Anthony G. Hunt v. Eric K. Shinseki, Secretary of Veterans Affairs

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

ANTHONY G. HUNT,
Claimant-Appellant,
V.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.

2011-7009

Appeal from the United States Court of Appeals for
Veterans Claims in case no. 10-1065, Chief Judge Bruce
Kasold.

## ON MOTION

Before RADER, Chief Judge, NEWMAN and BRYSON, Circuit
Judges.

PER CURIAM.

ORDER

The Secretary of Veterans Affairs moves to summarily
affirm the decision of the United States Court of Appeals
for Veterans Claims denying Anthony G. Hunt's petition

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for a writ of mandamus. Hunt opposes. The Secretary
moves for leave to reply, and replies.

On December 29, 2009, Hunt appealed a Board of
Veterans' Appeals decision that denied Hunt's claims for
vocational rehabilitation benefits to the Court of Appeals
for Veterans Claims. While his appeal was pending, Hunt
filed a petition for a writ of mandamus with that court,
seeking relief from the same Board decision. On April 22,
2010, the Court of Appeals for Veterans Claims denied
Hunt's petition, stating that mandamus was not appro-
priate because Hunt's appeal was pending before the
court. Hunt appealed, seeking review by this court.

The Secretary contends that summary affirmance is
warranted under these circumstances. Summary affir-
mance is appropriate when the position of one party is so
clearly correct as a matter of law that no substantial
question regarding the outcome of the appeal exists.
Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994).
To obtain mandamus, the petitioner must show (1) that
he has a clear and undisputable right to the writ and (2)
that he has no alternative way to obtain the relief sought.
See Kerr v. U.S. Dist. Ct. for N. Dist. Of Cal., 426 U.S.
394, 403 (1976). We agree with the Secretary that Hunt
has clearly failed to meet both of these requirements. The
Court of Appeals for Veterans Claims correctly explained
that Hunt's petition should be denied because he sought
the same relief through the appeal process. To the extent
Hunt also filed his petition because his appeal was pend-
ing three months without a decision, any delay in that
regard clearly does not warrant mandamus. We therefore
grant the Secretary's motion.

Accordingly,

IT IS ORDERED THAT:

(1) The Secretary's motion for leave to file a reply
brief is granted.

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(2) The Secretary's motion for summary affirmance is
granted.

(3) Each side shall bear its own costs.

FOR THE COURT

APR 0 5 2011

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Anthony G. Hunt
Melissa Devine, Esq.
$20

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
APR 05 2011

JAN HORBALY
CLERK