Case: 19-2440    Document: 25     Page: 1   Filed: 06/11/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                 DERREL L. THOMAS,
                  Claimant-Appellant

                             v.

   ROBERT WILKIE, SECRETARY OF VETERANS
                   AFFAIRS,
              Respondent-Appellee
             ______________________

                        2019-2440
                  ______________________

      Appeal from the United States Court of Appeals for
 Veterans Claims in No. 19-2749, Chief Judge Margaret C.
 Bartley, Judge William S. Greenberg, Judge Michael P. Al-
 len.
                  ______________________

                  Decided: June 11, 2020
                  ______________________

    DERREL L. THOMAS, Brooksville, FL, pro se.

     GALINA I. FOMENKOVA, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, for respondent-appellee. Also represented by
 JOSEPH H. HUNT, MARTIN F. HOCKEY, JR., ROBERT EDWARD
 KIRSCHMAN, JR.; AMANDA BLACKMON, Y. KEN LEE, Office of
Case: 19-2440    Document: 25     Page: 2    Filed: 06/11/2020




 2                                          THOMAS   v. WILKIE



 General Counsel, United States Department of Veterans
 Affairs, Washington, DC.
                 ______________________

      Before LOURIE, DYK, and CHEN, Circuit Judges.
 PER CURIAM.
     Derrel L. Thomas appeals from the panel decision of
 the United States Court of Appeals for Veterans Claims
 (“Veterans Court”) adopting the single-judge order denying
 his petition for a writ of mandamus. See Thomas v. Wilkie,
 No. 19-2749, 

(Vet. App. July 17, 2019)
 (“Decision”). Because we cannot review the issues raised
 in this appeal or grant the relief sought in Thomas’s peti-
 tion, we dismiss the appeal.
                        BACKGROUND
     In April 2019, Thomas filed a petition for extraordinary
 relief in the Veterans Court in connection with claims for
 special monthly compensation (“SMC”) that he had previ-
 ously filed at the United States Department of Veterans
 Affairs (“VA”). For context, we provide the following brief
 history of Thomas’s underlying claims for SMC, which were
 based on his alleged need of regular aid and attendance
 (“A&A”), see 38 U.S.C. § 1114(l), and his alleged house-
 bound status, see 38 U.S.C. § 1114(s).
      In July 2010, Thomas first filed a claim for SMC based
 on A&A, which was twice denied by a regional office (“RO”)
 of the VA in rating decisions issued in February 2011 and
 March 2012. Thomas appealed the March 2012 rating de-
 cision to the Board of Veterans’ Appeals (“Board”), and, in
 December 2012, the Board remanded the case to the RO to
 issue a Statement of the Case (“SOC”) with express instruc-
 tions that “[t]hese claims should be returned to the Board
 for further appellate consideration only if the Veteran per-
 fects a timely appeal.” Appellee Appx. 59. The RO issued
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 THOMAS   v. WILKIE                                         3



 the SOC in February 2015, but Thomas never perfected an
 appeal.
      Separately, the RO granted Thomas SMC based on
 housebound status in a rating decision issued in September
 2018. On March 5, 2019, Thomas submitted a Notice of
 Disagreement (“NOD”) regarding that decision in which he
 indicated that he was seeking SMC based on A&A. The RO
 advised Thomas that it was treating his NOD as an intent
 to file a new claim for SMC based on A&A and requested
 that he complete VA Form 21-526EZ (Application for Disa-
 bility Compensation and Related Compensation Benefits)
 regarding his new claim for SMC based on A&A. Thomas
 subsequently completed the application.
     On April 21, 2019, Thomas filed at the Veterans Court
 a petition seeking extraordinary relief in the form of a writ
 of mandamus. Thomas asserted that the VA’s unreasona-
 ble delay and denial of benefits violated his constitutional
 rights and violated the statutory duties of the Secretary of
 Veterans Affairs (the “Secretary”). See Decision, 

, at *1; see also Petition for Extraordinary Relief,
 Thomas v. Wilkie, No. 19-2749 (Ct. Vet. App. Apr. 21,
 2019). Thomas sought an order compelling the Secretary
 to grant his claim for SMC based on A&A.

17, 2019, the Veterans Court denied the peti-
 tion. The court applied the factors for evaluating a manda-
 mus petition based on delay as set forth in Telecomms.
 Research & Action Ctr. v. FCC, 

, 79 (D.C. Cir.
 1984) (“TRAC”). The court found that, although the TRAC
 factors that focus on a petitioner’s interests weighed in
 Thomas’s favor, the first factor (“rule of reason”), second
 factor (statutory timelines), and fourth factor (effect of
 granting the writ on other VA activities) weighed strongly
 against granting the writ. Decision, 

,
 at *2. Thus, the court concluded that Thomas “failed to
 demonstrate that any delay here has been so egregious as
 to warrant the issuance of a writ.”

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 4                                           THOMAS   v. WILKIE



     Importantly, the Veterans Court assessed the petition
 with respect to each of Thomas’s claims for SMC based on
 A&A. Regarding the 2010 claim, the court found that:
     VA’s actions haven’t been unreasonable, at least in
     a manner that the Court can remedy at this point.
     There have been periods of delay in the processing
     of petitioner’s claim, some of which are of concern
     to the Court. For example, the RO’s nearly two-
     and-a-half-year delay in complying with the
     Board’s directive to issue an SOC is difficult to un-
     derstand. Unfortunately, however, those delays are
     not something the Court can remedy at this point.
     After this delay, appellant did not submit a Sub-
     stantive Appeal, so that [March 2012] decision
     denying SMC based on A&A is final.

And regarding Thomas’s 2019 claim, the court
 concluded that it had “only been pending since March 2019
 and it appears VA is actively processing it.”

time since the Veterans Court denied Thomas’s
 petition, the Secretary represents that the RO denied
 Thomas’s new claim for SMC based on A&A. Appellee Br.
 5–6. The Secretary further represents that Thomas ap-
 pealed that denial to the Board.

jurisdiction to review decisions of the Veterans
 Court is limited. Wanless v. Shinseki, 

, 1336
 (Fed. Cir. 2010). We may review a decision by the Veterans
 Court concerning whether to grant a mandamus petition
 when it raises a non-frivolous legal question. See Beasley
 v. Shinseki, 

, 1158 (Fed. Cir. 2013); see also
 38 U.S.C. § 7292(a). “In conducting such a review, we do
 not interfere with the [Veterans 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
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 THOMAS   v. WILKIE                                         5



 facts of a veteran’s case.” 

; 38
 U.S.C. § 7292(d)(2).
     Here, Thomas has not identified a non-frivolous legal
 question raised by the Veterans Court’s decision. The Vet-
 erans Court did not interpret any statutes or regulations.
 Rather, the court applied the well-established TRAC fac-
 tors to the facts of Thomas’s case and determined that the
 facts did not justify the extraordinary remedy of a writ of
 mandamus. See Decision, 

, at *2. We
 have no basis to reverse that decision.
     Thomas’s arguments on appeal fail to persuade us oth-
 erwise. Thomas focuses entirely on the merits of his claims
 for benefits, see Appellant Br. 4–9, and concludes his brief,
 not by asking us to compel the Secretary to act, but rather
 by asking us to “award [A&A],”

To the extent
 Thomas seeks to challenge the VA’s decisions on the merits
 of his claims for SMC, a mandamus petition is not the ap-
 propriate vehicle for such a challenge. See Moses H. Cone
 Memorial Hospital v. Mercury Construction Co., 

, 9 n.6 (1983) (“[A] court of appeals has no occasion to en-
 gage in extraordinary review by mandamus in aid of its ju-
 risdiction . . . when it can exercise the same review by a
 contemporaneous ordinary appeal.”) The Veterans Court’s
 decision and the scope of this appeal are limited to the only
 issue that Thomas properly raised in his mandamus peti-
 tion, namely, the Secretary’s alleged delay in acting on his
 claim for SMC based on A&A. On that issue, we may not
 review the Veterans Court’s straightforward application of
 the TRAC factors to the facts of this case.
     We recognize that Thomas has characterized at least
 some of his arguments as “due process” violations, see Ap-
 pellant Br. 3, 6–7, and that we generally have jurisdiction
 to review constitutional issues raised in an appeal, see 38
 U.S.C. § 7292(d)(2). However, like his other arguments,
 Thomas’s purported due process challenge is merely a chal-
 lenge to the RO’s and the Board’s decisions on the merits
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 6                                             THOMAS   v. WILKIE



 of his claims for SMC. Accordingly, Thomas’s due process
 challenge is constitutional in name only and is not review-
 able. See Helfer v. West, 

, 1335 (Fed. Cir.
 1999) (“[Appellant’s] characterization of [a] question as
 constitutional in nature does not confer upon us jurisdic-
 tion that we otherwise lack.”).
      Finally, based on the Secretary’s representations as to
 the status of Thomas’s 2019 claim for SMC based on A&A,
 this appeal appears to be moot. Properly construed,
 Thomas’s mandamus petition sought an order compelling
 the Secretary to act on his claim for SMC based on A&A.
 See Decision, 

, at *1. At this point, we
 have no ability to grant that remedy with respect to either
 of Thomas’s two claims for SMC based on A&A. Regarding
 his 2010 claim, as the Veterans Court noted, the March
 2012 rating decision is final because Thomas failed to per-
 fect an appeal after the RO issued the February 2015 SOC.
 See Decision, 

, at *2. And regarding his
 2019 claim, it appears that the RO has already decided the
 claim and thereby taken the action that Thomas seeks to
 compel. Thus, even to the extent Thomas has raised any
 reviewable issues (which he has not), this appeal must be
 dismissed as moot because we cannot grant any relief
 sought in his mandamus petition. Calderon v. Moore, 

, 150 (1996) (“[A]n appeal should therefore be dis-
 missed as moot when, by virtue of an intervening event, a
 court of appeals cannot grant ‘any effectual relief whatever’
 in favor of the appellant . . . .” (quoting Mills v. Green, 

, 653 (1895))).
                         CONCLUSION
     We have considered Thomas’s remaining arguments,
 but we find them unpersuasive. The appeal is dismissed.
                         DISMISSED
                             COSTS
     No costs.