United States Court of Appeals
for the Federal Circuit
__________________________
LELAND A. HARGROVE,
Claimant-Appellant,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee.
__________________________
2010-7043
__________________________
Appeal from the United States Court of Appeals for Vet-
erans Claims in 09-2657, Judge Mary J. Schoelen.
___________________________
Decided: January 6, 2011
___________________________
LELAND A. HARGROVE, of Silver Spring, Florida, pro se.
DAVID D’ALESSANDRIS, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and MARTIN F.
HOCKEY, JR., Assistant Director. Of counsel on the brief
were MICHAEL J. TIMINSKI, Deputy Assistant General Coun-
HARGROVE v. DVA 2
sel, and AMANDA R. BLACKMON, Attorney, United States
Veterans Affairs, of Washington, DC.
__________________________
Before RADER, Chief Judge, NEWMAN, AND MOORE, Circuit
Judges.
Opinion for the court filed by Circuit Judge MOORE.
Dissenting opinion filed by Circuit Judge NEWMAN.
MOORE, Circuit Judge.
Mr. Leland Hargrove appeals the denial of his petition
for a writ of mandamus by the Veterans Court. Hargrove v.
Shinseki, No. 09-2657, slip op. (C.A.V.C. Oct. 27, 2009). No
other issue is properly before us. Because Mr. Hargrove had
not exhausted his administrative remedies before filing his
petition—indeed, he still had time to appeal through the
administrative process when the court issued its denial—
the Veterans Court did not abuse its discretion in denying
mandamus. Accordingly, we affirm the Veterans Court’s
decision.
On September 30, 2008, the Regional Office (RO) sent
Mr. Hargrove a letter proposing a reduction in Mr.
Hargrove’s disability rating. The proposed reduction invited
Mr. Hargrove to “submit medical or other evidence to show
that we should not make this change” within 60 days of
receiving the letter. Between October 23, 2008 and Decem-
ber 1, 2008, Mr. Hargrove sent three letters to the RO
requesting a copy of the examination report, disagreeing
with the proposed reduction, and providing additional
medical information. The RO provided Mr. Hargrove a copy
of the examination report and considered the additional
information in making its final decision. It did not treat his
3 HARGROVE v. DVA
correspondence as a Notice of Disagreement (NOD) because
it was received before the RO issued its final decision.
By letter dated February 25, 2009, the RO issued its fi-
nal decision reducing Mr. Hargrove’s disability rating from
60 percent to 20 percent. Mr. Hargrove subsequently filed
his petition for writ of mandamus with the Veterans Court
asserting that the VA failed to recognize his correspondence
sent on November 29, 2008 as a NOD, issue him a State-
ment of the Case (SOC), and assist him in developing evi-
dence to support his claim.
In its order issued on October 27, 2009, the Veterans
Court reviewed the three conditions that must be satisfied
before a writ of a mandamus may issue: (1) the petitioner
must lack an adequate alternative means to attain relief; (2)
the petitioner must demonstrate a clear and indisputable
right to the writ; and (3) the court must be convinced, given
the circumstances, that the issuance of the writ is war-
ranted. Hargrove, slip op. at 2 (citing Cheney v. U.S. Dist.
Court, 542 U.S. 367, 380-81 (2004)). The Veterans Court
denied Mr. Hargrove’s mandamus petition finding that Mr.
Hargrove was not without adequate remedy because the
traditional appeal and administrative processes had been
and were still available. Id. at 3-4. According to the Veter-
ans Court, “the petitioner has not demonstrated that he has
exhausted his administrative remedies.” Id. at 9.
The Veterans Court explained that Mr. Hargrove could
still appeal the February 2009 final decision by filing a NOD
by February 25, 2010. “If the petitioner is dissatisfied with
the February 2009 RO decision, the petitioner may avail
himself of VA’s appellate process by filing an NOD as to that
decision.” Id. The Veterans Court further explained that
Mr. Hargrove could argue to the Board that the VA failed to
properly assist him in obtaining the medical evidence neces-
HARGROVE v. DVA 4
sary to support his claims. Id. Finally, the court explained
that Mr. Hargrove could also appeal the VA’s decision that
his correspondence was not a NOD because it was prema-
ture. Id.
The Veterans Court correctly denied Mr. Hargrove’s pe-
tition. A writ of mandamus is an “extraordinary remedy.”
Mukand Int’l, Ltd. v. United States, 502 F.3d 1366, 1369
(Fed. Cir. 2007); Cheney, 542 U.S. at 381 (referring to the
writ as “one of ‘the most potent weapons in the judicial
arsenal’”). The only issue before the Veterans Court was
whether to grant petitioner a writ of mandamus. In light of
the fact that Mr. Hargrove had an adequate alternative
means to attain the relief he requested, the Veterans Court
properly denied the writ of mandamus. The Supreme Court
explained in Cheney, “the party seeking issuance of the writ
must have no other adequate means to attain the relief he
desires -- a condition designed to ensure that the writ will
not be used as a substitute for the regular appeals process.”
Cheney, 542 U.S. at 380-81 (internal quotation marks
omitted); Lamb v. Principi, 284 F.3d 1378, 1384 (Fed. Cir.
2006). The Veterans Court’s October 27, 2009 decision
explained to Mr. Hargrove that he had until February 25,
2010 to file a NOD to the VA and have administrative
review of all of the issues he raised. The Veterans Court did
not decide whether the VA was correct when it failed to
treat Mr. Hargrove’s three letters sent prior to the final
rating reduction as NODs because Mr. Hargrove could still
appeal that issue (along with all his others) through the
administrative process. We likewise express no opinion on
whether the VA should have treated those letters as NODs
because that issue is not before us. 1 The only issue on
1 We likewise express no opinion on whether the fail-
ure to treat Mr. Hargrove’s correspondence as NODs is now
5 HARGROVE v. DVA
appeal to this court is whether the Veterans Court properly
denied a petition for writ of mandamus when Mr. Hargrove
could still avail himself of his administrative appeal rights.
We conclude the Veterans Court properly denied the writ of
mandamus.
For the forgoing reasons, we affirm the Veterans Court’s
denial of a writ of mandamus.
AFFIRMED
COSTS
No costs.
final or remains open and appealable. See AG v. Peake, 536
F.3d 1306, 1310-11 (Fed. Cir. 2008).
United States Court of Appeals
for the Federal Circuit
__________________________
LELAND A. HARGROVE,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7043
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in 09-2657, Judge Mary J. Schoelen.
__________________________
NEWMAN, Circuit Judge, dissenting.
Mr. Hargrove received a letter from the Regional Of-
fice dated September 30, 2008, concerning the proposed
reduction in his disability rating, enclosing a twelve-page
document entitled “Rating Decision” dated September 23,
2008. The Rating Decision listed fifteen points of decision
and explanations of each, and designated three conditions
subject to compensation and twenty-four conditions not
subject to compensation. The accompanying letter con-
tained a paragraph headed “How We Made Our Decision,”
which states:
We have carefully considered all of the evidence
we received. We have attached a copy of the Rat-
HARGROVE v. DVA 2
ing Decision. It shows the evidence we used and
the reasons for our decision.
The letter also stated that Mr. Hargrove could submit
additional evidence and request a personal hearing. On
October 23, 2008 Mr. Hargrove filed a Notice of Dis-
agreement, in accordance with the procedures for appeal-
ing a Regional Office decision to the Board of Veterans
Appeals (“BVA”). He requested a copy of his examination
report, which the Regional Office provided. However, the
Regional Office did not forward the record to the BVA or
provide a Statement of the Case, as required when a
Notice of Disagreement is filed:
38 U.S.C. § 7105 (d)(1): Where the claimant, or
the claimant's representative, within the time
specified in this chapter, files a notice of dis-
agreement with the decision of the agency of
original jurisdiction, such agency will take such
development or review action as it deems proper
under the provisions of regulations not inconsis-
tent with this title. If such action does not resolve
the disagreement either by granting the benefit
sought or through withdrawal of the notice of dis-
agreement, such agency shall prepare a statement
of the case.
On November 29, 2008, Mr. Hargrove filed a second
Notice of Disagreement, and on December 1, 2008 he sent
a third Notice of Disagreement, with “additional argu-
ment regarding his knees and other issues under consid-
eration.” The Regional Office did not respond to any of
these three Notices of Disagreement, did not describe any
purported flaws in these documents, but also did not
transmit the record to the BVA or provide a Statement of
the Case. Nor did the Regional Office inform Mr.
Hargrove of its action or inaction.
3 HARGROVE v. DVA
On February 25, 2009, the Regional Office sent Mr.
Hargrove a document stating that the reduction in his
benefits had been implemented, and that “We have en-
closed a copy of our Rating Decision for your review.”
This document referred to the “Rating Decision, dated
September 23, 2008,” and repeated the evaluations of the
evidence of his various conditions. The February 25, 2009
letter referred to Mr. Hargrove’s “statement dated No-
vember 30, 2008,” and stated that he “quoted various
Department of Veterans Affairs regulations,” and “also
noting that you were not properly assessed.” However,
the February 25, 2009 letter made no mention of any of
the three Notices of Disagreement. The Regional Office
did not forward the record to the Board, and did not
provide a Statement of the Case.
Mr. Hargrove sought the assistance of the Court of
Appeals for Veterans Claims, complaining that the Re-
gional Office had not provided a Statement of the Case
and had not forwarded his file to the BVA. In the Veter-
ans Court the VA stated that the reason the Regional
Office did not respond to any of the three Notices of
Disagreement was because the decision was not final.
However, Mr. Hargrove was not so advised at any time in
his exchanges with the Regional Office.
A similar lapse of notice was the subject of AG v.
Peake, 536 F.3d 1306 (Fed. Cir. 2008), where the veteran
had submitted a Notice of Disagreement to the Regional
Office, received no response, and then sent a second letter
to inquire as to the status of the Notice of Disagreement;
the Regional Office was unable to find the first letter, but
held that appeal was no longer available because the
second letter was untimely. This court held that the
failure to notify tolled the finality of the Regional Office
decision, so that the appeal was not untimely:
HARGROVE v. DVA 4
The 1985 determination never became final as a
result of the failure to notify AG of his right to ap-
peal the denial of his NOD. The letter sent to AG
merely stated that there was no record of a previ-
ous NOD and that the appeal period for the 1983
decision had expired; it also provided instructions
for AG to reopen his claim. The statute, however,
states that the VA must provide to a claimant no-
tice of any decision affecting the provision of bene-
fits to a claimant, and that “[t]he notice shall
include an explanation of the procedure for ob-
taining review of the decision.” 38 U.S.C. § 5104(a).
536 F.3d at 1310. The court cited Best v. Brown, 10 Vet.
App. 322, 325 (1997), where the Veterans Court held that
failure to notify the claimant of a Regional Office decision
constituted a procedural error under 38 C.F.R. §§ 3.103(e)
and 3.104(a).
Although the Regional Office decision was not totally
free of ambiguity, this silence, when there was an obliga-
tion to respond, is contrary to the veterans’ laws, contrary
to precedent, and contrary to the policy entrusted to the
VA and its tribunals. The failure to notify Mr. Hargrove,
if the Regional Office was of the view that his three
Notices of Disagreement were premature, constituted
procedural error. Statute and precedent require “notice of
any decision affecting the provision of benefits to a claim-
ant.” AG v. Peake, 536 F. 3d at 1310; see also 38 U.S.C.
5104 (a). Such notice was not given to Mr. Hargrove, and
no explanation whatsoever was provided until an expla-
nation was suggested–without documentation–by the
Secretary’s counsel in this litigation. Nonetheless, my
colleagues now simply dismiss the veteran’s petition,
declining to consider whether procedural law or policy
was violated and declining to enable further proceedings.
5 HARGROVE v. DVA
The court thus ratifies the VA inaction whereby the
three Notices of Disagreement were ignored by the Re-
gional Office, with no notice to the veteran, and now with
no path to remedy the VA’s inaction. This departure from
the requirements of precedent and statute is an affront to
“the principles underlying this uniquely pro-claimant
system,” Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir.
2010). I respectfully dissent.