–45 (Fed. Cir. 2018) (citing TRAC). We
have included the following principles in the analysis: (1)
The time the agency takes to make decisions must be gov-
erned by a “rule of reason.” (2) Where Congress has pro-
vided a timetable or other indication of the speed with
which it expects the agency to proceed, the statutory
scheme may supply content for the rule of reason. (3) De-
lays that might be reasonable in the sphere of economic
regulation are less tolerable when human health and wel-
fare are at stake. (4) The court should consider the effect
that expediting delayed action might have on other re-
quired agency activities. (5) The court should also consider
the nature and extent of the interests prejudiced by the de-
lay. (6) To find unreasonable delay, the court need not find
any impropriety behind the delay on the agency’s part. Id.
Here, the Veterans Court neither committed legal error
nor otherwise abused its discretion in finding that manda-
mus was not warranted. The court appropriately consid-
ered the TRAC factors and found that, even though the
6 DEFLANDERS v. WILKIE
nature and extent of Mr. DeFlanders’s interest weighed in
favor of issuing a writ, the VA’s delay was a result of its
attempt to comply with its legal duties using its fixed and
limited resources. DeFlanders, 2019 WL 1893323, at *2.
We have not been shown that the Veterans Court abused
its discretion in so concluding, considering the TRAC prin-
ciples under the demanding standard for mandamus.
Therefore, we affirm the Veterans Court’s denial of the re-
quest for extraordinary relief based on the asserted undue
delay.
2
The All Writs Act gives the Veterans Court power to
“issue all writs necessary or appropriate in aid of [its] re-
spective jurisdiction[].” 28 U.S.C. § 1651(a); see Cox, 149
F.3d at 1363. The Veterans Court’s jurisdiction is granted
by 38 U.S.C. § 7252, which authorizes the court to “affirm,
modify, or reverse a decision of the Board.” 38 U.S.C.
§ 7252(a). Section 7252 does not provide the Veterans
Court authority to award Mr. DeFlanders money damages
for a breach of confidentiality. Thus, a writ granting Mr.
DeFlanders’s request for such damages would not be “in aid
of” the Veterans Court’s jurisdiction. We affirm the court’s
determination that it lacked the power to grant this relief.
B
In his informal brief, Mr. DeFlanders also appears to
challenge specific rulings of the VA on his benefits claims.
In particular, he refers to claims relating to “severe chronic
back pain,” “memory loss,” “Risperdal,” “lung disease,” and
“left shoulder/left breast.” Appellant Br. at 1. But we lack
jurisdiction to address such claims, for at least the follow-
ing reasons.
To the extent that Mr. DeFlanders’s claim for “severe
chronic back pain” refers to his earlier polyarthralgia
claim, the Veterans Court previously affirmed the Board’s
denial of an increased disability rating. DeFlanders v.
DEFLANDERS v. WILKIE 7
McDonald, 2017 WL 83645, at *6 (Vet. App. 2017). Mr.
DeFlanders later withdrew his appeal of the Veterans
Court’s decision. DeFlanders v. Shulkin, 2017 WL
3951872, at *1 (Fed. Cir. 2017). That decision is not
properly before us now.
To the extent that Mr. DeFlanders’s claims relating to
“memory loss,” “Risperdal,” “lung disease,” and “left shoul-
der/left breast” disabilities refer to his claims relating to
post-traumatic stress disorder, headaches, shortness of
breath, and left breast gynecomastia, each of those claims
is currently on appeal to the Board. S.A. 45–91. The Vet-
erans Court has not yet rendered a decision on those
claims, which we therefore lack jurisdiction to address. 38
U.S.C. § 7292.
Mr. DeFlanders also appears to contest the VA’s deter-
mination that certain determinations by the Social Secu-
rity Administration do not constitute new and material
evidence. Appellant Br. at 1. But we lack jurisdiction to
review such determinations outside the prescribed channel
of appeals from Veterans Court reviews of particular Board
claims decisions. Further, the challenge, as Mr. DeFlan-
ders frames it, is merely to the application of the “new and
material evidence” standard to particular facts, a challenge
we lack jurisdiction to address. See Routen v. West, 142
F.3d 1434, 1437 (Fed. Cir. 1998).
The remainder of Mr. DeFlanders’s claims—including
those asserted in his supplemental submissions, e.g., ECF
Nos. 52, 53, 54, 55, 56, 58, and 59—are similarly outside
our jurisdiction. Our jurisdiction here is limited to the pro-
priety of the Veterans Court’s denial of the mandamus pe-
tition. Therefore, we dismiss Mr. DeFlanders’s other
claims and requests for relief. Mr. DeFlanders’s motion for
expedited relief, ECF No. 41, is moot. All pending motions
are denied.
8 DEFLANDERS v. WILKIE
III
For the foregoing reasons, we affirm the Veterans
Court’s denial of mandamus, and we dismiss the appeal as
to other issues.
The parties shall bear their own costs.
AFFIRMED IN PART AND DISMISSED IN PART