Case: 19-2440 Document: 25 Page: 1 Filed: 06/11/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DERREL L. THOMAS,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2019-2440
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-2749, Chief Judge Margaret C.
Bartley, Judge William S. Greenberg, Judge Michael P. Al-
len.
______________________
Decided: June 11, 2020
______________________
DERREL L. THOMAS, Brooksville, FL, pro se.
GALINA I. FOMENKOVA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
JOSEPH H. HUNT, MARTIN F. HOCKEY, JR., ROBERT EDWARD
KIRSCHMAN, JR.; AMANDA BLACKMON, Y. KEN LEE, Office of
Case: 19-2440 Document: 25 Page: 2 Filed: 06/11/2020
2 THOMAS v. WILKIE
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before LOURIE, DYK, and CHEN, Circuit Judges.
PER CURIAM.
Derrel L. Thomas appeals from the panel decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) adopting the single-judge order denying
his petition for a writ of mandamus. See Thomas v. Wilkie,
No. 19-2749, 2019 WL 3210103 (Vet. App. July 17, 2019)
(“Decision”). Because we cannot review the issues raised
in this appeal or grant the relief sought in Thomas’s peti-
tion, we dismiss the appeal.
BACKGROUND
In April 2019, Thomas filed a petition for extraordinary
relief in the Veterans Court in connection with claims for
special monthly compensation (“SMC”) that he had previ-
ously filed at the United States Department of Veterans
Affairs (“VA”). For context, we provide the following brief
history of Thomas’s underlying claims for SMC, which were
based on his alleged need of regular aid and attendance
(“A&A”), see 38 U.S.C. § 1114(l), and his alleged house-
bound status, see 38 U.S.C. § 1114(s).
In July 2010, Thomas first filed a claim for SMC based
on A&A, which was twice denied by a regional office (“RO”)
of the VA in rating decisions issued in February 2011 and
March 2012. Thomas appealed the March 2012 rating de-
cision to the Board of Veterans’ Appeals (“Board”), and, in
December 2012, the Board remanded the case to the RO to
issue a Statement of the Case (“SOC”) with express instruc-
tions that “[t]hese claims should be returned to the Board
for further appellate consideration only if the Veteran per-
fects a timely appeal.” Appellee Appx. 59. The RO issued
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THOMAS v. WILKIE 3
the SOC in February 2015, but Thomas never perfected an
appeal.
Separately, the RO granted Thomas SMC based on
housebound status in a rating decision issued in September
2018. On March 5, 2019, Thomas submitted a Notice of
Disagreement (“NOD”) regarding that decision in which he
indicated that he was seeking SMC based on A&A. The RO
advised Thomas that it was treating his NOD as an intent
to file a new claim for SMC based on A&A and requested
that he complete VA Form 21-526EZ (Application for Disa-
bility Compensation and Related Compensation Benefits)
regarding his new claim for SMC based on A&A. Thomas
subsequently completed the application.
On April 21, 2019, Thomas filed at the Veterans Court
a petition seeking extraordinary relief in the form of a writ
of mandamus. Thomas asserted that the VA’s unreasona-
ble delay and denial of benefits violated his constitutional
rights and violated the statutory duties of the Secretary of
Veterans Affairs (the “Secretary”). See Decision, 2019 WL
3210103, at *1; see also Petition for Extraordinary Relief,
Thomas v. Wilkie, No. 19-2749 (Ct. Vet. App. Apr. 21,
2019). Thomas sought an order compelling the Secretary
to grant his claim for SMC based on A&A. Id.
On July 17, 2019, the Veterans Court denied the peti-
tion. The court applied the factors for evaluating a manda-
mus petition based on delay as set forth in Telecomms.
Research & Action Ctr. v. FCC, 750 F.2d 70, 79 (D.C. Cir.
1984) (“TRAC”). The court found that, although the TRAC
factors that focus on a petitioner’s interests weighed in
Thomas’s favor, the first factor (“rule of reason”), second
factor (statutory timelines), and fourth factor (effect of
granting the writ on other VA activities) weighed strongly
against granting the writ. Decision, 2019 WL 3210103,
at *2. Thus, the court concluded that Thomas “failed to
demonstrate that any delay here has been so egregious as
to warrant the issuance of a writ.” Id. at *3.
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4 THOMAS v. WILKIE
Importantly, the Veterans Court assessed the petition
with respect to each of Thomas’s claims for SMC based on
A&A. Regarding the 2010 claim, the court found that:
VA’s actions haven’t been unreasonable, at least in
a manner that the Court can remedy at this point.
There have been periods of delay in the processing
of petitioner’s claim, some of which are of concern
to the Court. For example, the RO’s nearly two-
and-a-half-year delay in complying with the
Board’s directive to issue an SOC is difficult to un-
derstand. Unfortunately, however, those delays are
not something the Court can remedy at this point.
After this delay, appellant did not submit a Sub-
stantive Appeal, so that [March 2012] decision
denying SMC based on A&A is final.
Id. at *2. And regarding Thomas’s 2019 claim, the court
concluded that it had “only been pending since March 2019
and it appears VA is actively processing it.” Id.
In the time since the Veterans Court denied Thomas’s
petition, the Secretary represents that the RO denied
Thomas’s new claim for SMC based on A&A. Appellee Br.
5–6. The Secretary further represents that Thomas ap-
pealed that denial to the Board. Id.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited. Wanless v. Shinseki, 618 F.3d 1333, 1336
(Fed. Cir. 2010). We may review a decision by the Veterans
Court concerning whether to grant a mandamus petition
when it raises a non-frivolous legal question. See Beasley
v. Shinseki, 709 F.3d 1154, 1158 (Fed. Cir. 2013); see also
38 U.S.C. § 7292(a). “In conducting such a review, we do
not interfere with the [Veterans Court’s] role as the final
appellate arbiter of the facts underlying a veteran’s claim
or the application of veterans’ benefits law to the particular
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THOMAS v. WILKIE 5
facts of a veteran’s case.” Beasley, 709 F.3d at 1158; 38
U.S.C. § 7292(d)(2).
Here, Thomas has not identified a non-frivolous legal
question raised by the Veterans Court’s decision. The Vet-
erans Court did not interpret any statutes or regulations.
Rather, the court applied the well-established TRAC fac-
tors to the facts of Thomas’s case and determined that the
facts did not justify the extraordinary remedy of a writ of
mandamus. See Decision, 2019 WL 3210103, at *2. We
have no basis to reverse that decision.
Thomas’s arguments on appeal fail to persuade us oth-
erwise. Thomas focuses entirely on the merits of his claims
for benefits, see Appellant Br. 4–9, and concludes his brief,
not by asking us to compel the Secretary to act, but rather
by asking us to “award [A&A],” id. at 9. To the extent
Thomas seeks to challenge the VA’s decisions on the merits
of his claims for SMC, a mandamus petition is not the ap-
propriate vehicle for such a challenge. See Moses H. Cone
Memorial Hospital v. Mercury Construction Co., 460 U.S.
1, 9 n.6 (1983) (“[A] court of appeals has no occasion to en-
gage in extraordinary review by mandamus in aid of its ju-
risdiction . . . when it can exercise the same review by a
contemporaneous ordinary appeal.”) The Veterans Court’s
decision and the scope of this appeal are limited to the only
issue that Thomas properly raised in his mandamus peti-
tion, namely, the Secretary’s alleged delay in acting on his
claim for SMC based on A&A. On that issue, we may not
review the Veterans Court’s straightforward application of
the TRAC factors to the facts of this case.
We recognize that Thomas has characterized at least
some of his arguments as “due process” violations, see Ap-
pellant Br. 3, 6–7, and that we generally have jurisdiction
to review constitutional issues raised in an appeal, see 38
U.S.C. § 7292(d)(2). However, like his other arguments,
Thomas’s purported due process challenge is merely a chal-
lenge to the RO’s and the Board’s decisions on the merits
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6 THOMAS v. WILKIE
of his claims for SMC. Accordingly, Thomas’s due process
challenge is constitutional in name only and is not review-
able. See Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir.
1999) (“[Appellant’s] characterization of [a] question as
constitutional in nature does not confer upon us jurisdic-
tion that we otherwise lack.”).
Finally, based on the Secretary’s representations as to
the status of Thomas’s 2019 claim for SMC based on A&A,
this appeal appears to be moot. Properly construed,
Thomas’s mandamus petition sought an order compelling
the Secretary to act on his claim for SMC based on A&A.
See Decision, 2019 WL 3210103, at *1. At this point, we
have no ability to grant that remedy with respect to either
of Thomas’s two claims for SMC based on A&A. Regarding
his 2010 claim, as the Veterans Court noted, the March
2012 rating decision is final because Thomas failed to per-
fect an appeal after the RO issued the February 2015 SOC.
See Decision, 2019 WL 3210103, at *2. And regarding his
2019 claim, it appears that the RO has already decided the
claim and thereby taken the action that Thomas seeks to
compel. Thus, even to the extent Thomas has raised any
reviewable issues (which he has not), this appeal must be
dismissed as moot because we cannot grant any relief
sought in his mandamus petition. Calderon v. Moore, 518
U.S. 149, 150 (1996) (“[A]n appeal should therefore be dis-
missed as moot when, by virtue of an intervening event, a
court of appeals cannot grant ‘any effectual relief whatever’
in favor of the appellant . . . .” (quoting Mills v. Green, 159
U.S. 651, 653 (1895))).
CONCLUSION
We have considered Thomas’s remaining arguments,
but we find them unpersuasive. The appeal is dismissed.
DISMISSED
COSTS
No costs.