                     NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                     2009-7033

                                 GENE S. GROVES,

                                                          Claimant-Appellant,

                                         v.

                  ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                          Respondent-Appellee.


      Gene S. Groves, of Shafter, Texas, pro se.

       Austin M. Fulk, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent-appellee. With
him on the brief were Jeanne E. Davidson, Director, and Franklin E. White, Jr.,
Assistant Director.

Appealed from: United States Court of Appeals for Veterans Claims

Chief Judge William P. Greene, Jr.
                       NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                       2009-7033

                                   GENE S. GROVES,

                                                 Claimant-Appellant,

                                            v.

                   ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                 Respondent-Appellee.


          Appeal from the United States Court of Appeals for Veterans Claims
                    in 08-2415, Chief Judge William P. Greene, Jr.


                           ___________________________

                              DECIDED: May 7, 2009
                           ___________________________



Before NEWMAN, SCHALL and BRYSON, Circuit Judges.

PER CURIAM.

                                       DECISION

      Gene S. Groves appeals from an order of the United States Court of Appeals for

Veterans Claims (“the Veterans Court”) denying his petition for extraordinary relief in the

nature of a writ of mandamus. We affirm.
                                   BACKGROUND

      Mr. Groves served on active duty in the U.S. military between 1970 and 1971. In

1972, the Veterans Administration, now the Department of Veterans Affairs (“DVA”)

determined that Mr. Groves was entitled to benefits for a tender scar that resulted from

an injury he sustained during service. Mr. Groves later sought additional benefits based

on that injury. In December 2005 the Board of Veterans’ Appeals claims found no clear

and unmistakable error in the disability rating Mr. Groves had received for his scar and

also denied his challenge to the disposition of his claim of post traumatic stress

syndrome. At the same time, the Board remanded a number of other claims by Mr.

Groves to the DVA’s Appeals Management Center for the purpose of securing

additional medical evidence relevant to those claims.      Mr. Groves took two related

appeals to the Veterans Court from the Board’s 2005 decision.

      On April 7 and July 17, 2008, Mr. Groves submitted letters to the Veterans Court

complaining that his remanded claims were “not receiving the expeditious treatment

required.” Mr. Groves noted that the DVA’s explanation for the delay was that the

regional office did not have access to Mr. Groves’ claims file because it was needed for

use in connection with his pending appeal before the Veterans Court. Relying on the

Veterans Court’s decision in Ebert v. Brown, 4 Vet. App. 434 (1993), Mr. Groves argued

that the DVA’s explanation for the delay was inadequate.

      The Veterans Court construed his letters as requesting extraordinary relief in the

nature of a writ of mandamus.     In light of the DVA’s explanation that the delay in

processing the remanded claims was “due to the claims folder being unavailable to the

VA regional office because it was located with the VA General Counsel for litigation




2009-7033                                  2
pending before the Court,” the court held that Mr. Groves “has not demonstrated that

the Secretary is arbitrarily refusing to act” and denied mandamus relief.

                                      DISCUSSION

       We review the denial of a petition for a writ of mandamus by the Veterans Court

for abuse of discretion. Lamb v. Principi, 284 F.3d 1378, 1384 (Fed. Cir. 2002). In

order for mandamus to issue, the petitioner must show a clear and indisputable right to

the writ and must have no other adequate means to obtain the relief to which he is

entitled. See Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380-81

(2004).   The Veterans Court has held that when undue delay is the basis for a

mandamus petition, the petitioner must demonstrate “that the alleged delay is so

extraordinary, given the demands on and resources of the Secretary, that it is

equivalent to an arbitrary refusal by the Secretary to act.” Ribaudo v. Nicholson, 20 Vet.

App. 552, 555 (2007) (en banc).

       1. In its 1993 decision in Ebert v. Brown, 4 Vet. App. 434 (1993), another case

involving delay in processing a veteran’s claims while an appeal was pending before the

court, the Veterans Court noted that the Secretary had offered as an excuse for the

delay the fact that the veteran’s claims file was being used in connection with litigation

before the court. The court rejected that explanation as insufficient. It stated:

       The Court finds the two-year delay inexcusable and the Secretary’s
       reasons for the delay without merit. . . . [T]he Secretary is now on notice
       as to the inexcusability of such conduct. In the future, the Court may
       deem that inexcusable delays, in appropriate cases, meet the prerequisite
       of bad faith necessary to the Court’s imposition of sanctions under its
       inherent authority.

Id. at 437.




2009-7033                                    3
       Several years later, the DVA’s Office of General Counsel (“OGC”) promulgated a

policy in response to the Veterans Court’s expression of concern about delays

attributable to veterans’ claims files being retained by the Office of General Counsel in

connection with ongoing litigation before the court. The Veterans Court had asked the

Secretary “to explain whether separate copies of the claims file could be used in VA

proceedings on claims different from those pending at the Court in order that all

proceedings could move forward concurrently.” Henderson v. Brown, 10 Vet. App. 272,

276-77 (1997) (describing proceedings in Neumann v. Brown, U.S. Vet. App. No. 96-

1726 (Apr. 4, 1997)). The Secretary responded that “effective June 1, 1997, the [DVA

General Counsel’s Office] ‘returns the original claims file to the [DVA regional office] as

soon as possible after the 30-day period for supplementing the ROA [record on appeal]

without leave of Court, pursuant to Rule 11(b), has expired’ and that, if the claims file is

needed at the OGC at the same time it is needed at the RO [DVA regional office], a

copy of the claims file may be used by the RO or the OGC.” Mason v. Gober, U.S. Vet.

App. No. 96-223 (Aug. 13, 1997). The Secretary told the Veterans Court that the new

procedures would include “earlier release of the claims file by the [OGC] and strategic

copying of the claims files by the ROs and the Board for use in remands and motions for

reconsideration.” Perry v. West, 11 Vet. App. 319, 333 (1998). The court explained that

the new procedures were “designed to alleviate the difficulties that arise when an

appellant’s claims file is needed in multiple locations.” Bradley v. West, U.S. Vet. App.

No. 97-910 (Jan. 7, 1998).

       While the DVA’s policy is clear that when a claims file is needed for processing

pending claims the file will be returned to the regional office after the record on appeal




2009-7033                                    4
process has been completed in the Veterans Court appeal, it is less clear what process

is followed in the event of lengthy delays in the appeal before the record on appeal has

been prepared. Although, as noted, the Secretary has represented that a copy of the

claims file could be made “if the claims file is needed at the OGC at the same time it is

needed at the RO,” neither the policy as articulated nor the Veterans Court’s decisions

make clear how the DVA has applied that policy in cases involving lengthy delays in the

early stages of an appeal before the Veterans Court.

      While we assume that the Secretary continues to adhere to the representation

made to the Veterans Court regarding the preparation of a copy of the claims file in

cases of unusual delay when the file is needed by the regional office, we cannot

conclude based on the record before us that the Secretary violated that policy and that

the Veterans Court erred in failing to grant a writ of mandamus. Although Mr. Groves

filed his notice of appeal in 2006, the supplemental record on appeal in this case had

still not been resolved as of the date that the Veterans Court issued the ruling on

mandamus that is at issue in this appeal. While the resulting delay has been lengthy,

we note from the docket sheet that numerous procedural issues have had to be

resolved in the pre-briefing stage of the appeal. We assume that, consistent with the

DVA’s representation to the Veterans Court in 1997, the claims file will be returned to

the regional office when that occurs, and that if there is a significant further delay in

resolving questions regarding the supplemental record on appeal, the Secretary will

prepare a copy of the claims file so that the regional office can address the pending

remand claims. If those procedures are followed, they would appear to satisfy the

Veterans Court’s post-Ebert procedure for accommodating the competing interests in




2009-7033                                  5
compiling a complete record for appeal and allowing the remand proceedings to go

forward with reasonable promptness. Under these circumstances, we hold that the

Veterans Court did not abuse its discretion in holding that Mr. Groves has not shown a

clear and indisputable right to relief by way of mandamus.

      2. Mr. Groves also contends that by “assigning all claims raised by an individual

to the same judge,” the Veterans Court has violated his due process rights. His

argument, however, is based on the assumption that his motions have all been

assigned to the same judge. In fact, multiple judges have considered his various

motions. Moreover, this issue is not properly before this court on appeal, as it was not

the subject of his request for mandamus from the Veterans Court.

      3. Mr. Groves further asserts that the Veterans Court’s failure to require the DVA

to produce evidence that it has not “acted expeditiously” has deprived him of his rights

under the Due Process Clause of the Fifth Amendment to the U.S. Constitution. In fact,

Mr. Groves has access to all of the documents he needs to pursue his claim that the

DVA has not acted quickly enough.

      4. Finally, Mr. Groves complains about the rating he was assigned for his Post

Traumatic Stress Disorder claim.      That issue was not raised in his request for

mandamus and is therefore not properly before this court. Nor is it a proper issue for a

writ of mandamus, as Mr. Groves has recourse to challenge his rating through the

appellate process. See Lamb, 284 F.3d at 1384 (“extraordinary writs cannot be used as

substitutes for appeals, even though hardship may result from delay”) (quoting Bankers

Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953)).




2009-7033                                  6
