Case: 23-2200 Document: 24 Page: 1 Filed: 03/12/2024
`
`
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`RODNEY KEITH WRIGHT,
`Claimant-Appellant
`
`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2023-2200
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 23-196, Judge Coral Wong Pietsch.
`______________________
`
`Decided: March 12, 2024
`______________________
`
`RODNEY WRIGHT, Brooklyn, NY, pro se.
`
`
` NATALEE A. ALLENBAUGH, Commercial Litigation
`Branch, Civil Division, United States Department of Jus-
`tice, Washington, DC, for respondent-appellee. Also repre-
`sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.,
`PATRICIA M. MCCARTHY; BRIAN D. GRIFFIN, Office of Gen-
`eral Counsel, United States Department of Veterans Af-
`fairs, Washington, DC.
` ______________________
`
`
`
`
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`RODNEY KEITH WRIGHT,
`Claimant-Appellant
`
`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2023-2200
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 23-196, Judge Coral Wong Pietsch.
`______________________
`
`Decided: March 12, 2024
`______________________
`
`RODNEY WRIGHT, Brooklyn, NY, pro se.
`
`
` NATALEE A. ALLENBAUGH, Commercial Litigation
`Branch, Civil Division, United States Department of Jus-
`tice, Washington, DC, for respondent-appellee. Also repre-
`sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.,
`PATRICIA M. MCCARTHY; BRIAN D. GRIFFIN, Office of Gen-
`eral Counsel, United States Department of Veterans Af-
`fairs, Washington, DC.
` ______________________
`
`
`
`Case: 23-2200 Document: 24 Page: 2 Filed: 03/12/2024
`
`2
`
`WRIGHT v. MCDONOUGH
`
`
`Before MOORE, Chief Judge, CLEVENGER and CHEN,
`Circuit Judges.
`
`PER CURIAM.
`Mr. Rodney Keith Wright appeals an order of the
`United States Court of Appeals for Veterans Claims (Vet-
`erans Court) denying in part and dismissing in part
`Mr. Wright’s petition for extraordinary relief. Wright v.
`McDonough, No. 23-0196, 2023 WL 4175143, at *11 (Vet.
`App. June 26, 2023) (Order). We affirm the Veterans
`Court’s order denying the petition and dismiss the parts of
`Mr. Wright’s appeal over which we do not have jurisdiction.
`BACKGROUND
`Mr. Wright served in the United States Army from
`June 1990 to October 1990 and in the United States Air
`Force from August 2001 to October 2001. Appx. at 15–16.1
`On January 11, 2023, Mr. Wright filed with the Veter-
`ans Court a petition for a writ of mandamus. Order, 2023
`WL 4175143, at *1. As it pertains to this appeal, the peti-
`tion principally argued that the Department of Veterans
`Affairs (VA) committed clear and unmistakable error
`(CUE) in determining his eligibility for Special Monthly
`Compensation (SMC) benefits and alleged that the VA un-
`reasonably delayed acting on an alleged April 2019 CUE
`motion. Id. at *1, *6.
`The Veterans Court found that issuing a writ of man-
`damus was not appropriate, dismissing in part and deny-
`ing in part the petition. Id. at *11. It dismissed the matter
`of whether Mr. Wright was entitled to SMC benefits be-
`cause he failed to exhaust his administrative remedies, id.
`at *6–7, and it denied Mr. Wright’s request to compel VA
`
`“Appx.” refers to the appendix filed concurrently
`1
`with Respondent’s brief.
`
`
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`Case: 23-2200 Document: 24 Page: 3 Filed: 03/12/2024
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`WRIGHT v. MCDONOUGH
`
`3
`
`action on his alleged April 2019 CUE motion because he
`failed to show unreasonable delay under the factors artic-
`ulated in Telecommunications Research and Action Center
`v. Federal Communications Commission, 750 F.2d 70 (D.C.
`Cir. 1984) (TRAC), id. at *9–11.
`Mr. Wright appeals the Veterans Court’s decision. He
`“is solely appealing the [Veterans Court’s] opinion regard-
`ing the [CUE] related to his [SMC] benefits as a matter of
`law and the Appellee’s unreasonable delay in processing
`[his] CUE claim.” Appellant’s Br. at 1.
`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 Court on a rule of
`law or of any statute or regulation . . . or any interpretation
`thereof . . . that was relied on by the Court in making the
`decision.” 38 U.S.C. § 7292(a). We have “jurisdiction to re-
`view the [Veterans Court’s] decision whether to grant a
`mandamus petition that raises a non-frivolous legal ques-
`tion.” Beasley v. Shinseki, 709 F.3d 1154, 1158 (Fed. Cir.
`2013). Although we “may not review the factual merits of
`the veteran’s claim,” “we may determine whether the peti-
`tioner has satisfied the legal standard for issuing the writ.”
`Id. We review the Veterans Court’s denial of a petition for
`a writ of mandamus for abuse of discretion. See Lamb v.
`Principi, 284 F.3d 1378, 1384 (Fed. Cir. 2002); Kerr v. U.S.
`Dist. Ct. for N. Dist. of Cal., 426 U.S. 394, 403 (1976).
`To obtain mandamus, the petitioner must show (1) that
`there are no adequate alternative legal channels through
`which the petitioner may obtain the requested relief,
`(2) that he has a clear and indisputable legal right to that
`relief, and (3) that the grant of mandamus relief is appro-
`priate under the circumstances. See Cheney v. U.S. Dist.
`Ct. for D.C., 542 U.S. 367, 380–81 (2004); Hargrove v.
`Shinseki, 629 F.3d 1377, 1378 (Fed. Cir. 2011).
`
`
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`Case: 23-2200 Document: 24 Page: 4 Filed: 03/12/2024
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`4
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`WRIGHT v. MCDONOUGH
`
`For the SMC-benefits claim, the Veterans Court found
`the writ to be inappropriate because “Mr. Wright has not
`shown that he lacks alternative means to pursue relief.”
`Order, 2023 WL 4175143, at *2; see also id. at *7. The
`proper course of action, in the Veterans Court’s view, would
`be for Mr. Wright to appeal through the Regional Office as
`a “request for a writ is not a substitute for the claims and
`appeals process.” Id. at *6–7. Because Mr. Wright did not
`exhaust his administrative remedies, the Veterans Court
`did not abuse its discretion in dismissing the petition for a
`writ of mandamus. See Hargrove, 629 F.3d at 1378.
`Nor did the Veterans Court abuse its discretion in
`denying the petition based on its finding that Mr. Wright
`had not shown unreasonable delay on his alleged April
`2019 CUE motion. When analyzing petitions based on al-
`leged unreasonable delay by the VA, the Veterans Court is
`guided by the six TRAC factors:
`(1) the time agencies take to make decisions must
`be governed by a “rule of reason”;
`(2) where Congress 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 expedit-
`ing delayed action on agency activities of a higher
`or competing priority;
`(5) the court should also take into account the na-
`ture and extent of the interests prejudiced by delay;
`and
`
`
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`Case: 23-2200 Document: 24 Page: 5 Filed: 03/12/2024
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`WRIGHT v. MCDONOUGH
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`5
`
`(6) the court need not find “any impropriety lurking
`behind agency lassitude” in order to hold that
`agency action is unreasonably delayed.
`Martin v. O’Rourke, 891 F.3d 1338, 1344–45, 1348 (Fed.
`Cir. 2018) (quoting TRAC, 750 F.2d at 79–80).
`Here, the Veterans Court concluded that Mr. Wright
`failed to show unreasonable delay under the TRAC factors
`because his only pending CUE motion was filed in January
`2023. Order, 2023 WL 4175143, at *10.
`Mr. Wright argues that the TRAC factors favor him.
`See Appellant’s Br. 22–29. The gist of his argument is that
`even though he did not file a CUE motion until January
`2023, he called one of the VA’s call centers as early as April
`2019 and thus alerted the VA of a CUE by that date. So
`according to Mr. Wright, April 2019 is the relevant starting
`point, and a five-year delay is unreasonable.
`The Veterans Court, however, found no record of a
`pending CUE claim prior to January 2023 and explained
`that VA regulations dictate how Mr. Wright should have
`proceeded in order to adjudicate a CUE motion that he be-
`lieved to be pending. Order, 2023 WL 4175143, at *6–7.
`Mr. Wright provides no legal authority for his argument
`that calling the VA amounts to the filing of a CUE motion.
`The Veterans Court therefore acted within its discretion in
`finding that January 2023 was the relevant date from
`which to measure the reasonableness of any delay and that
`there was not an unreasonable delay.
`Mr. Wright also raises various arguments character-
`ized as constitutional. However, an “appellant’s ‘character-
`ization of [a] question as constitutional in nature does not
`confer upon us jurisdiction that we otherwise lack.’” Flores
`v. Nicholson, 476 F.3d 1379, 1382 (Fed. Cir. 2007) (quoting
`Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999)).
`Mr. Wright’s allegedly constitutional arguments appear to
`
`
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`Case: 23-2200 Document: 24 Page: 6 Filed: 03/12/2024
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`6
`
`WRIGHT v. MCDONOUGH
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`simply reargue the merits of his case, issues over which we
`do not have jurisdiction. See id.
`CONCLUSION
`We have considered Mr. Wright’s remaining argu-
`ments and find them unpersuasive. We affirm the Veter-
`ans Court’s order as to the writ of mandamus and dismiss
`those issues over which we lack jurisdiction.
`AFFIRMED-IN-PART AND DISMISSED-IN-PART
`COSTS
`
`No costs.
`
`
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