Tyrues v. Dept. Of Veterans Affairs

467 F. App'x 889

Fed. Cir.

2012

Check Treatment

Docket

Rashid EL MALIK, Petitioner, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent.

No. 2012-7023

United States Court of Appeals, Federal Circuit.

April 10, 2012.

464 Fed.Appx. 889

United States Department of Justice, of Washington, DC, for respondent-appellee. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director. Of counsel on the brief was David J. Barrans, Deputy Assistant General Counsel, Department of Veterans Affairs, of Washington, DC.

Before PROST, MAYER, and WALLACH, Circuit Judges.

PER CURIAM.

Rashid El Malik appeals the order of the United States Court of Appeals for Veterans Claims (“Veterans Court“), denying his petition for a writ of mandamus. El Malik v. Shinseki, 2011 WL 3863292 (Vet.App.2011). He argues that the Department of Veterans Affairs incorrectly denied him an increased rate of special monthly compensation. As this court has already explained—in an appeal brought by Mr. El Malik—“[t]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.” El Malik v. Shinseki, 464 Fed.Appx. 892 (Fed.Cir.2012); see also Lamb v. Principi, 284 F.3d 1378, 1382 (Fed.Cir.2002) (“To obtain mandamus, the petitioner must show (1) that he has a ‘clear and indisputable right’ to the writ and (2) that he has no alternative way to obtain the relief sought.” (citation omitted)). We have also explained—indeed in yet another appeal brought by Mr. El Malik—that “[m]andamus is not a substitute for proper appeal and must be denied when the remedy sought is available after entry of a final ... decision....” In re El Malik, No.2010-M937, 2010 WL 2076990, at *1 (Fed.Cir. May 19, 2010); see also In re El Malik, 322 Fed.Appx. 976 (Fed.Cir.2008) (unpublished order) (converting Mr. El Malik‘s petition for a writ of mandamus to a regular appeal). Here, Mr. El Malik does not offer any persuasive explanation for why his grievance cannot be addressed through a regular appeal. Therefore, we affirm the decision of the Veterans Court denying Mr. El Malik‘s petition for a writ of mandamus.

AFFIRMED.

Larry G. TYRUES, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 2010-7011

United States Court of Appeals, Federal Circuit.

April 12, 2012.

Mark R. Lippman, The Veterans Law Group, La Jolla, CA, Kenneth M. Carpenter, Carpenter, Chartered, Topeka, KS, for Claimant-Appellant.

Martin F. Hockey Jr., Department of Justice, Martie S. Adelman, Michael J. Timinski, Department of Veterans Affairs, Washington, DC, for Respondent-Appellee.

Before RADER, Chief Judge, LINN and DYK, Circuit Judges.

ORDER

RADER, Chief Judge.

The United States Court of Appeals for Veterans Claims (“Veterans Court“) dismissed Larry J. Tyrues‘s appeal from the Board of Veterans Appeals (“Board“) for lack of jurisdiction. Tyrues v. Shinseki, 23 Vet.App. 166, 177 (2009). This Court affirmed, reasoning the Veterans Court correctly interpreted 38 U.S.C. § 7266 to require an appeal within 120 days. The Supreme Court of the United States vacated this court‘s judgment and remanding for further proceedings in light of Henderson v. Shinseki, — U.S. —, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011). See Tyrues v. Shinseki, — U.S. —, 132 S.Ct. 75, 181 L.Ed.2d 2 (2011). Accordingly, this court reinstated the appeal.

In Henderson, the Supreme Court reversed this court‘s decision and concluded that the 120-day deadline for filing an appeal with the Court of Appeals for Veterans Claims does not have jurisdictional consequences. Because the Veterans Court erroneously treated the appeal deadline as jurisdictional, we vacate the Veterans Court‘s judgment and remand for further proceedings to determine whether the non-jurisdictional nature of the 120-day deadline should lead to a different result.

Accordingly,

IT IS ORDERED THAT:

(1) The judgment is vacated and the case is remanded for further proceedings.

(2) Each side shall bear its own costs.

RADER

Chief Judge