Case Information
*2 Before P ROST , Chief Judge, O’M ALLEY , and C HEN , Cir-
cuit Judges.
P ER URIAM .
Eddy Jean Philippeaux seeks review of the October 5, 2016 decision of the Court of Appeals for Veterans Claims (the “Veterans Court”) denying his petition for a writ of mandamus. Philippeaux v. McDonald , No. 16-2616, 2016 WL 5820496 (Vet. App. Oct. 5, 2016). For the following reasons, we affirm the decision of the Veterans Court.
B ACKGROUND
Philippeaux served on active duty in the Navy from
1972 to 1980, and in the Air Force from 1984 to 1985.
Philippeaux v. McDonald
,
Philippeaux appealed certain aspects of these grants to the Board of Veterans’ Appeals (the “Board”), raising six specific issues:
1. Entitlement to service connection for traumat- ic brain injury, to include as secondary to psy- chotic disorder not otherwise specified.
2. Entitlement to an effective date earlier than February 27, 1995, for the grant of service *3 connection for psychotic disorder not otherwise specified.
3. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease with gastritis.
4. Entitlement to an effective date earlier than February 27, 1995, for the grant of service connection for gastroesophageal reflux disease with gastritis.
5. Entitlement to a total disability rating based on individual unemployability (TDIU) since July 1, 2008, based on service connected disa- bilities other than psychotic disorder not oth- erwise specified.
6. Entitlement to TDIU prior to July 1, 2008, based on all service-connected disabilities. The Board remanded to the Regional Office on all
issues, finding that the grants issued had not been “com-
plete grant[s] of the benefits sought on appeal” with
respect to effective date and rating, and that the TDIU
claims were not otherwise mooted. at *2 (citing
Brad-
ley v. Peake
,
Thirty-nine days later, on July 22, 2016, Philippeaux petitioned the Veterans Court for a writ of mandamus. Philippeaux , 2016 WL 5820496, at *1. In his petition, Philippeaux appeared to request that the Veterans Court: (1) compel the Regional Office to comply with the Board’s remand order; (2) compel the Department of Veterans Affairs to process new claims regarding his dependent children, including retroactive compensation for various benefits; (3) compel the Department of Veterans Affairs to provide him a complete copy of his claims file; (4) grant an earlier effective date for TDIU based on all service- connected disabilities; and (5) grant compensation for the death of his mother. Id.
On October 5, 2016, the Veterans Court denied Philippeaux’s petition. With respect to Regional Office compliance, the Veterans Court found that Philippeaux had “not demonstrated that the Secretary has refused to act” or that there had “been unreasonable delay in adjudi- cating his claims,” particularly given the “short time . . . passed since the Board remanded his claims.” at *2. Regarding the new claims concerning his children and mother, the Veterans Court noted that Philippeaux must “file a claim for benefits” below “over which [the] Court would have jurisdiction,” as “a writ is not a substitute for the appeals process.” Id. As for the claims file, the Vet- erans Court determined that the record established that Philippeaux had already received a copy. Id. For those reasons, the Veterans Court found, “Mr. Philippeaux has not evidenced a clear and indisputable right to the writ.”
Philippeaux timely appealed the Veterans Court’s de- cision to this court.
D ISCUSSION
Our jurisdiction over appeals from the Veterans Court
is limited by statute.
See
38 U.S.C. § 7292(d)(1). Absent
a constitutional issue, we review only questions of law
and lack jurisdiction to review factual determinations or
the application of law to the particular facts of an appeal
from the Veterans Court.
See
38 U.S.C. § 7292(d)(2).
“This limited jurisdiction extends to our review of the
Veteran's court dismissal of a petition for a writ of man-
damus.”
Morgan v. Shinseki
,
The Veterans Court has the authority to issue ex-
traordinary writs in aid of its jurisdiction pursuant to the
All Writs Act, 28 U.S.C. § 1651(a).
See Cox v. West
, 149
F.3d 1360, 1363–64 (Fed. Cir. 1998). But “[t]he remedy of
mandamus is a drastic one, to be invoked only in extraor-
*5
dinary situations.”
Kerr v. U.S. Dist. Ct. for N. Dist. of
Cal
., 426 U.S. 394, 402 (1976) (citations omitted). Three
conditions must be met for a court to issue a writ:
(1) there must be a lack of alternative means for review;
(2) there must be a clear and indisputable right to the
writ; and (3) the court must be convinced, given the
circumstances, that issuance of a writ is warranted.
Beasley v. Shinseki
,
On appeal, Philippeaux’s central argument is that “excessive delays in the delivery of due benefits has resulted in irreversible damages [and] injury [and] wrong- ful death of [his] mother.” Appellant Inf. Br. 1. The precise nature of this argument is not clear; Philippeaux indicates that the Veterans Court did not “decide consti- tutional issues,” but simultaneously avers that the delay in benefits “is in violation of due process [and] equal protection.” Id. Regardless, it is due to this allegedly excessive delay, Philippeaux contends, that the Veterans Court ought to have “grant[ed] [a] writ of mandamus.” Id. ; see also Appellant Supp. Br. 17–30, 35.
As his only support for this argument, Philippeaux points to the year of his earliest claim filing—1995—and concludes that there has been a “twenty-two (22) year[] delay in this case in the delivery of all entitled benefits,” a delay “beyond reasons or logic.” Appellant Supp. Br. 30. Otherwise, Philippeaux provides only vague allegations. He states, for example, that “VA Regional Office adjudica- tors failed to review his claim files” and “failed to take any action on his appeal,” though he does not specify which claims or when. at 33. He similarly implies that “the Secretary [has] fail[ed] to act” on his claims or “fail[ed] to provide [him] with information or material critical to the appeal”—again without further elaboration. at 17.
These threadbare assertions fail to demonstrate enti-
tlement to the drastic remedy of a writ of mandamus. It
is well established that “the mere passage of time does not
give rise to a right to mandamus unless the delay is
equivalent to an arbitrary refusal to act.”
Jackson v.
Shinseki
,
Irrespective of the delay issue, Philippeaux appears to separately challenge the Veterans Court’s “fail[ure] to decide [his] tort claims” relating to his mother raised in the petition. Appellant Inf. Br. 1. As the Veterans Court recognized, however, its jurisdiction is strictly limited to the review of decisions by the Board. 38 U.S.C. § 7252. That jurisdiction is not changed when reviewing petitions for writs of mandamus. See Cox v. West , 149 F.3d 1360, 1363 (Fed. Cir. 1998) (“It is well established that the [All Writs Act] does not expand a court’s jurisdiction.”). An examination of the record indicates that Philippeaux raised no such tort claim before the Board; the Veterans Court thus properly refused to consider it for the first time on appeal. See, e.g. , Morris v. Nicholson , 122 F. App’x 473, 475 (Fed. Cir. 2005). *7 ONCLUSION
After full review of the record and careful considera- tion, we find no error in the Veterans Court’s decision to deny Philippeaux’s petition for a writ of mandamus. Therefore, we affirm.
AFFIRMED