Case: 12-7158 Document: 13 Page: 1 Filed: 12/26/2012
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
EARNEST ELLIOTT, JR.,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2012-7158
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 12-888, Judge Mary J. Schoe-
len.
__________________________
Before NEWMAN, PROST, and WALLACH, Circuit Judges.
PER CURIAM.
ORDER
Earnest Elliott, Jr. appeals from an order of the
United States Court of Appeals for Veterans Claims
(Veterans Court) denying his petition for a writ of man-
damus. We summarily affirm.
In March 2012, Mr. Elliot filed a petition for a writ of
mandamus with the Veterans Court alleging that the
Department of Veterans Affairs (DVA) failed to timely
Case: 12-7158 Document: 13 Page: 2 Filed: 12/26/2012
ERNEST ELLIOTT v. SHINSEKI 2
process his pending service-connection claims for urinary
frequency, obesity, dizziness, erectile dysfunction, chronic
lumbosacral strain, right ear hearing loss, bilateral tinni-
tus, and alcohol dependence. He later amended his
petition to include a request to compel the DVA to issue a
statement of the case and adjudicate his hallux valgus
claim that Mr. Elliott asserted had been pending since
April 1998.
Subsequently, a DVA regional office (RO) denied Mr.
Elliott entitlement to service connection for alcohol de-
pendence and urinary frequency, granted him a disability
rating of 10 percent for chronic lumbosacral strain, and
deferred his claims for obesity, erectile dysfunction,
dizziness, bilateral tinnitus and right ear hearing loss for
further development. The RO also found clear and un-
mistakable error in a previous rating decision regarding
Mr. Elliott’s hallux valgus claim, but deferred that claim
to obtain a DVA medical opinion.
In light of the RO’s decision, the Veterans Court de-
nied Mr. Elliott’s petition. With regard to the claims for
alcohol dependence, urinary frequency, and chronic
lumbosacral strain, the Veterans Court noted that the
RO’s decision provided Mr. Elliott the relief he sought in
his petition, and to the extent Mr. Elliott disagreed with
the DVA’s decision, he was “free to submit a Notice of
Disagreement, thus compelling the RO to issue an SOC
and continue the appeals process.” The Veterans Court
further explained that any delay in adjudication of Mr.
Elliott’s obesity, dizziness, erectile dysfunction, right ear
hearing loss, bilateral tinnitus, and bilateral hallux
valgus claims for additional evidence development did not
amount to an arbitrary refusal to act. Moreover, the
Veteran Court explained, Mr. Elliot was “not without
adequate remedy” because he could appeal from any
future adverse ruling.
This appeal followed.
Case: 12-7158 Document: 13 Page: 3 Filed: 12/26/2012
3 ERNEST ELLIOTT v. SHINSEKI
We have jurisdiction over the issue of whether the
Veterans Court properly denies a petition for writ of
mandamus. 28 U.S.C. § 1651(a); Cox v. West, 149 F.3d
1360, 1363–64 (Fed. Cir. 1998). A writ of mandamus is an
extraordinary remedy and should not be issued unless the
petitioner has no other adequate alternative means to
attain the desired relief and petitioner has established a
clear and undisputable right to relief. See Cheney v. U.S.
Dist. Court for D.C., 542 U.S. 367, 380–81 (2004).
The Veterans Court did not abuse its discretion in de-
termining that Mr. Elliott failed to satisfy the exacting
standard for mandamus relief. The delay in processing
his claims in order to obtain further evidence is not un-
reasonable and he has alternative means of relief for his
pending claims because the DVA may grant the claims or,
if they are denied, he can then pursue appellate review of
any final, adverse Board decision. Mr. Elliott’s claims
have either been adjudicated or remanded for further
development by DVA. As such, Mr. Elliott clearly has
adequate alternative means to seek all available relief
with regard to his claims.
Accordingly,
IT IS ORDERED THAT:
(1) The judgment of the Veterans Court is summarily
affirmed.
(2) Each side shall bear its own costs.
FOR THE COURT
/s/ Jan Horbaly
Jan Horbaly
Clerk
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