Perciavalle v. McDonough

• Decision Date: 28 March 2023
• Docket Number: 23-1032
• Parties: James J. Perciavalle, Petitioner, v. Denis McDonough, Secretary of Veterans Affairs, Respondent
• Court: United States Court of Appeals For Veterans Claims

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James J. Perciavalle, Petitioner, v. Denis McDonough, Secretary of Veterans Affairs, Respondent

No. 23-1032

United States Court of Appeals For Veterans Claims

March 28, 2023

Note: Pursuant to U.S. Vet.App. R. 30(a), this action may not be cited as precedent.

James J. Perciavalle VA General Counsel

BEFORE LAURER, JUDGE.

ORDER

SCOTT J. LAURER Judge

On February 22, 2023, self-represented veteran James J. Perciavalle petitioned the Court for extraordinary relief in the nature of a writ of mandamus. He requests that "the Court [] issue a writ of mandamus compelling the Secretary to provide Higher Level Review [(HLR)], including an informal conference, and proper notification to VAG^[1] regarding any clothing-allowance related matters."^[2] Petitioner alleges unreasonable delay, states that he lacks any other alternative means, and asks the Court to use its authority under the All Writs Act (AWA).^[3]

Petitioner made this exact same request on October 17, 2022, which the Court denied on January 11, 2023.^[4]

Under the AWA, this Court may issue extraordinary writs in aid of its jurisdiction.^[5] The AWA, however, "'is not an independent basis of jurisdiction.'" ^[6] Granting a writ is a drastic remedy and is warranted only in extraordinary situations.^[7] For this Court to issue a writ, three conditions are required: (1) Petitioner must show a lack of adequate alternative means to obtain the desired relief, thus ensuring that the writ isn't used to replace the appeals process; (2) petitioner must prove a clear and indisputable right to the writ; and (3) the Court must be convinced, given the circumstances, that the writ is warranted.^[8] The burden of showing entitlement to a writ of mandamus rests with the petitioner.^[9]

Petitioner asks the Court to order VA to provide an HLR. Since an HLR can lead to an appeal to the Board of Veterans' Appeals (Board) and, if necessary, an appeal to this Court, the Court finds that it has jurisdiction over the request for a writ.^[10]

When a petitioner alleges that extraordinary relief is necessary because VA has unreasonably delayed processing the claim or appeal, the Court relies on the "TRAC factors." ^[11]But here, reviewing the particulars of the alleged delay under the TRAC factors is unnecessary.^[12] First, petitioner hasn't proved what's necessary-that the TRAC factors weigh in his favor.^[13] Thus, petitioner's request for a writ is underdeveloped.^[14] And petitioner fails to convince the Court that the delay is so extraordinary that it warrants a writ.^[15]

Next, petitioner also doesn't establish that he meets the conditions for a writ.^[16] Petitioner fails to prove that he's entitled to an HLR and thus fails to show that he has an indisputable right to the relief sought.^[17] Petitioner concedes that "there is no procedure in place in which they can seek [HLR] or an informal conference regarding a clothing allowance ...."^[18] And he reiterates that VA "has no procedure in place for the veteran, or veterans, to seek [HLR] or an informal conference."^[19] Petitioner essentially admits that he's asking the Court to compel the Secretary to do something he isn't obligated to do.^[20] Thus, petitioner fails to prove that he has a clear and indisputable right to a writ. While the Court may issue a writ to ensure that the Secretary abides by his own policies and procedures, the Court can't issue a writ to substitute the Court's policy judgment for that of the Secretary or Congress.^[21]

Petitioner's filing of duplicative, repetitive petitions with this Court in such a short period is an abuse of judicial resources. Time spent ruling on duplicative petitions is time the Court could otherwise dedicate to resolving appeals or petitions from other claimants. Petitioner is asking the Court for a do-over based on essentially the same facts. The Court must again deny petitioner's request.

Finally, petitioner alleges that VA is failing to process HLRs for "other similarly-situated claimants,"^[22] and he provides the details of three other individuals.^[23] If a class action is what petitioner desires, he must first file a request for class certification and class action (RCA).^[24] Petitioner must file an RCA before the Court can consider certifying any potential class action. The Court already communicated this to petitioner in its January 11, 2023, order.^[25]

For these reasons, it is

ORDERED that petitioner's February 22, 2023, request for a writ compelling the Secretary to provide a higher level review of his claim for a clothing allowance is DENIED.

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^[1] Petition (Pet.) at 1 (defining the Veterans Advocates Group, LLC ("VAG")).

^[2] Pet. at 17.

^[3] Pet. at 2-4; see 28 U.S.C. § 1651(a); Monk v. Shulkin (Monk I), 855 F.3d 1312, 1318 (Fed. Cir. 2017) ("The [AWA] unquestionably applies in the Veterans Court."), aff'd sub nom. Monk v. Wilkie (Monk II), 978 F.3d 1273 (Fed. Cir. 2020); Gardner-Dickson v. Wilkie, 33 Vet.App. 50, 54 (2020) (order) (noting that the AWA gives this Court "the authority to hear petitions and issue writs in aid of our jurisdiction"), aff'd per curiam sub nom. Gardner-Dickson v. McDonough, No. 2021-1462, 2021 WL 5144367 (Fed. Cir. Nov. 5, 2021) (nonprecedential R. 36 judgment).

^[4] Perciavalle v. McDonough, No. 22-6097, 2023 WL 153408 (Vet. App. Jan. 11, 2023) (order).

^[5] 28 U.S.C. § 1651(a); Love v. McDonough, 35 Vet.App. 336, 346 (2022) (per curiam order) ("And our jurisdiction is limited to review of final Board decisions."), appeal docketed, No. 22-2285 (Fed. Cir. Sept. 29, 2022).

^[6] Love, 35 Vet.App. at 346 (quoting Gardner-Dickson, 33 Vet.App. at 55-56); see Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943) ("[A] function of mandamus in aid of appellate jurisdiction is to remove obstacles to appeal ....").

^[7] Monk v. Wilkie (Monk III), 32 Vet.App. 87, 101 (2019) (en banc order) (quoting Kerr v. U.S. Dist. Ct., 426 U.S. 394, 402 (1976)), aff'd in part, dismissed in part sub nom. Monk v. Tran (Monk IV), 843 Fed.Appx. 275 (Fed. Cir. 2021).

^[8] See Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380-81 (2004).

^[9] Erspamer v. Derwinski, 1 Vet.App. 3, 10-11 (1990).

^[10] Love, 35 Vet.App. at 346. Under the Veterans Appeals Improvement and Modernization Act of 2017, when a claimant disagrees with a VA decision, he or she can request HLR so that a senior reviewer reassesses the decision. 38 U.S.C. § 5104C(a)(1)(A). When requesting HLR, a claimant may request an optional one-time telephone conference with the higher-level reviewer. 38 CFR § 3.2601(h) (2022). If a claimant is still dissatisfied after the HLR, he or she can file a supplemental claim or appeal to the Board. 38 U.S.C. § 5104C(a)(1)(A)-(C).

^[11] Martin v. O'Rourke, 891 F.3d 1338, 1344-45 (Fed. Cir. 2018) (citing Telecomms. Rsch. & Action Ctr. v. FCC (TRAC), 750 F.2d 70, 80 (D.C. Cir. 1984)). Those factors are as follows:

(1) the time agencies take to make decisions must be governed by a "rule of reason"; (2) where Congress 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 action 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 impropriety lurking behind agency lassitude" in order to hold that agency action is unreasonably delayed.

Id (citations omitted).

^[12] See Cheney, 542 U.S. at 380-81.

^[13] See Pet. at 1-17.

^[14] Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (refusing to entertain underdeveloped arguments); Evans v. West, 12 Vet.App. 22, 31 (1998) ("Absent evidence and argument, the Court will give no further consideration to this unsupported contention.").

^[15] Monk III, 32 Vet.App. at 101.

^[16] See Cheney, 542 U.S. at 381.

^[17] Locklear, 20 Vet.App. at 416; Evans, 12 Vet.App. at 31.

^[18] Pet. at 12.

^[19] Pet. at 13.

^[20] Pet. at 13-14.

^[21] Ravin v. Wilkie, 31 Vet.App. 104, 113 (2019) (en banc) ("[W]e cannot overrule Congress's judgment based on our own policy views." (quoting SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 580 U.S. 328, 346 (2017))); Ravin v. Wilkie, 30 Vet.App. 310, 317 (2018) ("As it has said time and again, the Court is not in the business of rewriting regulations." (citing Atencio v. O'Rourke, 30 Vet.App. 74, 84 (2018))), aff'd, 956 F.3d 1346 (Fed. Cir. 2020).

^[22] Pet. at 12.

^[23] Pet. at 15-17.

^[24] U.S. VET. APP. R. 22.

^[25] Perciavalle, 2023 WL 153408.

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