Gary B. Duncan v. Robert Wilkie, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GARY B. DUNCAN,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2020-2099
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-2116, Judge Michael P. Allen.
______________________
Decided: January 13, 2021
______________________
G ARY B. D UNCAN , Milledgeville, GA, pro se.
RICHARD PAUL SCHROEDER , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by JEFFREY B. CLARK , ROBERT EDWARD K IRSCHMAN ,
JR., LOREN M ISHA PREHEIM.
______________________
Case: 20-2099 Document: 27 Page: 1 Filed: 01/13/2021

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DUNCAN v. WILKIE 2
Before PROST, Chief Judge, CLEVENGER and D YK , Circuit
Judges.
PER C URIAM.
Veteran Gary B. Duncan appeals the denial of his man-
damus petition by the Court of Appeals for Veterans
Claims (“Veterans Court”). Mr. Duncan had asked the Vet-
erans Court to compel the Department of Veterans Affairs
(“VA”) to decide his benefits-overpayment claim. In sup-
port of mandamus, Mr. Duncan argued that the VA had
unreasonably delayed in making its determination. The
Veterans Court found no unreasonable delay and denied
mandamus. During the pendency of this appeal from that
denial, the relevant regional office (“RO”) of the VA decided
part, but not all, of Mr. Duncan’s claim. Although the VA
insists that this partial decision moots Mr. Duncan’s peti-
tion, we are not convinced. For the reasons discussed be-
low, we vacate the Veterans Court’s order denying
mandamus and remand to the Veterans Court for reconsid-
eration of the mandamus petition in light of the RO’s par-
tial determination.
I
This appeal is part of a now ten-year dispute over
whether the VA overpaid Mr. Duncan’s service-connected
disability benefits from 1988 to 2009. The VA says yes, and
further insists that its overpayments were exclusively
Mr. Duncan’s fault—and so it wants them back, to the tune
of nearly twelve thousand dollars. Mr. Duncan insists that
any overpayment was the VA’s mistake and that he
shouldn’t have to repay two decades of disability benefits.
Mr. Duncan served on active duty from 1976 to 1979.
Since discharge, he has received service-connected benefits
at a ten percent disability rating. But Mr. Duncan has also
been incarcerated since December 8, 1987. Under
38 U.S.C. § 5313 and 38 C.F.R. § 3.665, while incarcerated
he is entitled to only half benefits, the reduction of which
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DUNCAN v. WILKIE 3
should have started on February 7, 1988, the sixty-first day
of his incarceration. Nonetheless, the VA paid him full
benefits for over two decades. But in 2009, the VA finally
notified Mr. Duncan that his compensation benefits were
reduced due to his incarceration. A few months later, the
VA clarified that the reduction was retroactive: he now
owed half his paid benefits back, as a debt. Since then, the
VA has been withholding Mr. Duncan’s benefit payments
and applying them toward his supposed balance. For his
part, Mr. Duncan explains (and no factfinder has so far
found to the contrary) that he had continually informed the
VA that he was incarcerated—including by providing nu-
merous changes of address corresponding to various pris-
ons.
Mr. Duncan asked for a waiver of the overpayment
debt; his request was denied in June 2010. That August,
he submitted a notice of disagreement in response.
Mr. Duncan then raised an argument as to whether the
overpayment debt was valid at all. The validity question
was twofold: Mr. Duncan (1) contested the amount of the
debt and (2) argued “administrative error” under 38 U.S.C.
§ 5112(b)(10) and 38 C.F.R. § 3.500(b)(2)—i.e., that the
overpayment was solely the VA’s mistake, as he’d repeat-
edly told the VA he was incarcerated yet they’d paid him in
full anyway. If Mr. Duncan were correct about administra-
tive error, he would not need a waiver: there would be no
debt at all, as any adjustment to his benefits would be pro-
spective only.1
The case went on for years, including at least one trip
to the Veterans Court and several remands by the Board of
Veterans’ Appeals (“Board”) along the way. Eventually, on
1 The effective date of a reduction of award, in the
event of “an erroneous award based solely on administra-
tive error,” is the “date of last payment.” 38 U.S.C.
§ 5112(b)(10); 38 C.F.R. § 3.500.
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DUNCAN v. WILKIE 4
January 9, 2019, the Board issued the remand order rele-
vant to this appeal, directed at the RO:
1. Adjudicate the issue of whether the overpayment
was properly created, to include the amount of debt
owed and the raised matter of sole administrative
error.
2. After the issue regarding whether the overpay-
ment was properly created is resolved to the Vet-
eran’s satisfaction, perfected on appeal, or finally
denied, issue a supplemental statement of the case
(SSOC) that addresses the waiver issue, if appro-
priate (i.e., if creation of the overpayment debt was
valid).
Thus, the RO was to make two determinations about the
debt: first validity (expressly including the administrative-
error question), then waiver.
Over a year later, Mr. Duncan filed with the Veterans
Court a petition for a writ of mandamus, seeking to compel
the VA to comply with the Board’s remand order. The Vet-
erans Court denied Mr. Duncan’s mandamus petition.
Duncan v. Wilkie, No. 20-2116, 2020 WL 1921545
(Vet. App. Apr. 21, 2020). He timely appealed.
II
We turn first to whether a determination the RO made
during this appeal’s pendency mooted Mr. Duncan’s re-
quest for mandamus and, thus, this appeal.
In September 2020, about a month after Mr. Duncan’s
appeal brief was docketed, the RO issued him a letter re-
sponsive to the Board’s remand order. S.A. 8, 10, 16. That
letter, which included a supplemental statement of the
case (“SSOC”), informed Mr. Duncan that the VA had au-
dited his debt (finding the accounting essentially correct
except for a two-dollar adjustment) and maintained its de-
termination that he was not entitled to a waiver.
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DUNCAN v. WILKIE 5
The Secretary suggests that this determination moots
Mr. Duncan’s mandamus petition. Mr. Duncan’s petition
had requested that the RO comply with the Board’s remand
order.2 And the RO has now done so, says the Secretary:
the SSOC explained that the VA “did not change [its] deci-
sion” and that Mr. Duncan’s claim “remains denied.”
S.A. 8. It included “an explanation of the evidence . . . used
to make the decision,” evidence that included a VA memo
“upholding [the] validity of [the] incarceration debt.”
S.A. 12, 16. It explained the basis for denying a waiver.
See S.A. 14. And it described what would come next: a re-
turn to the Board on appeal. See S.A. 8.
Mr. Duncan argues that the RO has not yet made the
required remand determination. He points out that the
RO’s decision makes no mention of an “administrative er-
ror” determination at all, as the Board’s remand order ex-
pressly required, and does not include the “appropriate
written findings regarding the validity of the debt.” Reply
Br. 5, 8–9. He points to evidence and arguments that he
says the RO didn’t consider. And he voices frustration over
whether the VA will ever address the issue—suggesting
that next comes administrative “ping pong,” in which “the
Board again remands the case back to the VA . . . , who
then takes a couple . . . more years to again respond.” Re-
ply Br. 9. In short, Mr. Duncan argues that the direct ap-
peal pathway would perpetuate a pattern of remand and
subsequent evasion by the VA, resulting in yet another
mandamus petition. Reply Br. 9. Indeed, Mr. Duncan sug-
gests that mandamus is necessary to preserve appellate ju-
risdiction, lest the administrative-error issue never be
decided at all and thereby evade review.
2 Mr. Duncan himself describes his petition as ask-
ing that “the Secretary” be required “to carry out the
[Board’s] January 9, 2019 Order.” Appellant’s Br. 4.
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DUNCAN v. WILKIE 6
Mr. Duncan’s frustration is understandable. The re-
mand order instructed the RO to issue its SSOC deciding
his waiver only after “the issue regarding whether the over-
payment was properly created is resolved to the Veteran’s
satisfaction, perfected on appeal, or finally denied.” And
that preliminary question expressly required deciding the
underlying issue of “administrative error.” Yet the RO’s
short SSOC makes no mention of an “administrative error”
determination, nor does the accompanying one-page debt-
validity memorandum. See S.A. 8–16.
What is apparent is that the RO purports to have made
a final remand determination on Mr. Duncan’s claim.3 The
Secretary insists that Mr. Duncan is taking issue with the
substance of that determination—a question better suited
to direct appeal. See Bankers Life & Cas. Co. v. Holland,
346 U.S. 379, 383 (1953) (“[I]t is established that the ex-
traordinary writs [i.e., mandamus] cannot be used as sub-
stitutes for appeals, even though hardship may result from
delay and perhaps unnecessary trial; and whatever may be
done without the writ may not be done with it.” (citations
omitted)).
Mr. Duncan argues that mandamus is warranted be-
cause the direct appeal pathway has caused his case to lan-
guish for ten years and prevented him from perfecting his
appeal. According to Mr. Duncan, the SSOC has exacer-
bated this issue rather than mooting it. See Martin v.
O’Rourke, 891 F.3d 1338, 1343 (Fed. Cir. 2018) (“With re-
spect to mandamus petitions alleging unreasonable de-
lay, . . . ‘[b]ecause the statutory obligation of a Court of
3 The Secretary appears to agree with this charac-
terization. Further, the apparent finality of the RO’s deci-
sion is underscored by the fact that the SSOC notified
Mr. Duncan of his right to respond and noted that if he does
not respond within 30 days, his appeal will be returned to
the Board. S.A. 8.
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DUNCAN v. WILKIE 7
Appeals to review on the merits may be defeated by an
agency that fails to resolve disputes, a Circuit Court may
resolve claims of unreasonable delay in order to protect its
future jurisdiction.’” (alteration in original) (quoting Tele-
comm. Rsch. & Action Ctr. v. FCC, 750 F.2d 70, 76
(D.C. Cir. 1984) (“TRAC”))); FTC v. Dean Foods Co.,
384 U.S. 597, 603 (1966) (noting that the All Writs Act “ex-
tends to the potential jurisdiction of the appellate court
where an appeal is not then pending but may be later per-
fected”).
This case is like Mote v. Wilkie, 976 F.3d 1337, 1341–42
(Fed. Cir. 2020). In Mote, the mandamus petition accused
the VA of unreasonable delay in resolving a claim. After
that mandamus petition was filed, the Board remanded the
case to the RO for more factfinding. Noting that “a case
becomes moot when a claimant receives all [the] requested
relief,” we held that a mere remand was not the relief the
petitioner had requested by writ; rather, by requesting a
“decision,” the petitioner had sought a grant or denial of
benefits. Id. at 1341. Similarly, here Mr. Duncan specifi-
cally requested that the RO expeditiously comply with the
Board’s 2019 remand order, compliance that includes de-
ciding the administrative-error issue. A partial decision
that evades one of the issues is not what Mr. Duncan re-
quested, and we cannot say that his petition is moot.
III
Moving from mootness to the merits of mandamus, we
hold that the RO’s determination while this appeal was
pending, which elides the administrative-error issue, re-
quires the Veterans Court to reconsider the unreasonable-
delay question.
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DUNCAN v. WILKIE 8
Mr. Duncan’s mandamus petition alleged unreasona-
ble delay.4 Further, in evaluating whether an alleged un-
reasonable delay is “so egregious as to justify the
extraordinary writ” of mandamus, the Veterans Court
must apply the six-factor TRAC standard. Mote, 976 F.3d
at 1343, 1356; TRAC, 750 F.2d at 80. Those factors provide
that
(1) the time agencies take to make decisions must
be governed by a “rule of reason”; (2) where Con-
gress 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 expediting delayed ac-
tion on agency activities of a higher or competing
priority; (5) the court should also take into account
the nature and extent of the interests prejudiced by
delay; and (6) the court need not find “any impro-
priety lurking behind agency lassitude” in order to
hold that agency action is unreasonably delayed.
Martin, 891 F.3d at 1344–45.
Although it is apparent to us that the Veterans Court
applied TRAC here, it might be that one or more of these
factors comes out differently when considering the RO’s ap-
parent sidestep of the merits, especially given the lengthy
4 Consistent with Martin, because the Veterans
Court found no unreasonable delay under TRAC, it need
not have separately analyzed the due process argument
premised on that delay. 891 F.3d at 1348–49. Overall, we
see no independent constitutional claim appropriate for re-
view here.
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DUNCAN v. WILKIE 9
history of this case. Indeed, to the extent that the RO’s
remand determination shows that the RO has evaded an-
swering the administrative-error question (and does not in-
tend to answer it, having called its remand decision final),
it undermines the soundness of the Veterans Court’s un-
reasonable-delay evaluation. See Reply Br. 9 (arguing that
the SSOC is “more evidence and a clear demonstration” of
the unreasonable delay).
The Veterans Court did not have the benefit of account-
ing for the RO’s remand determination when it first ruled.
Accordingly, under the circumstances of this particular
case, we vacate the Veterans Court’s decision and remand
for reconsideration of the mandamus petition in light of
that development. See Cox v. West, 149 F.3d 1360, 1365–66
(Fed. Cir. 1998) (remanding to Veterans Court for recon-
sideration of mandamus petition in light of changed cir-
cumstances since denial).
IV
We have considered the parties’ other arguments but
find them unpersuasive.5 For the reasons above, we vacate
and remand to the Veterans Court to reconsider Mr. Dun-
can’s mandamus petition in light of the RO’s intervening
remand determination.
VACATED AND REMANDED
COSTS
Costs to appellant.
5 Mr. Duncan had requested that the government
file a supplemental appendix containing specific docu-
ments from the record. See Order (Nov. 18, 2020), ECF
No. 18; Letter (Dec. 15, 2020), ECF No. 25. We have re-
ceived and considered the supplemental appendix, which
the government filed on December 2, 2020.
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