Shirley M. Isaac v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHIRLEY M. ISAAC,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1755
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-6523, Judge Amanda L. Mere-
dith, Judge Grant Jaquith, Judge Joseph L. Toth.
______________________
Decided: February 5, 2024
______________________
SHIRLEY M. I SAAC, Dallas, TX, pro se.
P ATRICK ANGULO, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, CLAUDIA B URKE, P ATRICIA M.
MCCARTHY .
______________________
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ISAAC v. MCDONOUGH 2
Before CUNNINGHAM , BRYSON, and STARK, Circuit Judges.
P ER CURIAM .
Shirley M. Isaac appeals from an order of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) denying a petition for writ of mandamus and a sub-
sequent order denying full court review. Isaac v.
McDonough, No. 22-6523, 2022 WL 17951386 (Vet. App.
Dec. 27, 2022) (“Petition Order”); S. App. 2 (denial of full
court review). In her mandamus petition, Ms. Isaac asked
the Veterans Court to compel the Department of Veterans
Affairs (“VA”) to act on her November 2021 disagreement
with a June 2021 Board of Veterans’ Appeals (“the Board”)
decision. Petition Order at *1. For the reasons discussed
below, we dismiss the appeal for lack of jurisdiction.
I. BACKGROUND
Ms. Isaac is the surviving spouse of veteran James N.
Isaac. Petition Order at *1. In June 2021, the Board dis-
missed motions to revise, on the basis of clear and unmis-
takable error (“CUE”), two prior VA decisions finding that
the Appellant could not be substituted for her late husband
because no claim remained pending with the VA at the
time of his death. Id. at *1. In July and November 2021,
Ms. Isaac filed two CUE motions expressing her disagree-
ment with the June 2021 decision.1
1 The Veterans Court refers to a November 2021 fil-
ing styled as a “CUE Appeal.” Petition Order at *1. Before
the Veterans Court, the Secretary referred to both a July
2021 CUE motion and an amended December 2021 CUE
motion. Id. It appears that the November 2021 CUE filing
is the same as the amended December 2021 CUE motion.
See Appellee’s Informal Br. 5. We generally refer to the
filings as the July and November 2021 CUE motions.
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ISAAC v. MCDONOUGH 3
On November 3, 2022, Ms. Isaac filed with the Veter-
ans Court a petition for writ of mandamus requesting that
the court compel the VA to act on her November 2021 CUE
motion regarding the June 2021 Board decision. Petition
Order at *1. In the Secretary’s response on December 9,
2022, he apologized for the delay in acknowledging and pro-
cessing Ms. Isaac’s CUE motions. Id. He also attached a
letter from the Board to Ms. Isaac dated December 5, 2022,
“advising her that VA had received her motions and dock-
eted them, and that the Board would consider them in the
order in which they were received.” Id. As to the writ,
“[t]he Secretary argue[d] that VA has taken appropriate ac-
tions on [Ms. Isaac’s] CUE motions and, as such, she has
not demonstrated a clear and indisputable right to a writ
of mandamus she seeks.” Id. at *2 (internal quotation
marks omitted and cleaned up).
On December 27, 2022, the Veterans Court issued a
single-judge order denying the petition. Id. at *3. In this
order, the court considered whether the writ justified the
“drastic” remedy of mandamus. Id. at *2 (quoting Kerr v.
U.S. Dist. Ct., 426 U.S. 394, 402 (1976)). Because the peti-
tioner alleged unreasonable delay by the VA, the court
evaluated her petition under the TRAC factors.2 Id.
2 The TRAC factors refer to the factors discussed in
Telecommunications Research & Action Center v. F.C.C.,
750 F.2d 70, 80 (D.C. Cir. 1984) (“TRAC”). Under the
TRAC factors, “(1) the time agencies take to make decisions
must be governed by a ‘rule of reason;’” (2) Congress “may
supply content for this rule of reason” by providing a time-
table for the agency to act; (3) “delays that might be rea-
sonable 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 de-
layed action on agency activities of a higher or competing
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ISAAC v. MCDONOUGH 4
Although the Veterans Court found the third and fifth
TRAC factors “would generally weigh in favor of” Ms. Isaac,
the court ultimately found that the other factors weighed
against the issuance of a writ. Id. at *3. As a result, the
Veterans Court denied the petition. Id.
On February 8, 2023, a three-judge panel adopted the
December order as “the decision of the Court.” S. App. 3–
4. Ms. Isaac then filed a motion for full court review. See
S. App. 2. In an order dated March 15, 2023, the court also
denied this motion, finding that Ms. Isaac failed to demon-
strate that review was “necessary to secure or maintain
uniformity of the Court’s decisions or to resolve a question
of exceptional importance.” Id. (quoting Vet. App. R. 35(c)).
The court then entered judgment in this case. S. App. 1.
Ms. Isaac timely appeals.
II. D ISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited. Wanless v. Shinseki, 618 F.3d 1333, 1336
(Fed. Cir. 2010). We may review “all relevant questions of
law, including interpreting constitutional and statutory
provisions.” 38 U.S.C. § 7292(d)(1). Unless the appeal pre-
sents a constitutional issue, we “may not review (A) a chal-
lenge to a factual determination, or (B) a challenge to a law
or regulation as applied to the facts of a particular case.”
38 U.S.C. § 7292(d)(2). As we explain below, we are with-
out jurisdiction to address the issues raised by Ms. Isaac’s
appeal.
priority;” (5) “the court should also take into account the
nature and extent of the interests prejudiced by delay;” and
(6) the court does not need to find impropriety to determine
“agency action is ‘unreasonably delayed.’” TRAC, 750 F.2d
at 80. In Martin v. O’Rourke, the Federal Circuit adopted
the TRAC factors to assess mandamus petitions asserting
unreasonable delay. 891 F.3d 1338, 1348 (Fed. Cir. 2018).
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ISAAC v. MCDONOUGH 5
A.
First, we address Ms. Isaac’s appeal as to the December
order denying her mandamus petition. In Beasley v.
Shinseki, we explained that we have “jurisdiction to review
the [Veterans Court]’s decision whether to grant a manda-
mus petition” when the Appellant “raises a non-frivolous
legal question.” 709 F.3d 1154, 1158 (Fed. Cir. 2013). We
may not consider a challenge to a factual determination or
the application of law to the facts of Ms. Isaac’s case. Id.
Notably, we do not discern any non-frivolous legal ques-
tions that would give us jurisdiction to review the denial of
mandamus here.
The authority cited by Ms. Isaac that explicitly ad-
dresses mandamus also does not demonstrate any error in
the underlying order. For example, Ms. Isaac cites Wolfe
v. Wilkie, 32 Vet. App. 1 (2019), rev’d sub nom. Wolfe v.
McDonough, 28 F.4th 1348 (Fed. Cir. 2022). Appellant’s
Informal Br. 2. The petition in Wolfe raised a legal ques-
tion of whether a regulation was contrary to a particular
statutory provision. 32 Vet. App. at 34–35. In Ms. Isaac’s
case, there is no colorable argument that the Veterans
Court’s analysis was contrary to a statute or other author-
ity.
Much of the authority Ms. Isaac cites has no clear rela-
tionship to the denial of her mandamus petition. She cites
a number of regulatory provisions and case law establish-
ing that claimants like her have the ability to seek review
of VA decisions based on CUE. See Appellant’s Informal
Br. 1 (first citing 38 C.F.R. § 3.105(a); and then citing 38
C.F.R. § 20.1403(c)); Appellant’s Informal Reply Br. 3 (cit-
ing George v. McDonough, 142 S. Ct. 1953, 1957 (2022)).
However, the regulations and George do not suggest that
the Veterans Court committed legal error in its analysis or
support that the petition for mandamus raises a non-frivo-
lous legal question.
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ISAAC v. MCDONOUGH 6
Ms. Isaac also cites legal authority supporting the
proposition that the Veterans Court has jurisdiction to re-
view a decision of the Board. See, e.g., Appellant’s Informal
Br. 1 (citing 38 U.S.C. § 7252(a)); id. at 2 (citing In re Cox,
10 Vet. App. 361, 371 (1997), as amended (Sept. 4, 1997),
vacated sub nom. Cox v. West, 149 F.3d 1360 (Fed. Cir.
1998)). But the Veterans Court did not determine that it
lacked jurisdiction to address Ms. Isaac’s petition. Petition
Order at *2–3. Rather, the court determined that the ma-
jority of TRAC factors did not support the issuance of a
writ. Id. at *3.
Ms. Isaac also asserts that the December order con-
flicts with the October 2020 Veterans Court decision in-
volving her CUE claim. See Appellant’s Informal Reply Br.
3 (citing Isaac v. Wilkie, No. 19-8692, 2020 WL 6051167
(Vet. App. Oct. 14, 2020) (“October 2020 Decision”)). In that
decision, the Veterans Court vacated the Board’s decision
because it failed to adequately explain its reasoning and
remanded to the Board with directions to “proceed expedi-
tiously.” October 2020 Decision at *1, 5–6 (citation omit-
ted). The Board responded by issuing a new order denying
Ms. Isaac’s CUE motion in June 2021. S. App. 11; see also
S. App. 13 (discussing October Veterans Court decision).
Ms. Isaac may dispute whether the Board adequately com-
plied with the 2020 decision in its June 2021 order. How-
ever, this 2020 Veterans Court decision does not provide
any basis to challenge the denial of mandamus regarding
her subsequent CUE motion.
Lastly, Ms. Isaac cites the Constitution in her briefing.
Appellant’s Informal Br. 1–2; Appellant’s Informal Reply
Br. 4. However, we lack jurisdiction over a “claim [that] is
constitutional in name only,” like the one raised here.
Helfer v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999). In
sum, because Ms. Isaac does not raise any non-frivolous le-
gal question challenging the denial of mandamus, Beasley,
709 F.3d at 1158, we lack jurisdiction to address her disa-
greement with the December order.
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ISAAC v. MCDONOUGH 7
B.
Ms. Isaac also argues the Veterans Court erred in its
March 2023 order denying her motion for full court review
of the December order. See Appellant’s Informal Br. 1–2;
S. App. 2. Ms. Isaac argues full court review was war-
ranted because the December order “failed to resolve a
question of exceptional importance,” Appellant’s Informal
Br. 2; “is contrary [to] . . . precedent,” id.; and is in conflict
with the October 2020 decision, Appellant’s Informal Reply
Br. 3 (citing October 2020 Decision). See Vet. App. R. 35(c)
(“Ordinarily [motions for full Court review] will not be
granted unless such action is necessary to secure or main-
tain uniformity of the Court’s decisions or to resolve a ques-
tion of exceptional importance.”).
However, Ms. Isaac again does not identify a question
of law over which we have jurisdiction. See 38 U.S.C.
§ 7292(d)(1). She does not challenge the legal standard the
Veterans Court applied or argue that the court erred in its
interpretation of that legal standard. See Appellants’ In-
formal Br. 2 (citing Vet. App. R. 35(c)). Rather, she appears
to argue that the court erred in applying this standard. See
id. We are without jurisdiction to review the application of
this legal standard to the facts of Ms. Isaac’s case. See 38
U.S.C. § 7292(d)(2); Arnesen v. Principi, 300 F.3d 1353,
1360–61 (Fed. Cir. 2002) (finding lack of jurisdiction to re-
view a challenge to the Veterans Court’s denial of full court
review).
III. CONCLUSION
We have considered Ms. Isaac’s remaining arguments
and find that none raises a non-frivolous legal question
over which we can assert jurisdiction. See Beasley, 709
F.3d at 1158. For these reasons, we dismiss Ms. Isaac’s
appeal.
DISMISSED
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ISAAC v. MCDONOUGH 8
COSTS
No costs.
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