Case: 23-1945 Document: 21 Page: 1 Filed: 04/18/2024
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CYNTHIA A. TORREZ,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1945
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-4907, Judge Scott Laurer.
______________________
Decided: April 18, 2024
______________________
CYNTHIA A. TORREZ, San Antonio, TX, pro se.
MARIANA TERESA ACEVEDO, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M.
MCCARTHY; BRIAN D. GRIFFIN, Y. KEN LEE, ANDREW J.
STEINBERG, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
______________________
Case: 23-1945 Document: 21 Page: 2 Filed: 04/18/2024
2 TORREZ v. MCDONOUGH
Before MOORE, Chief Judge, LOURIE, Circuit Judge, and
ALBRIGHT, District Judge. ∗
PER CURIAM.
Cynthia A. Torrez appeals an order from the Court of
Appeals for Veterans Claims (Veterans Court) denying her
petition for a writ of mandamus. We affirm-in-part and
dismiss-in-part.
BACKGROUND
Ricardo Torrez served on active duty in the United
States Air Force from June 1979 to May 1995. Appx. 30. 1
In January 2011, he filed requests with the Department of
Veterans Affairs (VA) seeking service connection for at
least thirteen disabilities, requesting to reopen previously
denied service connection claims for five disabilities, and
requesting increased ratings for two disabilities. In July
2011, Mr. Torrez passed away. Mrs. Torrez, his surviving
spouse, subsequently sought service connection for Mr.
Torrez’s cause of death. Appx. 43.
In April 2013, the VA regional office (RO) granted ser-
vice connection for two claims and denied the remaining
claims. Mrs. Torrez appealed to the Board of Veterans’ Ap-
peals (Board). The Board remanded the claims to the RO
twice for further development, first in June 2015 and again
in May 2018.
In October 2020, the Board denied the claims. Mrs.
Torrez appealed to the Veterans Court. In April 2022, the
∗ Honorable Alan D Albright, District Judge, United
States District Court for the Western District of Texas, sit-
ting by designation.
1“Appx.” refers to the Appendix attached to Re-
spondent’s Informal Brief.
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TORREZ v. MCDONOUGH 3
Veterans Court affirmed the Board’s denial of some claims
and remanded the remaining claims for further develop-
ment and adjudication. Mrs. Torrez appealed to this court,
and we affirmed the Veterans Court’s decision. Appx. 3;
see also Torrez v. McDonough, No. 2022-1909, 2022 WL
16908625 (Fed. Cir. Nov. 14, 2022).
In August 2022, Mrs. Torrez petitioned the Veterans
Court alleging the Board unreasonably delayed adjudicat-
ing the claims remanded in the court’s April 2022 decision
and seeking extraordinary relief by writ of mandamus.
Appx. 1, 3. The Veterans Court evaluated the merits of
Mrs. Torrez’s mandamus petition and applied the legal
framework from Telecommunications Research & Action
Center v. FCC, 750 F.2d 70, 79–80 (D.C. Cir. 1984) (TRAC),
which outlines six factors for the court to consider when
analyzing mandamus petitions based on alleged unreason-
able delay by the VA. Appx. 3–4; see also Martin v.
O’Rourke, 891 F.3d 1338, 1344–45 (Fed. Cir. 2018). The
court denied the mandamus petition because it found the
VA’s alleged delay in developing and adjudicating Mrs.
Torrez’s claims was not so unreasonable as to warrant a
writ of mandamus. Appx. 5. Mrs. Torrez appeals.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. See 38 U.S.C. § 7292. We may
review “the validity of a decision of the [Veterans] Court on
a rule of law or of any statute or regulation . . . or any in-
terpretation thereof (other than a determination as to a fac-
tual matter) that was relied on by the [Veterans] Court in
making the decision.” 38 U.S.C. § 7292(a). Unless the ap-
peal presents a constitutional issue, we “may not review
(A) a challenge to a factual determination, or (B) a chal-
lenge to a law or regulation as applied to the facts of a par-
ticular case.” 38 U.S.C. § 7292(d)(2). We have jurisdiction
to review the Veterans Court’s rulings on mandamus peti-
tions. See Lamb v. Principi, 284 F.3d 1378, 1381 (Fed. Cir.
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4 TORREZ v. MCDONOUGH
2002). We review a denial of mandamus for abuse of dis-
cretion. Id. at 1384.
When an allegedly unreasonable delay is the basis of a
mandamus petition, the Veterans Court analyzes the peti-
tion’s merits under the framework articulated in TRAC.
See Martin, 891 F.3d at 1344–45 (quoting TRAC, 750 F.2d
at 80). TRAC sets forth six factors to consider:
(1) the time agencies take to make decisions must
be governed by a “rule of reason”; (2) where Con-
gress has provided a timetable or other indication
of the speed with which it expects the agency to
proceed in the enabling statute, that statutory
scheme may supply content for this rule of reason;
(3) delays that might be reasonable in the sphere of
economic regulation are less tolerable when human
health and welfare are at stake; (4) the court
should consider the effect of expediting delayed ac-
tion on agency activities of a higher or competing
priority; (5) the court should also take into account
the nature and extent of the interests prejudiced by
delay; and (6) the court need not find “any impro-
priety lurking behind agency lassitude” in order to
hold that agency action is unreasonably delayed.
Id.
I
The Veterans Court did not commit legal error or abuse
its discretion in denying the mandamus petition. The Vet-
erans Court properly applied the TRAC factors to assess
whether Mrs. Torrez was entitled to a writ compelling the
VA to more expeditiously process her claims seeking ser-
vice connection for several disabilities. Appx. 4–5. It found
the first, second, fourth, and sixth TRAC factors weighed
against issuing a writ; although the third and fifth TRAC
factors favored a writ, those factors did not outweigh the
others. Id.
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TORREZ v. MCDONOUGH 5
Specifically, the Veterans Court found that, although
the nature and extent of Mrs. Torrez’s interest weighed in
favor of issuing a writ (third and fifth TRAC factors), the
VA’s delay was inherent in the adjudication and develop-
ment of veterans’ benefits claims. Id. It explained that
much of the delay resulted from the VA’s compliance with
its legal duty to help Mrs. Torrez obtain the necessary med-
ical records to develop her claims (first TRAC factor); that
Congress did not establish a timeline for agency adjudica-
tion claims (second TRAC factor); that a judicial mandate
forcing the VA to work faster would shift the VA’s resources
from other veterans ahead of Mrs. Torrez in the Board’s
queue system, effectively allowing Mrs. Torrez to cut in line
(fourth TRAC factor); and that there was no reason to think
the VA had acted wrongfully (sixth TRAC factor). Id. The
Veterans Court therefore determined issuance of a writ
was not justified because the VA had not unreasonably de-
layed. Id. at 5.
Mrs. Torrez does not show the Veterans Court abused
its discretion in reaching its conclusion, especially consid-
ering the demanding standard for mandamus. Nor does
she allege any legal error. We may not review the Veterans
Court’s straightforward application of the TRAC factors to
the particular facts of this case unless there is a constitu-
tional claim, see 38 U.S.C. § 7292, and here, there is no con-
stitutional claim.
II
Mrs. Torrez requests relief in the form of her husband’s
disability pension. See Appellant’s Informal Br. at 3. To
the extent Mrs. Torrez’s appeal raises arguments concern-
ing the merits of her underlying service connection claims
for various disabilities, it is outside the scope of our review.
When a veteran or beneficiary petitions for a writ of man-
damus, we “may not review the factual merits” of the un-
derlying claim, “but we may determine whether the
petitioner has satisfied the legal standard for issuing the
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6 TORREZ v. MCDONOUGH
writ.” Beasley v. Shinseki, 709 F.3d 1154, 1158 (Fed. Cir.
2013). In particular, “we do not interfere with the [Veter-
ans 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 facts of a veteran’s case.” Id.;
see also 38 U.S.C. § 7292(d)(2).
To the extent Mrs. Torrez’s request for disability pen-
sion refers to her earlier claims that the Board denied and
the Veterans Court affirmed, Appx. 25–26, we have already
affirmed the Veterans Court’s decision. Appx. 3; see also
Torrez, 2022 WL 16908625, at *4. To the extent Mrs. Tor-
rez’s request for disability pension refers to her earlier
claims that the Veterans Court remanded, Appx. 25, each
of those claims is currently on remand to the Board for fur-
ther adjudication and development. Appx. 3, 4. The Vet-
erans Court has not yet rendered a decision on those
claims, so we lack jurisdiction to address them. See
38 U.S.C. § 7292. Our jurisdiction here is limited to the
propriety of the Veterans Court’s denial of the mandamus
petition. Therefore, we dismiss Mrs. Torrez’s other claims
and requests for relief.
CONCLUSION
For the foregoing reasons, we affirm the Veterans
Court’s denial of mandamus, and we dismiss the appeal as
to other issues.
AFFIRMED IN PART AND DISMISSED IN PART
COSTS
No costs.