Filed: Dec. 14, 2020
Latest Update: Dec. 15, 2020
Case: 20-1982 Document: 26 Page: 1 Filed: 12/14/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PAUL WRIGHT,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2020-1982
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 19-5244, Senior Judge Robert N.
Davis.
______________________
Decided: December 14, 2020
______________________
PAUL WRIGHT, Marietta, SC, pro se.
JOSEPH ALAN PIXLEY, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
JEFFREY B. CLARK, ALLISON KIDD-MILLER, ROBERT EDWARD
KIRSCHMAN, JR.; JONATHAN KRISCH, Y. KEN LEE, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
Case: 20-1982 Document: 26 Page: 2 Filed: 12/14/2020
2 WRIGHT v. WILKIE
______________________
Before NEWMAN, LOURIE, and HUGHES, Circuit Judges.
PER CURIAM.
Paul Wright, a veteran of the United States Navy, ap-
peals the decision of the United States Court of Appeals for
Veterans Claims in Wright v. Wilkie, No. 19-5244, 2019 WL
6138462 (Vet. App. Nov. 20, 2019) (Decision). Appellant’s
Br. 3–5. 1 The Veterans Court found that there was an
available alternative means to secure Mr. Wright’s re-
quested relief because his claims were still pending before
the Department of Veterans Affairs and therefore denied
his petition for a writ of mandamus.
Id. Mr. Wright argues
that, in denying his petition, the Board impermissibly ap-
plied the All Writs Act (AWA) and violated his constitu-
tional right of petition under the First Amendment.
Because we have jurisdiction only to review legal questions
appealed from the Veterans Court and because we disagree
with Mr. Wright’s legal arguments, we affirm.
I
Mr. Wright served in the U.S. Navy three times be-
tween April 1974 and July 1984. S.A. 71. In 2015, he filed
a claim with VA for multiple disability benefits, including
a deviated septum (DS), obstructed sleep apnea (OSA), and
gastroesophageal reflux disease (GERD). S.A. 74–91. VA
awarded Mr. Wright service connection for DS with a max-
imum 10 percent rating for that claim, but VA did not reach
a final decision regarding service connection for his other
claims of OSA and GERD because the agency was in the
1 Citations to Mr. Wright’s informal brief and reply
(and the pages and documents included therein) reflect the
pagination applied by this court’s electronic case files sys-
tem, Docket Nos. 2 and 14, respectively.
Case: 20-1982 Document: 26 Page: 3 Filed: 12/14/2020
WRIGHT v. WILKIE 3
process of seeking further medical evaluation of those con-
ditions. S.A. 37–38; S.A. 71–73.
Mr. Wright filed a “petition for extraordinary individ-
ual equitable relief” with the Veterans Court, arguing that
VA had “implicitly” decided his OSA and GERD claims by
deciding his DS claim and that VA was unlawfully with-
holding those benefits. S.A. 11–19. The Veterans Court
construed the petition as a “petition for extraordinary relief
in the nature of a writ of mandamus under 38 U.S.C.
§ 7261(a)(2).” S.A. 20.
The Veterans Court denied the petition. Decision at *2.
The Veterans Court held that it could not issue a writ of
mandamus under the All Writs Act (AWA) unless Mr.
Wright could demonstrate, among other things, “the lack
of adequate alternative means to obtain the desired relief.”
Id. at *1 (citing Cheney v. U.S. Dist. Court,
542 U.S. 367,
380–81 (2004)). Finding “Mr. Wright’s OSA and GERD
claims” to be “still pending with VA,” the Veterans Court
held that he had “alternative means for relief . . . available
to him.”
Id. at *2.
Mr. Wright subsequently appealed to this court.
II
We have limited jurisdiction over appeals from the Vet-
erans Court. We decide “all relevant questions of law, in-
cluding interpreting constitutional and statutory
provisions.” 38 U.S.C. § 7292(d)(1). But except to the extent
that an appeal presents a constitutional issue, we may not
review a challenge to a factual determination or a chal-
lenge to a law or regulation as applied to the facts of a case.
Id. § 7292(d)(2); see Wanless v. Shinseki,
618 F.3d 1333,
1336 (Fed. Cir. 2010). In matters over which we have juris-
diction, we must set aside any interpretation that is “(A)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (B) contrary to constitutional
right, power, privilege, or immunity; (C) in excess of
Case: 20-1982 Document: 26 Page: 4 Filed: 12/14/2020
4 WRIGHT v. WILKIE
statutory jurisdiction, authority, or limitations, or in viola-
tion of a statutory right; or (D) without observance of pro-
cedure required by law.” 38 U.S.C. § 7292(d)(1). We review
the Veterans Court’s legal determinations under a de novo
standard. Prenzler v. Derwinski,
928 F.2d 392, 393
(Fed. Cir. 1991). When a denial of a petition for a writ of
mandamus raises a “non-frivolous legal question,” Beasley
v. Shinseki,
709 F.3d 1154, 1158 (Fed. Cir. 2013), we review
the denial for abuse of discretion. See Hargrove v. Shinseki,
629 F.3d 1377, 1378 (Fed. Cir. 2011); Lamb v. Principi,
284
F.3d 1378, 1384 (Fed. Cir. 2002).
III
Two statutes are at issue in this case, 38 U.S.C.
§ 7261(a)(2) and the AWA, 28 U.S.C. § 1651(a). Mr. Wright
argues that the Veterans Court should have applied
§ 7261(a)(2), without invoking the AWA, to compel action
by the VA Secretary to pay his claims. See Appellant’s Br.
1 (“[T]he AWA simply does not apply.”) The applicability of
the AWA is a legal question over which we have jurisdic-
tion. Because, as explained below, we read the AWA and
§ 7261(a)(2) together, we hold that the Veterans Court’s in-
terpretation of the AWA was proper.
The AWA enables federal courts to “issue all writs nec-
essary or appropriate in aid of their respective jurisdic-
tions.” 28 U.S.C. § 1651(a). Section 7261(a)(2) defines the
scope of review of the Veterans Court as including “com-
pel[ling] action of the Secretary unlawfully withheld or un-
reasonably delayed.” Together, these provisions give the
Veterans Court power to issue writs of mandamus when
the Secretary is unlawfully withholding a veteran’s bene-
fits. See Martin v. O’Rourke, 891 F.3d 1338, 1342–44
(Fed. Cir. 2018) (applying the AWA and § 7261(a)(2) to-
gether to give the Veterans Court the power to issue writs
of mandamus); see also Monk v. Shulkin,
855 F.3d 1312,
1319 (Fed. Cir. 2017) (stating that the Veterans Court can
Case: 20-1982 Document: 26 Page: 5 Filed: 12/14/2020
WRIGHT v. WILKIE 5
“rely on the All Writs Act to aggregate claims in aid of …
jurisdiction” under 38 U.S.C. § 7261(a)(2)).
Mr. Wright cites Pa. Bureau of Corr. v. U.S. Marshals
Serv., 474 U.S. 34, 43 (1985) for the proposition that the
AWA functions only as a gap-filler and does not apply
whenever “a statute specifically addresses the particular
issue at hand.” Appellant’s Br. 1. Mr. Wright contends that
because § 7261(a)(2) partially addresses a situation where
the Secretary is withholding benefits, the AWA cannot ap-
ply as well.
Id. But Pa. Bureau stands for the proposition
that when another statute specifically limits the reach of a
court’s power, the AWA does not circumvent that
limit. 474
U.S. at 43. Cases reading the AWA in conjunction with
§ 7261(a)(2) do not conflict with that principle.
Thus, because the Veterans Court followed our and the
Supreme Court’s precedent in considering the AWA to-
gether with § 7261(a)(2), we affirm.
IV
Because 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,” we lack jurisdic-
tion to consider Mr. Wright’s remaining arguments. 38
U.S.C. § 7292(d)(2).
Mr. Wright argues that, by “refusing to issue a merits
decision,” the Veterans Court “implicitly” held that he does
“not have a fundamental right to petition for redress of
[his] grievances as to the Secretary’s unlawful withholding
of veteran benefits to which [he is] presently entitled,” pur-
suant to the “Petition Clause of the First Amendment.” Ap-
pellant’s Br. 1.
Although framed as a constitutional question, this ar-
gument is really a restatement of the merits of his case be-
fore the Veterans Court. The Veterans Court applied the
AWA to the facts of Mr. Wright’s case by denying
Mr. Wright’s petition because he had adequate alternative
Case: 20-1982 Document: 26 Page: 6 Filed: 12/14/2020
6 WRIGHT v. WILKIE
means to obtain his desired relief. Decision at *3.
Mr. Wright argues that this holding was incorrect because
the Veterans Court incorrectly determined that he had
missed medical examinations necessary to his pending VA
claims. See Appellant’s Reply Br. 11–16. We have no juris-
diction over these questions of fact or application of law to
fact. 38 U.S.C. § 7292(d)(2). Mr. Wright’s argument that he
has been denied constitutional rights reiterates these
points. See Appellant’s Br. 1 (arguing that VA’s “unlawful
withholding” of benefits “implicitly” violates the constitu-
tion). Although we have jurisdiction to consider constitu-
tional questions, appellants must do more than state that
improper application of law to fact in the Veterans Court
implicitly violates the constitution. See Helfer v. West, 174
F.3d 1332, 1335 (Fed. Cir. 1999) (an appellant’s “character-
ization of [a] question as constitutional in nature does not
confer upon us jurisdiction that we otherwise lack”). Be-
cause the Veterans Court decision did not make any deci-
sion regarding the First Amendment, even implicitly, we
have no jurisdiction to consider this argument.
V
In this appeal, the only issue over which we have juris-
diction is whether the AWA applies to Mr. Wright’s petition
for a writ of mandamus. Because we hold that § 7261(a)(2)
must be read in conjunction with the AWA under these cir-
cumstances, we affirm the Veterans Court’s decision that
it does.
AFFIRMED
No costs.
