John M. Vuksich v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN M. VUKSICH,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-1049
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 23-3416, Judge Michael P. Allen.
______________________
Decided: May 15, 2024
______________________
J OHN M. V UKSICH , Norfolk, VA, pro se.
T ATE N ATHAN WALKER , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. B OYNTON, MARTIN F. HOCKEY , J R., P ATRICIA M.
MCCARTHY .
______________________
Before D YK, MAYER , and REYNA, Circuit Judges.
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VUKSICH v. MCDONOUGH 2
P ER CURIAM .
John M. Vuksich appeals an order of the United States
Court of Appeals for Veterans Claims (“Veterans Court”)
denying his petition for a writ of mandamus. For the rea-
sons discussed below, we affirm.
I. BACKGROUND
Vuksich petitioned the Veterans Court for a writ of
mandamus in June 2023. He asserted that he had a brain
tumor and that he had “been waiting over two years for [a]
hearing before the” Board of Veterans’ Appeals (“board”).
Appx. 24.* In support of his petition, Vuksich attached a
letter from his physician, Michael Lim, M.D., who stated
that while it was not possible to determine precisely when
Vuksich’s tumor “first manifested,” it was “more likely
than not . . . [that] it was present prior to” the time Vuksich
left active-duty service. Appx. 28.
In his petition, Vuksich asked the Veterans Court for
an order compelling the Secretary of Veterans Affairs “to
provide temporary disability benefits to the maximum ben-
efit possible to all veterans with pending disability claims
beginning two years after the filing of the [Notice of Disa-
greement].” Appx. 7. In Vuksich’s view, the cost to the
government of providing temporary disability benefits to
veterans who suffer unreasonable delay in the processing
of their claims would be “trivial,” while for a veteran the
receipt of such benefits “could be the difference between
eating canned dog food or not getting medical treatment.”
Appx. 17.
On June 23, 2023, the Veterans Court, in a single-judge
order, denied Vuksich’s petition. See Vuksich v.
McDonough, No. 23-3416, 2023 WL 4144980 (Vet. App.
* “Appx.” refers to the appendix to Vuksich’s infor-
mal brief.
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VUKSICH v. MCDONOUGH 3
June 23, 2023) (“Veterans Court Order”). The court deter-
mined that Vuksich had not established an individual right
to a writ of mandamus because while he stated that he had
a brain tumor and that his claim had been pending before
the board for two years, he did “not satisfy the pleading re-
quirements for claimants seeking extraordinary relief.” Id.
at *2. Specifically, Vuksich’s petition provided almost no
information “about the circumstances of [his] appeal before
the [b]oard.” Id. Because Vuksich had not supplied the
necessary factual “context” for his claim of unreasonable
delay, the court concluded that he had not shown that he
had a “clear and indisputable right to the writ” or “why
there [were] inadequate alternative means to obtain the re-
lief [he] sought.” Id. (citations and internal quotation
marks omitted).
The Veterans Court also rejected Vuksich’s request for
an order directing the Secretary to pay temporary disabil-
ity benefits to any claimant who has had a claim pending
with the Department of Veterans Affairs (“VA”) for more
than two years. Id. at *1. The court explained that
Vuksich had not identified any legal authority giving it the
power to issue such an order. Id. Furthermore, according
to the court, “the All Writs Act should generally not be used
to dictate substantive results such as the sweeping rule
[Vuksich] seeks the [c]ourt to impose.” Id. (footnote omit-
ted).
In July 2023, the Veterans Court denied Vuksich’s mo-
tion for reconsideration but granted his motion for a panel
decision. Appx. 57–58. In its panel decision, the Veterans
Court summarily affirmed the June 2023 single-judge or-
der denying Vuksich’s mandamus petition. Appx. 57–58.
Vuksich then filed a timely appeal with this court. We have
jurisdiction under 38 U.S.C. § 7292(c).
II. D ISCUSSION
Our review of decisions from the Veterans Court is cir-
cumscribed by statute. We have jurisdiction to “decide all
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VUKSICH v. MCDONOUGH 4
relevant questions of law, including interpreting constitu-
tional and statutory provisions.” Id. § 7292(d)(1). Except
where a constitutional claim is presented, however, we
“may not review (A) a challenge to a factual determination,
or (B) a challenge to a law or regulation as applied to the
facts of a particular case.” Id. § 7292(d)(2); see Wanless v.
Shinseki, 618 F.3d 1333, 1336 (Fed. Cir. 2010).
Pursuant to the All Writs Act, 28 U.S.C. § 1651(a), “all
courts established by Act of Congress” are authorized to “is-
sue all writs necessary or appropriate in aid of their respec-
tive jurisdictions.” A court may grant a writ of mandamus
only when three conditions are satisfied: (1) the petitioner
must establish a “clear and indisputable” right to issuance
of the writ; (2) the petitioner must have “no other adequate
means to attain” the desired relief; and (3) “even if the first
two prerequisites have been met, the issuing court, in the
exercise of its discretion, must be satisfied that the writ is
appropriate under the circumstances.” Cheney v. U.S. Dist.
Ct. for D.C., 542 U.S. 367, 380–81 (2004) (citations and in-
ternal quotation marks omitted); see Wolfe v. McDonough,
28 F.4th 1348, 1354 (Fed. Cir. 2022).
We turn first to Vuksich’s argument that the Veterans
Court should have entered an order awarding temporary
disability benefits to all veterans who have had claims
pending with the VA for more than two years. Vuksich con-
tends that a veteran acquires a “property interest” when he
files a claim for disability benefits. Appellant’s Inf. Br. 25.
He asserts, moreover, that it is appropriate to award tem-
porary benefits to all veterans who have experienced un-
reasonable delays in the processing of their claims because
“any remedy that calls for accelerated action for the single
veteran by the Secretary results in slower action for every
veteran already ahead in the queue.” Id. at 24.
As Vuksich correctly notes, many veterans are severely
burdened by the seemingly interminable delays they face
in the processing of claims for disability benefits. See, e.g.,
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VUKSICH v. MCDONOUGH 5
Monk v. Wilkie, 978 F.3d 1273, 1278 (Fed. Cir. 2020)
(Reyna, J., additional views) (stating that the long delays
at the VA are “unacceptable” and explaining that veterans
who seek disability benefits can “enter into a process that
takes years, sometimes decades, to complete”). As the Vet-
erans Court correctly determined, however, Vuksich did
not point to any legal authority pursuant to which it could
“instruct [the] VA to pay benefits on a ‘temporary’ basis” to
claimants who have had disability claims pending for more
than two years. Veterans Court Order, 2023 WL 4144980,
at *1.
“The Veterans Court, as an Article I tribunal, is a crea-
ture of statute by definition.” Burris v. Wilkie, 888 F.3d
1352, 1357 (Fed. Cir. 2018). Accordingly, “the court can
only act through an express grant of authority from Con-
gress.” Id.; see also Dixon v. McDonald, 815 F.3d 799, 803
(Fed. Cir. 2016) (“Courts created by statute can have no ju-
risdiction but such as the statute confers.” (citation and in-
ternal quotation marks omitted)). Thus, as we have
previously recognized, “the Veterans Court’s jurisdictional
statute” cannot be “read to allow claimants to obtain, on
equitable grounds, monetary relief that they are not other-
wise eligible to receive under substantive statutory law.”
Burris, 888 F.3d at 1359. Because Vuksich points to no
statute or other source of substantive law which gives the
Veterans Court the authority to issue an order awarding
disability compensation to all veterans with claims that
have been pending before the VA for more than two years,
we affirm the court’s decision to deny Vuksich’s request for
such an order.
Vuksich’s petition for mandamus was also properly de-
nied because he had an adequate, alternative remedy
available by appeal that was not invoked. See Love v.
McDonough, No. 22-2285, 2024 WL 1946597, at *3–5 (Fed.
Cir. May 3, 2024). Like the veterans in Love, Vuksich did
not raise his claim for interim payments before the VA or
the board, and thus had the same alternative remedy
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VUKSICH v. MCDONOUGH 6
available to him as in Love, making mandamus relief una-
vailable.
We turn next to Vuksich’s assertion that the Veterans
Court improperly refused to issue an order compelling the
Secretary to expeditiously process his individual claim for
service-connected disability benefits. On appeal, Vuksich
asserts that he has now been waiting for over three years
for a hearing before the board. See Appellant’s Inf. Reply
Br. 14. We are troubled by this very lengthy delay in the
processing of Vuksich’s claim. We are also disturbed by the
fact that the Secretary, on appeal, has failed to provide this
court with updated information about the current status of
Vuksich’s claim or any explanation as to why, after three
years, he, apparently, has not been afforded a hearing be-
fore the board.
We discern, however, no legal error in the determina-
tion by the Veterans Court that Vuksich failed to submit
evidence sufficient to demonstrate that he was entitled to
a writ of mandamus compelling the VA to expeditiously
process his claim. See Veterans Court Order, 2023 WL
4144980, at *2. To the contrary, the court correctly recog-
nized that the factors set out in Telecommunications Re-
search and Action Center v. Federal Communications
Commission (“TRAC”), 750 F.2d 70, 79–81 (D.C. Cir. 1984),
provide the proper framework for analyzing whether delay
by the VA warrants mandamus relief. Veterans Court Or-
der, 2023 WL 4144980, at *2 (footnote omitted); see also
Martin v. O’Rourke, 891 F.3d 1338, 1344–48 (Fed. Cir.
2018) (concluding that the TRAC standard is the appropri-
ate standard for the Veterans Court to use in evaluating
mandamus petitions alleging unreasonable delay). The
court also correctly recognized that Vuksich was “entitled
to a liberal construction of his submissions” because he was
“proceeding without representation.” Veterans Court Or-
der, 2023 WL 4144980, at *2 (footnote omitted); see Comer
v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009).
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VUKSICH v. MCDONOUGH 7
The court concluded, however, that Vuksich’s petition
told it “next to nothing about the circumstances of [his] ap-
peal before the [b]oard.” Veterans Court Order, 2023 WL
4144980, at *2. Accordingly, the court made the determi-
nation that, as a factual matter, Vuksich’s petition con-
tained insufficient evidence to show that he had a “clear
and indisputable right” to a writ of mandamus or “why
there [were] inadequate alternative means to obtain the re-
lief [he] sought.” Id. (citations and internal quotation
marks omitted). We are without authority to reweigh the
evidence the Veterans Court considered or to “interfere
with [its] role as the final appellate arbiter of the facts un-
derlying a veteran’s claim.” Beasley v. Shinseki, 709 F.3d
1154, 1158 (Fed. Cir. 2013). Thus, to the extent Vuksich
challenges factual determinations made by the Veterans
Court, or its application of settled law to the particular cir-
cumstances of his case, we are without jurisdiction to re-
view such challenges. See id. (explaining that this court
has jurisdiction to review a Veterans Court decision deny-
ing a writ of mandamus only if it presents a “non-frivolous
legal question”). We have considered Vuksich’s remaining
arguments, including arguments regarding alleged viola-
tions of procedural due process, but do not find them per-
suasive.
III. CONCLUSION
Accordingly, the order of the United States Court of Ap-
peals for Veterans Claims is affirmed.
AFFIRMED
COSTS
No costs.
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