NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT G. THORNTON,
Claimant-Appellant,
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2014-7136
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-1601, Judge Coral Wong
Pietsch.
______________________
Decided: January 26, 2015
______________________
ROBERT G. THORNTON, Corona, California, pro se.
ANTHONY F. SCHIAVETTI, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were JOYCE R. BRANDA,
Acting Assistant Attorney General, ROBERT E.
KIRSCHMAN, JR., Director, and ALLISON KIDD-MILLER,
Assistant Director. Of counsel on the brief were Y. KEN
2 THORNTON v. MCDONALD
LEE, Deputy Assistant, General Counsel, and CHRISTINA
L. GREGG, Attorney, United States Department of Veter-
ans Affairs, of Washington, DC.
______________________
Before PROST, Chief Judge, NEWMAN, and REYNA, Circuit
Judges.
PER CURIAM.
Robert Thornton appeals the order of the Court of Ap-
peals for Veterans Claims (“Veterans Court”) denying his
petition for a writ of mandamus based on an alleged delay
in granting him benefits. Because the Veterans Court
properly denied Mr. Thornton’s petition, on the basis that
mandamus was not the only form of relief available, we
affirm.
BACKGROUND
Mr. Thornton, an Army veteran, filed an informal
claim for veterans’ benefits with the Department of Vet-
erans Affairs (“VA”) on March 1, 2007. After the VA
requested clarification of his claim, Mr. Thornton filed a
formal claim on October 17, 2007. In his formal claim,
Mr. Thornton sought (1) service connection for (a) hearing
loss in his left ear; (b) tinnitus; and (c) a psychiatric
disability; and (2) an increased rating for his service-
connected hearing loss in his right ear. Pursuant to his
claim for psychiatric disability, Mr. Thornton was exam-
ined for post-traumatic stress disorder (“PTSD”) in July
2008.
On September 12, 2008, the VA issued a rating deci-
sion which (1) granted service connection for his PTSD,
with a rating of 70 percent from the date of the formal
claim until his July 2008 examination, and a 50 percent
rating thereafter; (2) denied service connection for the
hearing loss in his left ear; and (3) continued the non-
compensable rating for the hearing loss in his right ear.
THORNTON v. MCDONALD 3
Mr. Thornton filed a Notice of Disagreement with the
September 12, 2008 decision on October 14, 2008, seeking
increased disability ratings, including a rating of 100
percent for his service-connected PTSD.
The VA issued a Statement of the Case on July 19,
2010. Eight days later, the VA accepted a statement from
Mr. Thornton in lieu of a VA Form 9, effectively initiating
his appeal. Because Mr. Thornton sought an increased
rating for his PTSD, the VA scheduled Mr. Thornton for
another examination. On December 11, 2012, a VA
Decision Review Officer (“DRO”) issued a rating decision,
increasing Mr. Thornton’s PSTD rating to 100 percent,
effective from the date of his formal claim, October 17,
2007.
Mr. Thornton filed a Notice of Disagreement with the
DRO’s rating decision in November 2013. After some
delay, Mr. Thornton filed a petition for a writ of manda-
mus on May 23, 2014. He sought certification of his
appeal of the effective dates of his disabilities and for-
warding of his claims to the Board of Veterans’ Appeals
(“Board”), expedited consideration of his appeal, an order
that the VA abide by various statutes, an order requiring
the VA to stipulate it unlawfully withheld or unreasona-
bly delayed Mr. Thornton’s benefits, and the grant of the
benefits sought.
On June 4, 2014, the VA issued a rating decision
granting an earlier effective date of March 1, 2007 (the
date of the informal claim) for Mr. Thornton’s PTSD, his
hearing loss, and tinnitus, as well as a higher rating for
the hearing loss. In a July 31, 2014 order, the Veterans
Court denied Mr. Thornton’s mandamus petition. The
Veterans Court denied the request for an order of a public
apology by the VA as it would be an improper use of
mandamus authority. The Veterans Court also refused to
grant the benefits sought or certify his appeal because Mr.
Thornton had an alternative remedy in the form of an
4 THORNTON v. MCDONALD
appeal from the June 4, 2014 decision and because any
delay on the VA’s part did not constitute an arbitrary
refusal to act.
Mr. Thornton appeals the Veterans Court’s denial of
his petition for a writ of mandamus. Mr. Thornton con-
tends that a supposed failure by the VA to consider a CD
with copies of relevant records in support of his manda-
mus petition and an informal Notice of Disagreement
from 1989 amounts to suppression of evidence that vio-
lates his due process rights.
DISCUSSION
Our jurisdiction over appeals from the Veterans Court
is statutorily limited. Congress has authorized this court
to “review . . . any challenge to the validity of any statute
or regulation or any interpretation thereof” and to “inter-
pret constitutional and statutory provisions, to the extent
presented and necessary to a decision.” 38 U.S.C.
§ 7292(c). We may not review challenges to factual de-
terminations or to laws or regulations as applied to the
facts of a particular case, except to the extent that the
appeal presents a constitutional issue. Id. § 7292(d)(2).
These restrictions apply to our review of a decision by the
Veterans Court on a mandamus petition. Lamb v. Princi-
pi, 284 F.3d 1378, 1381 (Fed. Cir. 2002).
While we cannot review the merits of a veteran-
petitioner’s claim, we can review a determination of
whether the petitioner has satisfied the legal require-
ments for a writ of mandamus to issue. Beasley v.
Shinseki, 709 F.3d 1154, 1158 (Fed. Cir. 2013). For a
court to grant the writ, three requirements must be
satisfied: (1) the petitioner must have no other adequate
means to attain the desired relief; (2) the petitioner must
show that the right to the relief is clear and indisputable;
and (3) exercising its discretion, the issuing court must
decide that the remedy is appropriate under the circum-
stances. Cheney v. United States Dist. Court for D.C., 542
THORNTON v. MCDONALD 5
U.S. 367, 380-81 (citations and quotations omitted).
Indeed, the bar for mandamus relief is very high because
the mandamus remedy is a drastic one, only to be granted
in extraordinary circumstances. Kerr v. United States
Dist. Court for N. Dist. of Cal., 426 U.S. 394, 402 (1976).
Here, as the Veterans Court found, Mr. Thornton is
not able to meet all the requirements for mandamus
relief. First, Mr. Thornton does not satisfy the require-
ment that he have no other means of relief available. The
VA issued a decision on June 4, 2014 that addressed the
benefits Mr. Thornton was seeking and substantially
increased his ratings. If Mr. Thornton is not satisfied
with the VA’s decision, he may appeal it to the Board. In
light of the ability to appeal the VA’s decision, Mr.
Thornton is unable to meet the requirement that he have
no other adequate means besides a writ of mandamus to
obtain the relief he desires.
Second, the Veterans Court properly found that man-
damus relief was not justifiable under these circumstanc-
es merely because the VA’s decision was delayed. To this
point, the Veterans Court found that though Mr.
Thornton’s claim could have been processed more quickly,
the VA’s delay did not amount to an arbitrary refusal to
act. Mandamus relief would be improper simply to correct
past delays or prevent future ones. We have explained
that a petition for a writ of mandamus is not the appro-
priate vehicle for circumventing the appeals process “even
though hardship may result from delay and perhaps
unnecessary trial.” Lamb, 284 F.3d at 1384. The circum-
stantial delay in processing Mr. Thornton’s claim is
insufficient to justify mandamus relief.
CONCLUSION
Mr. Thornton is unable to meet the requirements for
the issuance of a writ of mandamus. Because he has
another means to attain his desired relief and mandamus
is not justified under these circumstances, we affirm the
6 THORNTON v. MCDONALD
Veterans Court’s denial of his petition for a writ of man-
damus.
AFFIRMED
COSTS
Each party shall bear its own costs.