`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`VARIETA O. MARTIN MCLEAN,
`Petitioner-Appellant
`
`v.
`
`ROBERT WILKIE, SECRETARY OF VETERANS
`AFFAIRS,
`Respondent-Appellee
`______________________
`
`2019-1508
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 18-4905, Judge Michael P. Allen.
`______________________
`
`Decided: July 22, 2019
`______________________
`
`VARIETA O. MARTIN MCLEAN, Victorville, CA, pro se.
`
`
` ROBERT C. BIGLER, Commercial Litigation Branch,
`Civil Division, United States Department of Justice, Wash-
`ington, DC, for respondent-appellee. Also represented by
`JOSEPH H. HUNT, STEVEN JOHN GILLINGHAM, ROBERT
`EDWARD KIRSCHMAN, JR.; BRIAN D. GRIFFIN, BRYAN
`THOMPSON, Office of General Counsel, United States De-
`partment of Veterans Affairs, Washington, DC.
` ______________________
`
`
`
`2
`
`MCLEAN v. WILKIE
`
`
`Before LOURIE, O’MALLEY, and CHEN, Circuit Judges.
`PER CURIAM.
`Varieta O. Martin McLean appeals from a decision of
`the United States Court of Appeals for Veterans Claims
`(“Veterans Court”) dismissing McLean’s petition for ex-
`traordinary relief in the form of a writ of mandamus.
`McLean v. Wilkie, No. 18-4905, 2018 U.S. App. Vet. Claims
`LEXIS 1511 (Vet. App. Nov. 16, 2018). Because McLean
`challenges only factual findings and the application of law
`to fact, we dismiss for lack of jurisdiction.
`BACKGROUND
`McLean is a veteran of the United States Air Force who
`served on active duty at the March Air Force Base in Cali-
`fornia. After her service, she applied to her Regional Office
`(“RO”) seeking entitlement to service connection for vari-
`ous ailments. Suppl. A. at 29–30. The RO denied her
`claims, and McLean appealed to the Board of Veterans’ Ap-
`peals. In June of 2017, the Board remanded McLean’s case
`back to the RO with instructions to further develop the rec-
`ord and readjudicate the appeal. The Board also directed
`the RO to return the case to the Board for comprehensive
`review of the entire record should the RO again deny any
`of McLean’s claims. Suppl. A. at 49.
`In July of 2018, McLean sent letters to the Board and
`the Veterans Court expressing concerns regarding the de-
`lay in adjudicating her remanded claims. Suppl. A. at 49;
`McLean, 2018 U.S. App. Vet. Claims LEXIS 1511, at * 1.
`The Veterans Court construed her letter as a petition for a
`writ of mandamus, but found that the petition was noncom-
`pliant because it did not “include an appendix containing
`copies of any order or decision or other documents neces-
`sary to understand and support the petition.” McLean,
`2018 U.S. App. Vet. Claims LEXIS 1511, at *1. The Veter-
`ans Court granted McLean twenty-one days to file a
`
`
`
`MCLEAN v. WILKIE
`
`3
`
`compliant corrected petition. Meanwhile, the Board re-
`sponded to McLean’s letter on August 2, 2018, assuring her
`that it had forwarded her correspondence to the RO for di-
`rect reply and that, should the RO transfer the case back
`to the Board, it would adjudicate her appeal promptly.
`Suppl. A. at 49.
`On September 20, 2018, the RO sent a letter to McLean
`notifying her that it had complied with the Board’s instruc-
`tion to further develop the record and enclosing a Supple-
`mental Statement of the Case. Suppl. A. at 15. The RO
`again denied McLean’s claims and stated that the case
`would be returned to the Board within thirty days of the
`RO’s decision. Suppl. A. at 15, 29–30.
`On October 11, 2018, the Veterans Court received an-
`other letter from McLean. Although the letter was again
`noncompliant, the Veterans Court “construe[d it] as a
`timely substitute petition
`for extraordinary relief.”
`McLean, 2018 U.S. App. Vet. Claims LEXIS 1511, at *1. It
`noted that McLean failed to attach necessary supporting
`documents,1 but concluded that there was “enough infor-
`mation” from McLean’s letter to discuss the merits of her
`request. Id. It also accepted McLean’s allegations as true
`and concluded that it did not need a response from the Sec-
`retary to resolve the matter. Id. at *3.
`In a decision dated November 16, 2018, the Veterans
`Court denied McLean’s petition. Although the Veterans
`Court acknowledged its authority to issue extraordinary
`writs pursuant to the All Writs Act, 28 U.S.C. § 1651(a), it
`
`
`1 For example, McLean failed to provide the Veter-
`ans Court with the above-referenced Supplemental State-
`ment of the Case. See Suppl. A. at 12–13. On July 1, 2019,
`we requested that the government provide this document
`in connection with this appeal. The government so supple-
`mented the appendix on July 8, 2019.
`
`
`
`4
`
`MCLEAN v. WILKIE
`
`explained that it is “a ‘drastic’ remedy that the Court will
`invoke only in extraordinary circumstances.” Id. at *2
`(quoting Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (1976)).
`The Veterans Court further explained that three condi-
`tions must be met before it could issue the writ: (1) “the
`petitioner must show a lack of adequate alternative means
`of obtaining the relief sought;” (2) “the petitioner must
`show a clear and indisputable right to the writ;” and (3) the
`court must be convinced that the writ is appropriate under
`the circumstances. Id. (citing Cheney v. U.S. Dist. Court,
`542 U.S. 367, 380–81 (2004)). The Veterans Court then ap-
`plied the factors from Telecommunications Research & Ac-
`tion Center v. FCC (“TRAC”), 750 F.2d 70 (D.C. Cir. 1984),
`which this court has adopted “as the appropriate standard
`for the Veterans Court to use in evaluating mandamus pe-
`titions based on alleged unreasonable delay.” Martin v.
`O’Rourke, 891 F.3d 1338, 1348 (Fed. Cir. 2018).
`Applying the TRAC factors to the facts in McLean’s
`case, the Veterans Court concluded that the delay was not
`“so egregious that it warrants a writ of mandamus.” 2018
`U.S. App. Vet. Claims LEXIS 1511, at *5. The court
`acknowledged that McLean’s “claim was remanded . . . and
`that, on some
`level the . . . delay
`is unreasonable.”
`Id. at *4. But it balanced this finding against the fact that
`the Supplemental Statement of the Case sent in 2018 ap-
`peared to end that delay and the fact that McLean could
`still appeal that decision. Id. Accordingly, the Veterans
`Court dismissed the petition. McLean appeals.
`DISCUSSION
`Our jurisdiction to review Veterans Court decisions is
`limited by statute. Pursuant to 38 U.S.C. § 7292(a), 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 interpretation thereof (other than a determination as
`to a factual matter) that was relied on by the [Veterans]
`Court in making the decision.” Except with respect to
`
`
`
`MCLEAN v. WILKIE
`
`5
`
`constitutional issues, we “may not 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.”
`§ 7292(d)(2).
`This limited jurisdiction extends to our review of the
`Veterans Court’s dismissal of a petition for a writ of man-
`damus. See 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). Specifically, we have jurisdiction “to
`review the [Veterans Court’s] decision whether to grant a
`mandamus petition that raises a non-frivolous legal ques-
`tion,” but cannot “review the factual merits of the veteran’s
`claim.” Beasley, 709 F.3d at 1158. Nor can we interfere
`with the Veterans Court’s “role as the final appellate arbi-
`ter of the facts underlying a veteran’s claim or the applica-
`tion of veterans’ benefits law to the particular facts of a
`veteran’s case.” Id.
`Here, McLean’s appeal presents only issues challeng-
`ing factual determinations and the application of law to
`fact. In her informal brief, McLean states that the Veter-
`ans Court “knowingly made amoral, untrue, [and] unsub-
`stantiated statements.” Appellant’s Informal Br. at 1. This
`is a challenge to the Veterans Court’s factual determina-
`tions. McLean also continues to argue on appeal that the
`delay in resolving her case is unreasonable. This is a chal-
`lenge of the Veterans Court’s application of the factors out-
`lined in TRAC to the facts in this case.2 And, although
`
`2 We note that certain facts recited in McLean’s pe-
`tition, which the Veterans Court accepted as true when
`denying mandamus, were inaccurate. For instance,
`McLean’s petition stated that the Board remanded
`McLean’s case in 2015 to the RO, where it was pending for
`three years before McLean received the Supplemental
`Statement of the Case in 2018. Suppl. A. at 12; 2018 U.S.
`App. Vet. Claims LEXIS 1511, at *5. But, as is clear from
`
`
`
`6
`
`MCLEAN v. WILKIE
`
`McLean states that military records were “interfered with
`and removed . . . which is an amoral, illegal and unconsti-
`tutional offense,” Appellant’s Informal Br. at 5, that state-
`ment alone is insufficient to raise a constitutional
`challenge, especially when no such challenge was raised
`before the Veterans Court. Accordingly, we lack jurisdic-
`tion over McLean’s appeal.
`CONCLUSION
`Because McLean’s appeal presents only challenges to
`factual determinations and the application of law to fact,
`we dismiss for lack of jurisdiction.
`DISMISSED
`COSTS
`
`No costs.
`
`
`the Supplemental Statement of the Case, the Board re-
`manded McLean’s appeal in June of 2017. Suppl. A. at 19.
`The duration of any purported delay between the remand
`and the Supplemental Statement of the Case was thus only
`a little over a year. This further weakens McLean’s claim
`that the delay was unreasonable.
`
`
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