Randolph v. McDonough

Court: Court of Appeals for the Federal Circuit
Date filed: 2022-02-09
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Case: 21-2156    Document: 32     Page: 1   Filed: 02/09/2022




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                ROBERT E. RANDOLPH,
                  Claimant-Appellant

                             v.

       DENIS MCDONOUGH, SECRETARY OF
              VETERANS AFFAIRS,
               Respondent-Appellee
              ______________________

                        2021-2156
                  ______________________

     Appeal from the United States Court of Appeals for
 Veterans Claims in No. 20-3333, Judge Coral Wong Pi-
 etsch.
                 ______________________

                Decided: February 9, 2022
                 ______________________

    ROBERT E. RANDOLPH, Baton Rouge, LA, pro se.

     STEPHEN J. SMITH, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, for respondent-appellee. Also represented by
 BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.
 MCCARTHY; AMANDA BLACKMON, Y. KEN LEE, Office of Gen-
 eral Counsel, United States Department of Veterans Af-
 fairs, Washington, DC.
Case: 21-2156    Document: 32     Page: 2   Filed: 02/09/2022




 2                                 RANDOLPH   v. MCDONOUGH



                  ______________________

     Before LOURIE, BRYSON, and CUNNINGHAM, Circuit
                         Judges.
 PER CURIAM.
     Robert E. Randolph appeals from the decision of the
 United States Court of Appeals for Veterans Claims (“the
 Veterans Court”) denying his petition for a writ of manda-
 mus. Randolph v. Wilkie, No. 20-3333, 2020 WL 4280115
 (Vet. App. July 27, 2020) (“Decision”); Randolph v. Wilkie,
 No. 20-3333, 2021 WL 41133 (Vet. App. Jan. 6, 2021);
 SAppx 2–7. 1 For the reasons detailed below, we dismiss
 Randolph’s appeal as moot.
                       BACKGROUND
    Randolph served on active duty in the U.S. Marine
 Corps from March 1981 to December 1984. SAppx 9.
     In January 1985, Randolph filed a claim for disability
 compensation, seeking service connection for reactive air-
 way disease. SAppx 18. In June 1985, the Department of
 Veterans Affairs (“VA”) regional office (“RO”) granted him
 service connection for reactive airway disease and hyper-
 tension. Id.
     In March 1987, Randolph submitted a “Statement in
 Support of Claim” explaining that he had a sinus condition
 and requesting an evaluation to determine whether it was
 ratable. Id. In June 1987, the RO denied Randolph service
 connection for his sinus condition. SAppx 19.
     In March 2006, Randolph requested a higher disability
 rating for his service-connected reactive airway disease
 and hypertension.     Id.   Randolph also submitted a



     1  “SAppx” refers to the supplemental appendix of
 materials accompanying the government’s response brief.
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 RANDOLPH   v. MCDONOUGH                                    3



 statement indicating that he believed he already had a ser-
 vice connection rating for sinusitis. Id. In September 2006,
 the RO responded, explaining that it had denied him ser-
 vice connection for sinusitis in June 1987, that the decision
 was final, and that Randolph must submit new and mate-
 rial evidence to reopen the claim. Id.; SAppx 26.
      In February 2008, Randolph sought to reopen his claim
 for service connection for sinusitis. SAppx 26. In February
 2009, the RO denied his request, finding that he had not
 submitted new and material evidence to justify reopening
 his claim. Id.
     In June 2009, Randolph filed a notice of disagreement,
 requesting revision of the June 1987 rating decision based
 on clear and unmistakable error (“CUE”). Id. That same
 month, Randolph submitted a letter stating that he did not
 remember receiving a copy of the June 1987 rating deci-
 sion. Id.
     In June 2012, the RO issued a Statement of the Case.
 First, it found that Randolph had submitted new and ma-
 terial evidence to reopen the sinusitis claim but denied the
 claim on the merits. SAppx 19–20; SAppx 26–27. Second,
 it determined there was no CUE in the June 1987 rating
 decision. Id.
      Randolph appealed to the Board of Veterans’ Appeals
 (“the Board”). In December 2014, the Board affirmed. It
 determined that there was no CUE in the RO’s June 1987
 rating decision, which denied Randolph service connection
 for sinusitis. SAppx 27.
      Randolph appealed to the Veterans Court. According
 to Randolph, the Board erred in holding (1) that VA had
 properly notified him of its June 1987 rating decision and
 (2) that the June 1987 rating decision was final. SAppx 27.
 Rather than respond to Randolph’s arguments, the Secre-
 tary conceded that the Board’s findings were unsupported.
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 4                                  RANDOLPH   v. MCDONOUGH



 Accordingly, the Secretary recommended that the court re-
 mand the decision for further explanation. SAppx 27–28.
     The Veterans Court agreed with the Secretary and in
 August 2016, it vacated and remanded the Board’s deci-
 sion. The court instructed that, should the Board find the
 June 1987 rating decision to be nonfinal, then “the Board
 must adjudicate it.” SAppx 28–29.
     In December 2017, on remand, the Board again deter-
 mined that the June 1987 rating decision was final. Ac-
 cordingly, it denied Randolph’s motion for revision.
 SAppx 20. The Board acknowledged Randolph’s assertion
 that he never received notification of the June 1987 rating
 decision. Id. However, the Board pointed out that the pre-
 sumption of regularity applied, which holds that, in the ab-
 sence of clear evidence to the contrary, it presumes that
 public officers have properly discharged their official du-
 ties. It further explained that Randolph had not rebutted
 that presumption. Randolph appealed to the Veterans
 Court.
      On February 22, 2019, the Veterans Court reversed the
 Board’s determination that the June 1987 decision was fi-
 nal. SAppx 20–21. According to the court, the Board erred
 in holding that Randolph had not rebutted the presump-
 tion of regularity. Id. It remanded the case to the Board
 for readjudication. SAppx 21.
      On May 9, 2020, while the matter was pending before
 the Board, Randolph petitioned the Veterans Court for a
 writ of mandamus. Decision, 2020 WL 4280115, at *1. He
 specifically requested that the court compel the Secretary
 “to comply with [the Veterans Court’s] order to expedite the
 processing of [his] appeal.” Id.
     Two months after Randolph’s petition, on July 1, 2020,
 the Board decided Randolph’s claim. Id. It determined
 that, because the June 1987 decision was nonfinal, Ran-
 dolph’s CUE request was moot, and his sinusitis claim was
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 RANDOLPH   v. MCDONOUGH                                     5



 still pending and unadjudicated. Id.; see also SAppx 30–
 32. In view of those determinations, the Board remanded
 Randolph’s pending claim to the RO for “consideration of
 any action deemed appropriate.” Decision, 2020 WL
 4280115, at *1
     After the Board’s decision, on July 27, 2020, the Veter-
 ans Court denied Randolph’s petition for a writ of manda-
 mus. Decision, 2020 WL 4280115, at *2. First, the court
 explained that Randolph was not entitled to a writ of man-
 damus because he had “adequate alternative means to seek
 relief.” Id. (citing Cheney v. U.S. Dist. Court, 542 U.S. 367,
 380–81 (2004)). Specifically, according to the court, Ran-
 dolph could appeal the July 1, 2020 Board decision regard-
 ing his CUE claim. Id. at *1. Alternatively, he could seek
 relief from any RO decision on his sinusitis claim. Id. The
 court further emphasized that, should the RO fail to re-
 spond expeditiously to the Board’s referral, then Randolph
 could file a new petition. Id. at *2.
     Second, the Veterans Court determined that any al-
 leged delay did not warrant issuance of a writ. Id. at *1.
 The court explained that, although additional litigation
 was required to correct the two Board decisions, the time
 taken to process Randolph’s claim did not “offend[] the rule
 of reason” or otherwise require “extraordinary interven-
 tion.” Id. at *2 n.3 (citing Telecomms. Rsch & Action Ctr.
 v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984)). On January 6,
 2021, a three-judge panel adopted the single-judge order as
 the decision of the court. Randolph v. Wilkie, No. 20-3333,
 2021 WL 41133, at *1 (Vet. App. Jan. 6, 2021); SAppx 2–3.
     Randolph appealed to this court. As relevant here, af-
 ter Randolph filed his opening brief, on September 29,
 2021, the RO issued a decision concerning Randolph’s si-
 nusitis claim. SAppx 33–39. It granted service connection
 at a zero percent rating with an effective date of March 17,
 1987. SAppx 33–34. Despite the RO’s decision, Randolph
 continued to pursue his appeal to this court.
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 6                                   RANDOLPH   v. MCDONOUGH



                         DISCUSSION
     Our jurisdiction to review decisions of the Veterans
 Court is limited. We may review the validity of a decision
 with respect to a rule of law or interpretation of a statute
 or regulation that was relied upon by the Veterans Court
 in making its decision. 38 U.S.C. § 7292(a). However, ex-
 cept with respect to constitutional issues, we may not re-
 view challenges to factual determinations or challenges to
 the application of a law or regulation to the facts of a case.
 Id. § 7292(d)(2).
     For appeals involving a denial of a petition for a writ of
 mandamus, we have jurisdiction to review a decision of the
 Veterans Court “that raises a non-frivolous legal question.”
 Beasley v. Shinseki, 709 F.3d 1154, 1158 (Fed. Cir. 2013);
 see also Lamb v. Principi, 284 F.3d 1378, 1381–82 (Fed.
 Cir. 2002). Although we possess jurisdiction to “determine
 whether the [veteran] has satisfied the legal standard for
 issuing the writ,” we may “not review the factual merits of
 the veteran’s claim.” Beasley, 709 F.3d at 1158. We review
 the denial of a petition for a writ of mandamus for an abuse
 of discretion. Lamb, 284 F.3d at 1382–1384.
     Randolph asserts that the Veterans Court abused its
 discretion in denying his petition for a writ of mandamus.
 He requests that we require the Veterans Court to expedi-
 tiously “enforce its own remand orders.” Appellant’s Infor-
 mal Br. 3. Specifically, Randolph requests that we instruct
 the Veterans Court to require VA to immediately adjudi-
 cate his claim.
     The government responds that Randolph’s appeal is
 moot. According to the government, Randolph’s request
 was fulfilled when the RO adjudicated his sinusitis claim
 on September 21, 2021. SAppx 33.
      We agree with the government. “If an event occurs
 while a case is pending on appeal that makes it impossible
 for the court to grant any effectual relief [whatsoever] to a
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 RANDOLPH    v. MCDONOUGH                                   7



 prevailing party, the appeal must be dismissed as moot.”
 Nasatka v. Delta Sci. Corp., 58 F.3d 1578, 1580 (Fed. Cir.
 1995) (internal quotations omitted). Such is the case here.
 While Randolph’s appeal was pending, VA issued a rating
 decision granting him service connection for sinusitis.
 SAppx 34. In other words, VA “compli[ed] with [the Veter-
 ans] Court’s order to expedite the processing of [Ran-
 dolph’s] appeal.” Decision, 2020 WL 4280115, at *1.
 Accordingly, Randolph’s challenge is moot. 2
                        CONCLUSION
     We have considered Randolph’s remaining arguments
 and find that they do not affect our conclusion. For the
 foregoing reasons, we dismiss his appeal as moot.
                       DISMISSED
                            COSTS
 No costs.




    2    Our decision that this appeal is moot should not be
 construed as an endorsement of the VA’s speed or lack
 thereof in adjudicating Randolph’s claim.