Robert Resendez v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT RESENDEZ,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1819
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-4910, Chief Judge Margaret C.
Bartley, Judge Coral Wong Pietsch, Judge Michael P. Al-
len.
______________________
Decided: November 8, 2023
______________________
ROBERT R ESENDEZ, San Antonio, TX, pro se.
MARIANA T ERESA ACEVEDO, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, P ATRICIA M. MCC ARTHY , L.
MISHA P REHEIM .
______________________
Case: 23-1819 Document: 18 Page: 1 Filed: 11/08/2023

-- 1 of 6 --

RESENDEZ v. MCDONOUGH 2
Before L OURIE, MAYER, and STARK, Circuit Judges.
P ER CURIAM .
Robert Resendez 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
reasons discussed below, we affirm.
BACKGROUND
Resendez filed an application with the Department of
Veterans Affairs (“VA”) seeking service connection for
hearing loss, tinnitus, and a lumbar spinal condition.
SAppx* 10–11. On March 13, 2019, a VA Regional Office
(“RO”) issued a rating decision granting Resendez
entitlement to service connection for hearing loss and
tinnitus but denying him service connection for the lumbar
spinal condition. SAppx 14–18. In a letter dated March
18, 2019, the RO provided Resendez with notice of its
rating decision as well as instructions regarding how to
seek review of that decision. SAppx 19–26.
On May 21, 2019, Resendez submitted a notice of
disagreement (“NOD”) challenging the RO’s March 2019
rating decision. SAppx 32–34. He asserted that he was
entitled to a higher rating for his service-connected hearing
loss and tinnitus and that he should have been granted
service connection for his spinal condition. SAppx 33.
Resendez submitted his NOD using a form from the VA’s
legacy claims system rather than a form from the
administrative appeals system established pursuant to the
Veterans Appeals Improvement and Modernization Act of
2017 (“AMA”), Pub. L. No. 115–55, 131 Stat. 1105. See
SAppx 32–34.
* “SAppx” refers to the supplemental appendix filed
with the government’s informal brief.
Case: 23-1819 Document: 18 Page: 2 Filed: 11/08/2023

-- 2 of 6 --

RESENDEZ v. MCDONOUGH 3
On July 2, 2019, the VA notified Resendez that his
NOD had been submitted on an incorrect form, explaining
that the form he had submitted was for the VA’s legacy
system and that he should submit his request for review of
the March 2019 rating decision using the proper form for
the AMA system. SAppx 42–44. Two weeks later,
Resendez submitted another legacy form challenging the
March 2019 rating decision and asserting that he had
never agreed to be part of the AMA appeals system. SAppx
45–47. On August 21, 2020, Resendez submitted another
legacy form alleging that the VA had inappropriately
rejected his challenge to the March 2019 rating decision
and further asserting that the VA had rejected his request
to revise that decision based on clear and unmistakable
error (“CUE”). SAppx 49–55.
On November 3, 2020, a representative from the RO
contacted Resendez by telephone and informed him that he
needed to use the correct AMA form to contest the RO’s
March 2019 rating decision. SAppx 57. The representative
also mailed Resendez the correct AMA form. SAppx 57.
On January 19, 2021, the VA received another legacy
form from Resendez. SAppx 58–63. Two days later, an RO
representative again called Resendez and informed him
that he had submitted an “obsolete” form and that he
needed to use the correct AMA form. SAppx 65. On
January 22, 2021, and May 17, 2021, the RO sent letters to
Resendez reiterating that he needed to use the correct
AMA form to contest the March 2019 rating decision.
SAppx 66–75. The RO included a copy of the correct AMA
form with the May 2021 letter it sent to Resendez. SAppx
69.
In April 2022, Resendez submitted a legacy form
challenging the March 2019 rating decision as well as the
VA’s alleged rejection of his motion to revise that rating
decision on the basis of CUE. SAppx 76–83. On April 18,
2022, the VA again provided instructions to Resendez on
Case: 23-1819 Document: 18 Page: 3 Filed: 11/08/2023

-- 3 of 6 --

RESENDEZ v. MCDONOUGH 4
how to properly challenge a rating decision under the AMA.
SAppx 87–89. In August 2022, Resendez filed a petition for
a writ of mandamus in the Veterans Court, arguing that
the VA had: (1) refused to process his appeal of the RO’s
March 2019 rating decision; (2) declined to adjudicate his
motion to revise the March 2019 rating decision on the
basis of CUE; and (3) “fraudulently” forced him to
participate in the AMA system. SAppx 1 (citation omitted).
The Veterans Court issued an order denying
Resendez’s mandamus petition on November 1, 2022.
SAppx 1–9. Resendez then appealed to this court.
D ISCUSSION
“This court’s authority to review decisions of the
Veterans Court is circumscribed by statute.” Dixon v.
Shinseki, 741 F.3d 1367, 1373 (Fed. Cir. 2014). Absent a
constitutional issue, 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.” 38
U.S.C. § 7292(d)(2); see Dixon, 741 F.3d at 1373. These
jurisdictional limits apply with full force in the context of
an appeal of a Veterans Court decision denying a petition
for a writ of mandamus. See Beasley v. Shinseki, 709 F.3d
1154, 1157–58 (Fed. Cir. 2013).
Mandamus is a “drastic and extraordinary remedy
reserved for really extraordinary causes.” Cheney v. U.S.
Dist. Court for D.C., 542 U.S. 367, 380 (2004) (citation and
internal quotation marks omitted). A court may issue a
writ of mandamus only if three prerequisites are met: (1)
the party seeking issuance of the writ must have no other
adequate means to obtain the relief he desires; (2) the
petitioner must demonstrate a clear and indisputable right
to the writ; and (3) the court, in its discretion, must be
convinced that the circumstances warrant issuance of the
writ. See id. at 380–81; Wolfe v. McDonough, 28 F.4th
1348, 1354 (Fed. Cir. 2022).
Case: 23-1819 Document: 18 Page: 4 Filed: 11/08/2023

-- 4 of 6 --

RESENDEZ v. MCDONOUGH 5
We conclude that the Veterans Court did not abuse its
discretion or commit legal error in denying Resendez’s
petition for a writ of mandamus. See Hargrove v. Shinseki,
629 F.3d 1377, 1378 (Fed. Cir. 2011). We turn first to
Resendez’s argument that he is entitled to a writ of
mandamus because the VA has improperly attempted to
force him to participate in the AMA appeals system.
“Congress enacted the AMA in 2017 to reform the existing
VA administrative appeals system, which was, by all
accounts, ‘broken,’ marked by lengthy delays, and plagued
with a formidable backlog of cases.” Mil.-Veterans
Advocacy v. Sec’y of Veterans Affs., 7 F.4th 1110, 1118 (Fed.
Cir. 2021) (quoting H.R. Rep. No. 115–135, at 5 (2017)). By
its plain terms, the AMA specifies that if a claimant
receives notice of a VA rating decision after February 19,
2019, he must file any challenge to that decision through
the AMA appeals system. See Pub. L. No. 115-55, § 2(x)(1),
131 Stat 1105, 1115 (2017); see also Mattox v. McDonough,
56 F.4th 1369, 1373 (Fed. Cir. 2023). Here, because
Resendez received notice of the RO’s rating decision in
March 2019, he was required to use the AMA appeals
process to seek review of that decision. See 38 C.F.R.
§ 3.2400(a); see also id. § 20.202(a) (explaining that a NOD
“must be properly completed on a form prescribed by the
Secretary”). Thus, as the Veterans Court correctly
determined, Resendez was not entitled to a writ of
mandamus prohibiting the VA from requiring him to use
the AMA system to challenge the RO’s March 2019 rating
decision. See SAppx 4–6.
Resendez further contends that he is entitled to a writ
of mandamus because the VA has improperly failed to
process his claim that the RO’s March 2019 rating decision
contains CUE. Pet. Inf. Reply Br. 2–4, 7. As a preliminary
matter, we note that the Veterans Court made a factual
determination that Resendez had never “submitted a
motion to revise the March 2019 rating decision based on
CUE.” SAppx 8. As noted previously, we lack jurisdiction
Case: 23-1819 Document: 18 Page: 5 Filed: 11/08/2023

-- 5 of 6 --

RESENDEZ v. MCDONOUGH 6
to review factual determinations made by the Veterans
Court.
We note, moreover, that the party seeking a writ of
mandamus must have no other adequate means to obtain
the relief he seeks. See Lamb v. Principi, 284 F.3d 1378,
1384 (Fed. Cir. 2002) (explaining that a writ of mandamus
may not be used as a substitute for an appeal). Because he
presents no evidence showing that he cannot adequately
protect his rights by challenging the RO’s March 2019
rating decision through the VA’s normal appeals process,
Resendez fails to show that the Veterans Court erred in
denying his petition for a writ of mandamus.
On appeal, Resendez appears to allege that he was
denied due process because the Veterans Court did not
grant full panel review of the single judge decision denying
his petition for a writ of mandamus. See Pet. Inf. Reply Br.
5–6; Pet. Inf. Br. 1–2. Because he provides no meaningful
explanation of how the denial of full panel review deprived
him of notice and a fair opportunity to be heard, however,
Resendez fails to show that his due process rights have
been violated. See Cushman v. Shinseki, 576 F.3d 1290,
1296 (Fed. Cir. 2009) (“Due process of law has been
interpreted to include notice and a fair opportunity to be
heard.”). We have considered Resendez’s remaining
arguments but do not find them persuasive.
CONCLUSION
Accordingly, the order of the United States Court of
Appeals for Veterans Claims is affirmed.
AFFIRMED
Case: 23-1819 Document: 18 Page: 6 Filed: 11/08/2023

-- 6 of 6 --