Hubert Babb v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HUBERT BABB,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2024-1182
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 23-6252, Judge Joseph L. Falvey,
Jr.
______________________
Decided: June 7, 2024
______________________
HUBERT B ABB, Lake City, FL, pro se.
ELIZABETH M ARIE D URFEE P ULLIN, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by BRIAN M. BOYNTON, T ARA K. H OGAN,
P ATRICIA M. MC CARTHY .
______________________
Before L OURIE, BRYSON, and REYNA, Circuit Judges.
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BABB v. MCDONOUGH 2
P ER CURIAM .
Hubert Babb, a veteran, appeals from a decision of the
Court of Appeals for Veterans Claims (“the Veterans
Court”), which denied his petition for a writ of mandamus
directed to the Department of Veterans Affairs (“the
DVA”). We dismiss the appeal as falling outside our juris-
diction.
I
Mr. Babb has claims for veterans’ benefits pending be-
fore the DVA. He has filed a series of petitions for manda-
mus in the Veterans Court since 2019, each time seeking
an order directing the DVA to complete the adjudication of
his claims. The Veterans Court has denied each of Mr.
Babb’s petitions, including the petition that gave rise to the
appeal in this case.
The history of Mr. Babb’s claims is a long one. It was
summarized in the decision of the Veterans Court on one of
Mr. Babb’s previous petitions for mandamus filed shortly
before the petition that is the subject of this appeal. See
Babb v. McDonough, No. 23-0632, 2023 WL 3242718 (Vet.
App. May 4, 2023).1
Mr. Babb originally filed a claim in 1989 for a nervous
disorder. The claim was denied, and Mr. Babb did not ap-
peal from the denial. In 2012, he filed an informal claim
for post-traumatic stress disorder (“PTSD”). After ex-
tended proceedings before the DVA, the Board of Veterans’
Appeals in 2019 remanded the PTSD claim and directed
the regional office to schedule a DVA medical examination
to determine the nature of Mr. Babb’s psychological condi-
tion since 1989. In early 2020, the DVA conducted a psy-
chological evaluation, which confirmed that Mr. Babb was
1 In this case, the Veterans Court relied on its deci-
sion on Mr. Babb’s immediately preceding mandamus peti-
tion, noting that in the three months that had passed since
the mandate issued in that case, little had changed.
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BABB v. MCDONOUGH 3
suffering from PTSD and another mental disorder. The re-
gional office then assigned a 100% rating effective as of
2012, when he filed his informal PTSD claim.
In addition to his PTSD claim, Mr. Babb has asserted
claims for bilateral hearing loss, tinnitus, headaches, and
sleep disorder. Because he is incarcerated, Mr. Babb did
not report for the scheduled DVA examination to confirm
those claims. Those claims were denied because Mr. Babb
did not provide any evidence of a diagnosis for any of those
conditions.
In June 2021, Mr. Babb appealed the DVA regional of-
fice’s decisions to the Board of Veterans’ Appeals, contend-
ing that his 100% rating for PTSD should have been made
effective as of 1989 rather than 2012, and that his other
claims should not have been denied. Those appeals are still
pending before the Board.
Since June 2019, Mr. Babb has filed six mandamus pe-
titions in the Veterans Court, all of which have been de-
nied. In response to the petition that immediately
preceded the petition in this case, the court explained in
some detail the reasons it was denying the relief he sought.
As to the effective date of Mr. Babb’s 100% rating for
PTSD, the court ruled that the appeals process, rather than
a petition for mandamus was the proper way to challenge
the 2012 effective date for that claim. As to Mr. Babb’s
claims of tinnitus and hearing loss, the court noted that the
prison where Mr. Babb is being held would not allow the
examination contractor to bring the necessary testing
equipment into the prison. And as to Mr. Babb’s claims of
headaches and sleep disorder, the court explained that the
appeals process was the appropriate means for challenging
the regional office’s conclusion that DVA examinations are
not warranted for those conditions.
With respect to Mr. Babb’s complaint that there had
been unreasonable delay in resolving his claims, the Veter-
ans Court noted that there was progress in processing
Mr. Babb’s claims and that most of the delay appeared to
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BABB v. MCDONOUGH 4
be caused by the DVA’s overburdened system. The delay
in processing his tinnitus and hearing loss claims, accord-
ing to the court, was largely attributable to conflicting in-
formation received by the DVA from the prison authorities
regarding whether outside examiners would be permitted
into the prison to examine Mr. Babb. And the delay in han-
dling Mr. Babb’s headache and sleep disorder claims, the
court concluded, did not amount to complete inaction by the
DVA. Instead, it resulted from the agency’s conclusion that
Mr. Babb was not entitled to medical examinations regard-
ing those claims, an issue that is pending before the Board
of Veterans’ Appeals. Babb v. McDonough, 2023 WL
3242718, at *3–4.
In assessing the period of delay, the court found that
there this was not a case of “complete inaction” on the part
of the DVA in handling Mr. Babb’s claims, that Mr. Babb
had not shown any reason that his claims should take prec-
edence over other pending claims, and that the delay in
processing his claims was not the result of any impropriety
on the agency’s part. In the order from which this appeal
is taken, the court also noted that Mr. Babb is already in
receipt of a 100% rating, and that the monetary amount of
the benefits he is entitled to receive while incarcerated is
capped by law. Supp. App. 2.
II
Under the All Writs Act, 28 U.S.C. § 1651, a petitioner
may seek a writ of mandamus from the Veterans Court.
See Cox v. West, 149 F.3d 1360, 1363–64 (Fed. Cir. 1998)
(holding that the All Writs Act applies to the Veterans
Court); Erspaner v. Derwinski, 1 Vet. App. 3, 6–7 (1990).
However, “[t]he remedy of mandamus is a drastic one, to
be invoked only in extraordinary situations.” Kerr v. U.S.
Dist. Ct., 426 U.S. 394, 402 (1976). For any court to grant
a writ of mandamus, three requirements must be satisfied:
(1) the petitioner “must have no other adequate means to
attain” the desired relief; (2) the petitioner must show that
the right to the relief is “clear and indisputable”; and (3)
exercising its discretion, the issuing court must decide that
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BABB v. MCDONOUGH 5
the remedy “is appropriate under the circum-
stances.” Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380–81
(2004). We review denial of a petition for a writ of manda-
mus by the Veterans Court for an abuse of discretion. See
Hargrove v. Shinseki, 629 F.3d 1377, 1378 (Fed. Cir. 2011).
By statute, a petitioner may seek relief from “unrea-
sonable delay” in DVA proceedings. See 38 U.S.C.
§ 7261(a)(2) (providing that the Veterans Court may “com-
pel action of the Secretary [of Veterans Affairs] unlawfully
withheld or unreasonably delayed”). When assessing a
claim of unreasonable delay by the Secretary, the Veterans
Court must consider the factors articulated in Telecommu-
nications Research & Action Center v. FCC (TRAC), 750
F.2d 70, 80 (D.C. Cir. 1984). See Martin v. O’Rourke, 891
F.3d 1338, 1349 (Fed. Cir. 2018) (holding that the
TRAC factors provide the appropriate framework for ana-
lyzing mandamus petitions based on alleged unreasonable
delay by the DVA).
The TRAC decision sets forth six factors that the Vet-
erans Court must consider in determining whether to issue
a writ of mandamus in a case involving a claim of unrea-
sonable delay. Those factors are:
(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 impropri-
ety lurking behind agency lassitude in order to hold
that agency action is unreasonably delayed.
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BABB v. MCDONOUGH 6
750 F.2d at 80 (cleaned up).
In its decision on Mr. Babb’s immediately prior manda-
mus petition and again in the decision in this case, the Vet-
erans Court applied the pertinent TRAC factors and
concluded that a mandamus petition was not appropriate.
In particular, the court concluded that there were reasons
that the adjudication of Mr. Babb’s claims has taken as
long as it has, and that Mr. Babb has shown no reason that
his claims should be advanced ahead of other pending vet-
erans’ claims. Mr. Babb appealed from the Veterans
Court’s decision. Babb v. McDonough, 2023 WL 3242718,
at *3–4; Supp. App. 2.
III
The government argues that this court lacks jurisdic-
tion to address Mr. Babb’s appeal from the Veterans
Court’s denial of his petition for a writ of mandamus. It is
true that the jurisdiction of this court in appeals from the
Veterans Court is limited, and that we lack jurisdiction to
review “a challenge to a law or regulation as applied to the
facts of a particular case.” 38 U.S.C. § 7292(d)(2).
That principle applies to appeals from decisions of the
Veterans Court denying petitions for mandamus as well as
all other appeals from that court. While we have jurisdic-
tion over appeals from the denial of mandamus petitions
that raise legal issues that would otherwise be within our
jurisdiction, appeals from the denial of mandamus peti-
tions do not fall within our jurisdiction if they do not raise
such a legal issue. See Beasley v. Shinseki, 709 F.3d 1154,
1157 (Fed. Cir. 2013). Under that principle, this case falls
outside our jurisdiction.
Mr. Babb’s appeal is distinctly factual in nature. He
contends that the DVA has unconscionably delayed resolu-
tion of his claims and that the reasons for the delay given
by the Secretary before the Veterans Court are unconvinc-
ing. His claims do not address “the validity of a decision of
the [Veterans Court] on a rule of law or any statute or reg-
ulation . . . or any interpretation thereof . . . that was relied
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BABB v. MCDONOUGH 7
on by the [Veterans Court] in making the decision.” 38
U.S.C. § 7292(a). Rather, as the government contends, his
mandamus petition (and his appeal from its denial) present
only a challenge to a factual determination, or at most a
challenge to a “law or regulation as applied to the facts of
a particular case,” 38 U.S.C. § 7292(d)(2). The appeal is
therefore not within this court’s jurisdiction.
While constitutional questions raised in appeals from
the Veterans Court can bring those cases within this
court’s jurisdiction, that is true only if the claims raise bona
fide constitutional issues, and not claims that are “consti-
tutional in name only.” See In re Bailey, 182 F.3d 860, 867
(Fed. Cir. 1990); Helfer v. West, 174 F.3d 1332, 1335 (Fed.
Cir. 1999).
Mr. Babb states in his brief on appeal that his right to
a writ of mandamus “is established in the 14th amendment
of the U.S. Constitution as ‘equal protection of the law.’”
Br. 2. That claim is clearly “constitutional in name only,”
as neither the equal protection component of the due pro-
cess clause of the Fifth Amendment nor the equal protec-
tion clause of the Fourteenth Amendment even remotely
establishes the right to a writ of mandamus in a case such
as this one. The passing reference to the Constitution is
therefore insufficient to convert this case from one involv-
ing a factual determination to one that this court has stat-
utory jurisdiction to review.
DISMISSED
COSTS
No costs.
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