NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HAROLD W. VAN ALLEN,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7100
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-1935, Judge William A. Moor-
man.
______________________
Decided: January 12, 2016
______________________
HAROLD W. VAN ALLEN, Hurley, NY, pro se.
MELISSA L. BAKER, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
MARTIN F. HOCKEY, JR.; Y. KEN LEE, BRANDON A. JONAS,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
2 VAN ALLEN v. MCDONALD
______________________
Before PROST, Chief Judge, REYNA and WALLACH, Circuit
Judges.
PER CURIAM.
Appellant Harold Van Allen appeals the decision of
the United States Court of Appeals for Veterans Claims
(“CAVC”), which denied his petition for writ of manda-
mus. See Van Allen v. McDonald, No. 15-1935, 2015 WL
3767103 (Vet. App. June 17, 2015). For the reasons set
forth below, we affirm the CAVC’s denial of writ of man-
damus.
BACKGROUND
Mr. Van Allen served on active duty in the Navy from
1973 to 1978. In 2006, the Department of Veterans
Affairs (“VA”) awarded Mr. Van Allen service connection
for his suprasellar arachnoid cyst. In 2011, Mr. Van Allen
sought “[s]ervice connection for sleep apnea as secondary
to the service connected disability post-operative residuals
surgery from malocclusion of [the] seventh cranial nerve
weakness.” Appellee’s Suppl. App. 9. Mr. Van Allen
asserted the sleep apnea was a result of mandibular
setback surgery (jaw surgery) that he underwent in 1975.
See id. at 26–27. In October 2013, the Albany, New York
VA Regional Office denied Mr. Van Allen’s sleep apnea
claim.
In July 2013, prior to the VA’s denial of Mr. Van Al-
len’s claim of service connection for sleep apnea, he filed a
petition for writ of mandamus with the CAVC, “seeking
the [CAVC] to compel the Albany, New York VA
[R]egional [O]ffice [] to act on his claims.” Van Allen v.
Shinseki, No. 13-2235, 2014 WL 266370, at *1 (Vet. App.
Jan. 24, 2014). The CAVC denied Mr. Van Allen’s peti-
tion because he had “obtained the relief requested in his
petition: VA action on his claims.” Id. at *3. The CAVC
VAN ALLEN v. MCDONALD 3
also informed Mr. Van Allen of his right to submit a
Notice of Disagreement to the Albany, New York VA
Regional Office. Id.
On October 9, 2013, the Albany, New York VA Re-
gional Office received Mr. Van Allen’s Notice of Disa-
greement and ultimately affirmed the denial of his claim
in April 2015. The Albany, New York VA Regional Office
noted the “[s]ervice connection was denied because the
available medical evidence did not show [Mr. Van Allen’s]
condition resulted from, or was aggravated by, a service-
connected disability.” Appellee’s Suppl. App. 26. In April
2015, Mr. Van Allen filed a substantive appeal as to this
claim. See Van Allen, 2015 WL 3767103 at *1.
In addition to his substantive sleep apnea appeal, Mr.
Van Allen filed a second petition for writ of mandamus
with the CAVC in May 2015. This petition requested that
the CAVC issue an order directing the Albany, New York
VA Regional Office “to immediately certify the Record on
Appeal to the Board of Veterans’ Appeals . . . regarding
his claim of entitlement to service connection for sleep
apnea as secondary to his service-connected residuals of
the 1975 in-service jaw (mandibular) setback surgery.”
Id. (internal quotation marks and citation omitted). The
CAVC denied Mr. Van Allen’s petition, noting the docu-
mentation submitted with his petition demonstrates “that
VA has been acting on his claim” and he has “not shown
that he is entitled to relief at this time because he only
recently submitted his Substantive Appeal to the Board
[of Veterans’ Appeals] and has not yet provided the [Al-
bany, New York VA Regional Office] with the opportunity
to act on it.” Id. Mr. Van Allen subsequently appealed
the CAVC’s denial of his petition for writ of mandamus.
DISCUSSION
Mr. Van Allen challenges the CAVC’s denial of his pe-
tition for a writ of mandamus. See Appellant’s Br. 1–2.
Specifically, he requests that this court issue a writ of
4 VAN ALLEN v. MCDONALD
mandamus ordering the CAVC to “consolidate all active
appeals and reinstate original proceeding appeal 2012-
5012 related [United States Court of Federal Claims]
case[s].” Id. at 2.
I. The CAVC Did Not Abuse Its Discretion or Commit
Legal Error in Denying the Petition for Writ of
Mandamus
We have limited jurisdiction to review decisions of the
CAVC. Wanless v. Shinseki, 618 F.3d 1333, 1336 (Fed.
Cir. 2010). This court has “exclusive jurisdiction to re-
view and decide any challenge to the validity of any
statute or regulation or any interpretation thereof . . . and
to interpret constitutional and statutory provisions, to the
extent presented and necessary to a decision.” 38 U.S.C.
§ 7292(c) (2012). “Absent a constitutional issue, however,
we lack the jurisdiction to ‘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.’”
Wanless, 618 F.3d at 1336 (quoting 38 U.S.C.
§ 7292(d)(2)).
We have held that despite our “limited jurisdiction to
review facts of a veteran’s underlying claim, . . . ‘[i]t is
unlikely that [§ 7292(d)(2)] was intended to insulate from
our review [the CAVC’s] decisions under the All Writs
Act,’ 28 U.S.C. § 1651(a) (2012), i.e., the relevant law
authorizing writs of mandamus.” McChesky v. McDonald,
No. 2015-7089, 2015 WL 8773064, at *2 (Fed. Cir. Dec. 15,
2015) (first and second alterations in original) (quoting
Lamb v. Principi, 284 F.3d 1378, 1381 (Fed. Cir. 2002)).
Section 7292 also provides this court
shall hold unlawful and set aside any regulation
or any interpretation thereof (other than a deter-
mination as to a factual matter) that was relied
upon in the decision of the [CAVC] that [this
court] finds to be—
VAN ALLEN v. MCDONALD 5
(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(B) contrary to constitutional right, power, privi-
lege, or immunity;
(C) in excess of statutory jurisdiction, authority,
or limitations, or in violation of a statutory right;
or
(D) without observance of procedure required by
law.
38 U.S.C. § 7292(d)(1). The “denial by the [CAVC] of a
petition for writ of mandamus may be reviewed when the
decision ‘raises a non-frivolous legal question.’” McChesky,
2015 WL 8773064 at *3 (quoting Beasley v. Shinseki, 709
F.3d 1154, 1158 (Fed. Cir. 2013)). “[W]e must determine
whether the [CAVC] ‘abused its discretion or committed
other legal error’ in denying mandamus.” Id. (quoting
Lamb, 284 F.3d at 1384).
Congress has expressly stated that “[t]he Supreme
Court and all courts established by Act of Congress may
issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and
principles of law.” 28 U.S.C. § 1651(a). However, “[t]he
remedy of mandamus is a drastic one, to be invoked only
in extraordinary situations.” Kerr v. United States Dist.
Ct. for N. Dist. of Cal., 426 U.S. 394, 402 (1976) (citations
omitted).
In determining whether petitions for writ of manda-
mus may be granted, the Supreme Court has articulated
three conditions that must be satisfied:
First, 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. Second, the petitioner
6 VAN ALLEN v. MCDONALD
must satisfy the burden of showing that his right
to issuance of the writ is clear and indisputable.
Third, even if the first two prerequisites have
been met, the issuing court, in the exercise of its
discretion, must be satisfied that the writ is ap-
propriate under the circumstances.
Cheney v. United States Dist. Court for D.C., 542 U.S. 367,
380–81 (2004) (internal quotation marks, citations, and
brackets omitted).
Mr. Van Allen fails to raise any constitutional issue
regarding the CAVC’s denial of his petition for writ of
mandamus. See Appellant’s Br. 1 (checking “no” in re-
sponse to question three). Rather, Mr. Van Allen con-
tends the CAVC’s decision involved the validity or
interpretation of a statute or regulation. Id. He failed,
however, to provide any information beyond checking
“yes” to question two in his informal brief.
Mr. Van Allen further indicated the matter was non-
final, because he was “[s]till awaiting [the Board of Veter-
ans’ Appeals] . . . decision.” Id. at 2 (capitalization omit-
ted). Because that motion remains pending and the
Board of Veterans’ Appeals has not completed its review
of Mr. Van Allen’s claims, his request fails the first ele-
ment under Cheney. Put another way, Mr. Van Allen has
“other adequate means to attain the relief he desires . . . .”
Cheney, 542 U.S. at 380–81 (internal quotation marks and
citations omitted).
Accordingly, we find the CAVC did not abuse its dis-
cretion in denying Mr. Van Allen a writ of mandamus.
Mr. Van Allen’s adequate remedy lies with the Albany,
New York VA Regional Office and the Board of Veterans’
Appeals.
CONCLUSION
Accordingly, the decision of the United States Court of
Appeals for Veterans Claims is
VAN ALLEN v. MCDONALD 7
AFFIRMED
COSTS
Each party shall bear its own costs.